C.Y. Somayajulu, J.
1. Defendants 2 and 3 in O.S. No. 597 of 1969 on the file of the Court of II Additional Judge, City Civil Court, Hyderabad, who are the unsuccessful appellants in C.C.C.A. No. 46 of 1985, are the appellants. First respondent is the second plaintiff and the second respondent is the first defendant in the suit. For the sake of convenience the parties hereinafter would be referred to as they are arrayed in the Trial Court.
2. One Ramdas Maharaj @ Ramdas Brahmachari (first plaintiff) filed a petition seeking leave to sue as an indigent person seeking declaration of his title to Ac.6.14 Gts., of land in S.Nos. 182/1 and 182/2 of Gudimalkapur Village, bounded on the East by the border of Moosi Karwan Sahu and Kulsumpura, North by the road from Lunger House to Hyderabad, West by the border of Moosi Lunger House, and South by the river Moosi, hereinafter referred to as the suit property, and for an injunction restraining the defendants from interfering with his possession over the suit property, contending, inter alia, that he purchased the suit property under an agreement of sale dated 30.7.1956 from its pattader Munuruddin for a total consideration of Rs. 2,500/- and paid Rs. 100/- to him towards advance, and took possession thereof. After the death of Munuruddin on 15.7.1957, when he made a request to the heirs of Munuruddin to receive the balance sale consideration and execute a registered sale deed in his favour, they bargained and agreed to sell the suit property to him for Rs. 10,000/- and had on 19.11.1966 executed a sale deed in respect of that property in his favour and got it registered under the provisions of the Registration Act. He also obtained permission from the Tahsildar under the provisions of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (1950 Act) for purchase of the suit property. The defendants, by creating a cloud over his title to the suit property, are trying to interfere with his possession over the suit property. Hence the suit.
3. Soon after filing of the petition seeking permission to sue as an indigent person, first plaintiff passed away. Thereafter, second plaintiff, claiming to be a legatee under a will executed by the first plaintiff, came on record and continued the proceedings.
4. First defendant remained ex parte in the Trial Court and the appeal and this appeal also.
5. Defendants 2 and 3 filed a written statement disputing the validity of the will said to have been executed by the first plaintiff and the status of the second plaintiff as legal representative of first plaintiff and his competency to continue the proceedings initiated by the first plaintiff, and also disputing the validity of the agreement of sale with Munuruddin and the sale deed said to have been executed by the legal representatives of Munuruddin in respect of the suit property in favour of the first plaintiff, and contending that they have purchased vacant land with a building bearing E.P.H.No. 142 (old), i.e., 829 (new), corresponding to present E-6-829, 830, of an extent of Ac.5.39 Gts., at Moghal-ka-Nala, Karwan Sahu Village, bounded on the North by Moosi River, South by road to Golconda, East by Moghal-ka-Nala and West by Graves, from the first defendant under a registered sale deed dated 29.2.1968 for a valid consideration of Rs. 20,000/-, and that that property, was notified as an Evacuee property in 1950 by the Administrator of Evacuee Properties, and that their vendor, i.e., first defendant, had purchased the said property in a public auction that was held on 10.11.1960 and was put in possession thereof, and after purchase by them from the first defendant they were put in possession of that property, and that the second plaintiff, under the guise of the sale deed said to have been executed by the heirs of Munuruddin, is trying to interfere with their possession over the property purchased by them from the first defendant, and since the property purchased by them was an Evacuee property, second plaintiff can have no right thereon.
6. Basing on the above pleadings, the Trial Court framed seven issues and four additional issues for trial. In support of his case, second plaintiff, besides examining himself as PW.2, examined five other witnesses as PWs.1, 3 to 6 and marked Exs.A.1 to A.68. On behalf of defendants 2 and 3, second defendant examined himself as DW.1 and three other witnesses as DWs.2 to 4 and marked Exs.B.1 to B.18. Exs.X.1 to X.4 were marked through witnesses. The Trial Court decreed the Suit in favour of second plaintiff. Aggrieved thereby, defendants 1 and 2 preferred C.C.C.A. No. 46 of 1985, which was dismissed by a learned Single Judge of this Court. Hence this Letter Patent Appeal.
7. It is relevant to mention that earlier, on 31.12.1976, when the Trial Court decreed the suit, defendants 1 and 2 preferred C.C.C.A. No. 45 of 1977 to this Court questioning the said decree. A learned Single Judge of this Court set aside the said decree and remitted the case to the Trial Court after framing an additional issue, reading, "Whether the suit land referred to in the document of title claimed by Ramdas Maharaj and document of sale by the authorities of Administration of Evacuee Property Act, 1950 relate to one and the same land, and if so who amongst the contestants has title to the suit land?", for fresh disposal. After remand, the Trial Court permitted the parties to adduce fresh evidence and again decreed the suit, which was confirmed in C.C.C.A. No. 46 of 1985 aforementioned.
8. The main contention of Sri V. Venkata Ramana, learned Counsel for defendants 2 and 3 in this appeal, is that both the Trial Court and the learned Single Judge were in error in not keeping in view that the case was at large after the earlier judgment of the Trial Court was set aside by this Court in C.C.C.A. No. 45 of 1977, and so findings have to be given afresh on all the issues, and seem to be under an impression that the case was remitted only for giving a finding on the additional issue framed by this Court in CCCA No. 45 of 1977, and they gave finding on that issue only, and had neither considered nor gave a finding on the several issues framed in the suit, more importantly the issues relating to the truth and validity of Ex.A.3 will, said to have been executed by the first plaintiff, and about first plaintiffs title over the suit property. It is his contention that the learned Single Judge, in spite of bringing that fact to his notice also, did not focus his attention to that aspect, and had even failed to frame the points that arise for consideration in the appeal, and had, without going deep into the questions involved and without considering all the contentions raised, confirmed the judgment of the Trial Court, and so the judgments of both the learned Single Judge and the Trial Court are liable to be set aside and the case has to be remitted to the Trial Court for a finding on all the issues. It is his contention that both the learned Single Judge and the Trial Court were in error in coming to a conclusion that the property covered by Ex.A.1, i.e., the suit property, is different from the property that was sold to the first defendant under Ex.B.4, when the voluminous documentary evidence available on record clinchingly shows that the parties are litigating for the same property. It is his contention that both the learned Single Judge and the Trial Court failed to keep in view the law laid down by the Supreme Court in M.M.B. Catholics v. M.P. Athanasius, AIR 1954 SC 526, that in a suit for declaration of title the plaintiff can succeed only on the strength of his title but not on the weakness of the case of the defendant, and so the burden is heavy on the plaintiffs to establish that they have title to the suit property and they cannot succeed merely on the basis of the weakness, if any, in the case of the defendants. He further contended that the learned Single Judge and the Trial Court failed to see that plaintiffs did not adduce any evidence, except pahanies, to show that Munuruddin had title to the plaint schedule property, and contended that since entries in Revenue Record do not confer title as held in Mahendra C. Mehta v. Kousalya Co-operative Housing Society Ltd., , the judgment of the learned Single Judge, confirming the decree of the Trial Court, is liable to be set aside. The contention of Sri Vilas V. Afzulpurkar, learned Counsel for the second plaintiff is that the well considered and well reasoned judgments of the Trial Court and the learned Single Judge need no interference, because even a mere look at the boundaries relating to the plaint schedule property and the property over which defendants 2 and 3 are claiming title to under Ex.B.1 sale deed are entirely different. It is his contention that the suit property is situated to the north to Moosi river, whereas the property claimed by defendants 2 and 3 is to the south to Moosi river, and so the question of the two properties being one and the same cannot and does not arise. He relied on Gopal Lal v. Purna Chandra, AIR 1922 PC 253, P.K.A.B, Co-operative Society v. Govt. of Palestine, AIR 1948 PC 207, and Siviseshamuthu v. Gopalakrishna, , in support of his contention that boundaries mentioned in documents of title are very important to localize the land covered thereby.
9. Since a learned Single Judge of this Court, in CCCA No. 45 of 1977, set aside the earlier decree and judgment of the Trial Court, and framed an additional issue and remitted the case to the Trial Court for fresh disposal, the earlier judgment of the Trial Court was set at naught, and so the Trial Court, which permitted the parties to adduce fresh evidence after remand, ought to have given its findings on all the issues framed in the suit, including the additional issue framed by the learned Single Judge in C.C.C.A. No. 45 of 1977 while remanding the case. Since the Trial Court, after remand, did not give its findings on all the issues framed, but disposed of the case by giving a finding only on the additional issues framed in CCCA No. 45 of 1977, the contention of the learned Counsel for the appellants that the Trial Court committed an error, is well founded and hence is accepted. It is also true that the learned Single Judge, while disposing of CCCA No. 46 of 1985, did not frame any point for consideration as contemplated by Rule 31 of Order 41 C.P.C., and also did not give his findings on the issues settled by the Trial Court. But that fact, per se, is not a ground tq set aside the judgment of the learned Single Judge, because non-framing of a point for consideration in an appeal, by itself, is not a ground to set aside that judgment, because a Full Bench of Allahabad High Court in Durga Thathera v. Narain Thathera, AIR 1951 Allahabad 597, and learned Single Judges of Madras and Karnataka High Courts in Nataraja Pillai v. Subbakkal, 1954 MWN 719, and Asst. Commissioner v. K.N. Nagaraja, AIR 1983 Karnataka 111, held that substantial compliance with the requirements of Rule 31 of Order 41 C.P.C. is enough and the mere fact that point(s) for consideration is (are) not formulated by the appellate Court, by itself, would not vitiate the judgment of the appellate Court. A reading of the judgment of the learned Single Judge shows that he had gone into the question as to whether the property in respect of which the plaintiffs are claiming title, i.e., the suit property, is the same as the property in respect of which the defendants are claiming title to, and came to a conclusion that those properties are different, as was found by the Trial Court also, and hence confirmed the judgment of the Trial Court. Therefore, there was substantial compliance with Rule 31 of Order 41 C.P.C. by the learned Single Judge.
10. The failure of the learned Single Judge and the Trial Court in giving specific findings on the other issues settled by the Trial Court, by itself, is not a ground to set aside their judgments, since Rule 24 of Order 41 C.P.C. empowers the appellate Court to finally determine the suit, if the evidence on record is sufficient to do so. This suit was instituted in 1968. The evidence on record is sufficient to enable this Court giving finding on all the issues framed in the suit. Therefore, in view of Rule 24 of Order 41 C.P.C., instead of remanding the case for findings on the other issues, the findings on those issues are being given in this appeal itself.
11. The issues framed by the Trial Court are:
1. Whether the plaintiff is the legal heir of late Ramdas Maharaj?
2. Whether the plaintiff is in possession of the suit lands?
3. Whether the will dated 24.3.1968 is true and valid?
4. Whether the suit properties are Evacuee Properties and the Court has got no jurisdiction?
5. Whether the suit is barred by limitation?
6. Is the suit bad for mis-joinder of parties or for non-joinder of parties?
7. To what relief?
The additional issues framed are:
1. Whether the plaintiff has title to the suit property?
2. Whether the plaintiff is entitled to the declaration prayed for?
3. Whether the plaintiff is entitled to the injunction prayed for?
The additional issue framed by this Court in CCCA No. 45 of 1977 is:
"whether the suit land referred to in the document of title claimed by Ramdas Maharaj and document of sale by the authorities of Administration of Evacuee Property Act 31 of 1950 relate to one and the same land, and if so who amongst the contestants has title to the suit land?"
Keeping in view the above issues, the following points, which would cover all the above issues, are framed for consideration:
(1) Whether the suit land referred to in the document of title claimed by Ramdas Maharaj and document of sale by the authorities of Administration of Evacuee Property Act 31 of 1950 relate to one and the same land, and if so who amongst the contestants has title to the suit land?
(2) Whether the Will dated 24.3.1968 is true and valid? And
(3) Whether the plaintiffs are entitled to the declaration and injunction sought?
12. Point No. 1: The specific case of the plaintiffs is that first plaintiff, having entered into an agreement with Munuruddin in 1955 to purchase Ac.6.14 Gts., with a-small old structure bearing Municipal No. 13-6-829 situated in S.Nos.182/1 and 2 of Gudimalkapur Village (i.e., the suit property), entered into possession thereof and has been enjoying the same and had obtained a registered sale deed dated 19.11.1966 from the heirs of Munuruddin and thus acquired title to the suit property. It is no doubt true that the plaintiffs did not adduce any evidence to show as to how Munuruddin acquired title to the aforesaid S.Nos. 182/1 and 2, i.e., suit property. That fact, by itself, would not be a ground to non-suit the plaintiffs, if the evidence on record shows that none else except Munuruddin was in possession and he only could have been the owner of the suit property. Since it is the case of defendants 2 and 3 that first defendant, having purchased the property bearing No. E-6-829, 830 in an extent of Ac.5.39 gts., at Mogal-Ka-Nala, belonging to Mirza Dawar Ali Baig (who was declared as an evacuee) in a public auction held on behalf of the Administrator of Evacuee Property, in turn sold the same to them under Ex.B.1 registered sale deed, if the plaintiffs are able to establish that land in S.Nos.182/1 and 2 of Gudimalkapur, i.e., the suit property, was never in possession of, nor was the property of Mirza Dawar Ali Baig, the onus to establish that the property purchased by them under Ex.B1 is in S.Nos.182/1 and 2 of Gudimalkapur would shift to defendants 2 and 3, because the Supreme Court in Raghavamma v. Chenchamma, , held that onus of proof shifts, and such shifting of onus is a continuous process in the evaluation of evidence. In fact, in Devadattam v. Union, , it is held that
when evidence has been led by the contesting parties, abstract doctrine of onus of proof is out of place, and truth or otherwise of the case must be adjudged on the basis of the evidence led by the parties. It is also useful to extract the observation of Lord Han Worth M.R. in Stoney v. East Bourne R.D. Council, 1927 (1) Ch. 367 at 397, on the question of onus:
"It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence."
Keeping the above position of law in view, the evidence on record has to be scrutinized to find out if the plaintiffs have established that the suit property in S.No. 182/1 and 2 is different from the property bearing No. F-6-829, 830, Moghal-Ka-Nala, in an extent of Ac.5.39 gts., notified as evacuee property and taken over custody of by the Custodian of Evacuee Property.
13. Ex.A.4, copy of the Pahani for 1351F, shows that land bearing the name "yetigattu chelaka" was in possession of Munurnddin by raising 'Choppa'. Ex.A.5, certified copy of Pahani for the year 1951 relating to S.Nos. 182/1 and 2 of Gudimalkapur Village, bearing the name "Yetigattu Chelaka", shows Munurnddin as the pattedar of those survey numbers. All the columns relating to cultivation, etc., are kept blank though columns 4 to 7 relating to 'Rakam' (the particulars of tax or cess) are filled. Ex.A.6, a certified copy of Pahani for the year 1954 (which is in a torn condition), shows that Munuruddin is the pattedar of the land in S.Nos. 182/1 and 2, bearing the name "Yetigattu Chelaka", and raised crop in S.No. 182/1. ExA.7, a certified copy of Pahani for 1962-63 in respect of S.Nos. 182/1 and 2, bearing the name "Yetigattu Chelaka", shows that Munuruddin, the Pattedar, raised Jawar crop in Ac.5.12 gts., and Tomato in Ac.1.00 in S.No. 182/1 during that year, and S.No. 182/2, whose extent is Ac.0.02 gts., has a house, and that house was in possession of Munuruddin. Ex.A.9 and A.10, certified copies of Faisal Patties for the years 1967-68 relating to S.Nos.182/1 and 2 of Gudimalkapur Village, show that Munuruddin, Pattedar of Ac.6.14 gts., of land in S.No. 182/1 and 2, sold the same to Ramdas Brahmachary (first plaintiff), and that as per the proceedings of the Tahasildar in A3/617/67 and A1/9413/67, that land is mutated in the name of Ramdas Brahmachary (first plaintiff). Since Ex.A.11, a certified copy of the Pahani for the year 1969-70, is subsequent to the institution of the suit as O.P. No. 4 of 1968 on 9.2.1968, it need not be taken into consideration. Ex.A.12 is the proceedings of the Tahsildar, Hyderabad (Urban) dated 31.8.1967, according sanction under Sections 47 and 48 of 1950 Act to Shafiuddin (PW.1) to alienate Ac.6.14 gts., in S.Nos.182/1 and 2 of Gudimalkapur Village to Ramdas S/o. Ramnarayan (first plaintiff). Exs.A.13 to A.19, A.22 to A.27 are tax receipts showing payment of land revenue in respect of S.Nos.182/1 and 2 of Gudimalkapur.
14. The evidence of PW.4, the Village Patwari of Gudimalkapur Village from 1958, examined on 25.10.1976, is that he issued Exs.A.16 to A.18, A.22, A.25 to A.27, and that Munuruddin was the pattedar of S.Nos. 182/1 and 2 of Gudimalkapur, and that patta in respect of those lands was transferred in the name of first plaintiff in 1968, and that those lands are always in possession of plaintiffs and that nobody else except plaintiffs are in possession thereof. During cross-examination he stated that there is a small building in that land whose total extent is Ac.6.14 gts., but he cannot say the house number of that structure and that he does not know if Government of India brought that property to auction as an evacuee property and if the auction purchaser was given a certificate and if the Tahsildar delivered possession of that property to the auction purchaser on 5.2.1968. The statement of PW.4 in his chief-examination that plaintiffs have been paying taxes and that he issued the tax receipt mentioned above is not denied or disputed during his cross-examination. So, that statement of him in the chief-examination has to be accepted as true. It is well known that payment of land revenue is prima facie evidence of possession. Thus, the evidence of PW.4 establishes possession of plaintiffs over the suit property from 1958 onwards till 1976.
15. Exs.A.20 and A.21 are attachment orders issued under Section 8 of Revenue Recovery Act, 1864 for arrears of land revenue. The entries in Ex.A.20 are in Urdu and English translation thereof is not furnished. Some of the entries in Ex.A.21 are in Urdu. From the figures mentioned and the headings in the columns, which are in Telugu, it is seen that for the arrears of Rs. 132.38 ps., up to 1962 orders of attachment were passed. Ex.A.28, pattedar passbook, contains entries showing that Ramdas Brahmachary (first plaintiff), who is in possession of Ac.6.12 gts. in S.No. 182/1, and Ac.0.02 gts. in S.No. 182/2 of Gudimalkapur under an agreement of sale from Munuruddin, paid land revenue of Rs. 30.81 for 1964-65, Rs. 30.81 for 1965-66, Rs. 31.01 for the year 1966-67 and Rs. 30.81 for the year 1967-68. Ex.A.31 shows that Ramdas, S/o. Ramnarayan (first plaintiff) paid the arrears of tax from 1961 to 1966-67 amounting to Rs. 243-73 in respect of house bearing No. 13-6-829 to the Municipal Corporation of Hyderabad.
16. Ex.A.32, notice issued to Munuruddin under Rule 3(i) of the A.P. Land Revenue (Enhancement) Rules 1967 (1967 Rules) calling for his objections for collecting Rs. 10.29 as additional land revenue in respect of the land in S.No. 182/1 of Gudimalkapur village, has great significance and relevance in finding out if Ac.6-12 gts. in S.No. 182/1 of Gudimalkapur is in possession and enjoyment of Munuruddin, or W3S in possession of the Custodian of the Evacuee Property, because as per Section 7(1) of A.P. Land Revenue (Enhancement) Act, 1967 (1967 Act) the additional land revenue payable under 1967 Act by each pattedar should be determined for the first Fasli year after the commencement of that Act, and be assessed by the Tahsildar as per the provisions of Sections 3 or 4 or 5, as the case may be, and the additional land revenue so determined would continue to be in force until modified by the competent authority under that Act, Section 7(2) of 1967 Act contemplates a notice being served on each Pattedar specifying the particulars and the extent of land held by him and the land revenue payable on that land and the additional land revenue payable under the 1967 Act. According to Rule 3 of 1967 Rules, the notice referred to in Section 7(2) of 1967 Act shall be the individual notice in Form No. I to be served on each pattedar and public notice in Form No. II to be published. Since Ex.A.32, issued under the 1967 Act and 1967 Rules, shows that Munuruddin is the registered Pattedar of the land in S.No. 182/1 of Gudimalkapur, it is clear that he only is the pattedar of that land. If S.No. 182/1 of Gudimalkapur was notified as an evacuee property as belonging to Mirza Dawar Ali Baig, question of issuing notice under 1967 Act and 1967 Rules to Munuruddin describing him as pattedar of S.No. 182/1 of Gudimalkapur does not arise. If evacuee property is exempt from payment of tax, no notice under 1967 Act or 1967 Rules in respect of S.No. 182/1 of Gudimalkapur would have been issued to anybody. If an evacuee property also is assessable to tax, notice under 1967 Act and 1967 Rules would have been issued to the Custodian of the Evacuee Property. Thus, Ex.A.32 establishes beyond doubt that Munuruddin only is the Pattedar of S.No. 182/1 of Gudimalkapur and that it was not the property or Mirza Dawar Ali Baig and that it did not vest in the custodian of Evacuee Property.
17. Ex.A.33, order of the Tahsildar, Hyderabad Urban Taluk, dated 24.8.1967 in File No. A3/6171/67 according sanction to Sri Shafiuddin S/o. Munuruddin to alienate the land in S.Nos. 182/1 and 2 of an extent of Ac.6.14 gts., at Gudimalkapur to Ramdas Brahmachary (first plaintiff), shows that Shafiuddin (PW1) filed petition before the Tahsildar in 1960 under Sections 47 and 48 of the 1950 Act seeking permission to alienate Ac.6.14 gts., in S.Nos. 182/1 and 2 of Gudimalkapur (the suit property) to Ramdas Brahmachary, S/o. Ramnarayan (first plaintiff) and that that file was transferred to Tahsil West, consequent to the delegation of powers under Sections 47 and 48 of the 1950 Act to the Tahsildar, Urban, and that that file was closed in 1962 without passing any orders, and when Ramdas (first plaintiff) again filed petition in 1966, he was directed to apply under Section 50-B of 1950 Act, and when he filed such petition, though notice was issued to the alienor Shafiuddin (PW.1) he did not appear, and as Section 50 of 1950 Act does not apply to the transaction as document in favour of Ramdas (first plaintiff) is subsequent to 21.4.1961, on advice, first plaintiff filed a petition under Sections 47 and 48 of the 1950 Act, whereupon a notice inviting, objections was published in the village, but no objections were received either during or after the enquiry, and as there are no dues of land revenue, or Taccavi or Excise dues to the government in respect of that land, permission to alienate the land in S.Nos. 182/1 and 2 of Gudimalkapur in favour of Ramdas Brahmachary was accorded. If the suit property was ever in the custody of the Custodian of Evacuee Property, the Tahsildar, Urban, Hyderabad would know about the same and so he would not have accorded Ex.A.33 order according permission to PW.1 to alienate the suit property to the first plaintiff.
18. Ex.A.34, certified copy of Pahani for the year 1960 relating to Ac.6.12 gts., of S.No. 182/1 and Ac.0.02 gts., in S.No. 182/2 of Gudimalkapur Village (i.e., suit property) describes it as "Yetigattu Chelaka" and shows Munuruddin as the Pattedar and Ramdas Brahmachary (first plaintiff) as the person in possession thereof by raising Jawar crop in Ac.5.37 gts. in S.No. 182/1. It shows that S.No. 182/2 is covered by a house. Ex.A.35, copy of Pahani for the year 1967-68 in respect of S.No. 182/1 and 2 of Gudimalkapur (suit property), describes it as "Yetigattu Chelaka" and shows Munuruddin as the pattedar and Ramdas Brahmachary as the person in possession thereof by raising Jawar crop in Ac.4.00 in S.No. 182/1 and as in occupation of the house in S. No. 182/2.
19. Exs.A.38, 39, 46 and 50 need not be taken into consideration because they came into existence subsequent to the filing of the suit.
20. Ex.A.49, Pabandi '(Ryotwari) Announcement Register, shows that Ac.6.12 gts., in S.No. 182/1 and Ac.0.02 gts., in S.No. 182/2 of Gudimalkapur (the suit property) have the field name "Yetigattu Chalaka' and are being assessed to tax at Rs. 24.01 and 0.65 respectively. This tallies with the description in Exs.A.5 to A.7, A.34 and A.35. Since Ex.A.4 also relates to 'Yetigattu Chalaka', it can be taken that Ex.A.4 also relates to the suit property. This apart, the statement of PW.2 in his chief examination that Ex.A.4 relates to the suit land, was not challenged in his cross-examination. Therefore, it is clear that even in 1351 Fasali Munuruddin, the Pattedar, raised 'Choppa' in the suit property. If Mirza Dawar Ali Baig had any interest in "Yetigattu Chalaka" or S.Nos. 182/1 and 2 (the suit property), his name would have been mentioned in Exs.A.4 to A.7, A.34 and A.35 pahanies as pattedar. So, it is clear that Mirza Dawar Ali Baig was not the pattedar of "Yetigattu Chalaka" i.e., S.No. 182/1 and 2 of Gudimalkapur, i.e., the suit property.
21. In Exs.A.1 and A.5, Pahanies, for 1351 F and for the year 1951 respectively, in the column relating to "Sarkari or Inam", it is stated 'Sarkari', which means that S.Nos. 182/1 and 2 (suit property) is not Inam land. Merely because the word 'Sarkari' is used in those pahanies, by describing the person in possession as 'pattedar', the remark 'Sarkari' cannot be taken to mean that the land therein belongs to the Government. It should not be forgotten that it is also not the case of defendants 1 and 2 that S.Nos. 182/1 and 2 (the suit property) belongs to the Government and that Munuruddin encroached into Government land.
22. Section 2(11) of A.P. (Telangana Area) Land Revenue Act, 1317F (Revenue Act) defines 'Pattedar' as:
"The person who is directly responsible to the Government for payment of land revenue, and whose name is entered as such in Government records, whether he is personally in possession of the holding or through his Shikimidar."
So, pattedar cannot be equated to an encroacher. Section 57(3) of Revenue Act empowers the Collector summarily evicting an encroacher from the Government land. Section 58 of Revenue Act lays down that an occupancy right is heritable and transferable. "Occupancy" as per Section (8d) of Revenue Act is 'possession of land held by occupant'. 'Occupant' as per Section (8c) of the Revenue Act means 'holder in occupation of unalienated land other than an asami shikmi, etc'. 'Occupation' as per Section (8a) of Revenue Act means 'possession'. Since the pahanies and tax receipts produced by plaintiffs show that Munuruddin has been in possession of S.Nos. 182/1 and 2 of Gudimalkapur (suit property) at least from 1351F, and has been paying land revenue to the Government, and since there is nothing on record to show that Government levied penalty against him, but on the other hand has been describing him as the 'pattedar', by virtue of Section 58 of Revenue Act, he has power to alienate the same. If S.Nos. 182/ 1 and 2 of Gudimalkapur (the suit property) belong to the Government, it is for the Government to take steps to evict the person in unauthorised occupation of its land. Since possession is nine points in law, even if the suit property belongs to Government, till Government takes steps to remove the encroachment as per the procedure established by law, others have no right to interfere with the possession of the occupant. It is well known that a first trespasser can prevent all others, except the true owner, from interfering with his possession, and can seek protection of his possession from Court.
23. It is no doubt true that in Mahendra C. Mehta case (supra) it is held that the entries in revenue records do not confer title. The revenue records are useful to find out who raised the crop in a particular land, and what is the land revenue assessed thereon, and who the pattedar of that land is. Therefore, the entries in the pahanies describing Munuruddin as pattedar and showing the person that raised the crop in the extent mentioned therein, cannot be ignored. They do have relevance. As held in that decision, only in cases where no crop is raised in the land, the entry in the column relating to 'person in actual possession' will have no significance. But if crop is raised, the entry has significance and relevance.
24. Under Ex.B.3, public notice, property bearing No. F-6-829, 830, Mogal-Ka-Nala, Karwan Sahu along with the plot of land of Ac.5.39 gts., behind on either side of the house, belonging to Mirza Dawar Ali Baig was published for auction. None of the documents produced by defendants 2 and 3 show the survey number of the said property or the boundaries thereof. None of the documents on record show that Mirza Dawar Ali Baig was ever in possession of the land in S.Nos. 182/1 and 2 of Gudimalkapur (the suit property), or that he was the pattedar of that property at any point of time.
25. PW.6, a clerk in the Office of the Commissioner of Survey and Settlement and Land Records and the custodian of the evacuee property, stated that entry at S.No. 194 at page-33 (of the book containing list of properties taken custody of by the Custodian of Evacuee Property), marked as Ex.X.1, relates to property bearing No. F-6-829 and 830 with agricultural lands on both sides, at Moghal-Ka-Nala, belonging to Mirza Dawar Ali Baig, but the boundaries thereof are not mentioned therein, and that entry at S.No. 178 in another register, marked as Ex.X.2, also relates to H.No. F-6-829 and 830 at Moghal-Ka-Nala, Karwan Sahu, belonging to Mirza Dawar Ali Baig, and in that book that property is described as 'graves and dry land depending on rain water', and that Ex.X.3 sketch relates to the building in the land mentioned in Ex.X.2. During cross-examination he stated that Exs.X.2 and X.3 were prepared on 30.3.1957 and that he does not know when that property was declared as evacuee property and that he does not know when Ex.X.1 was prepared and that the original of Ex.B.5 is not traceable. When questioned as to whether there is any record to show how H.No. F-6-829 and 830 became H.No. E-6-829 and 830, he stated that he searched for the records received from Government of India, but no such record is available, and on being addressed, Government of India sent Ex.X.4 informing that no record in that respect is available
26. In Ex.X.2 relating to the property covered by F-6-829 and 830, Ex.X.3 sketch shows that the building in that land is bounded on West by Tar Road, on East by agricultural land, on North and South by plots, and its value is shown as Rs. 1,200/-, as it was "robbed of its doors and windows and is unused". In Column No. 14 of Ex.X.2 relating to "information of the tax on the property by 1950-51" it is noted "CBI property. No tax". In Column No. 15 of Ex.X.2 with heading "Annual rent assessed for current year according to custodian", it is noted 'not assessed'. In Column No. 7 of Ex.X.2 with heading "whether there is electricity and sanitary installations", it is noted 'no electricity and no sanitary installations'. In Column No. 10 of Ex.X.2 with heading "condition of the property, i.e., good, fair or poor structurally", it is noted 'poor - (uncared for and cobbed)".
27. In view of the entry in column No. 14 of Ex.X.2 reading "CBI property -No tax", Ex.A.40, copy of the Assessment Register of Municipal Corporation of Hyderabad relating to H.No. 11-1-829, CIB Mallepally, corresponding to old No. F-6-829, has significance, more so because Ex.A.40 shows that that property was assessed to tax from 1.4.1968 only. Ex.A.41 and A.42 relate to subsequent years for the same property. Ex.A.43 extract from the Assessment Register of Hyderabad Municipal Corporation from 1965 to 1973 shows that H.No. 11-1-830, CIB, belonging to Yakamma, had old No. F-6-830 and was assessed to tax from 1.4.1968. Ex.A.44 and Ex.A.45 relate to the same house for subsequent periods. It is no doubt true that entries in Column No. 14 of Ex.X.2 shows 'CBI property' but Ex,A.40 to A.45 show 'CIB property'. There might be clerical error either in column No. 14 of Ex.X.2 or Ex.A.40 to A.45. Since it is stated in Exs.A.40 and A.43 that houses bearing No. 11-1-829 and 11-1-830 were being assessed to tax only from 1.4.1968 it is clear that earlier thereto they were not being assessed to tax. In contrast to the entries in Ex.A.40 and Ex.A.43, the entries in Ex.A.31 show that building bearing No. 13-6-829 was being assessed to tax at Rs. 28,58 per year and that arrears of house tax amounting to Rs. 212.15 ps from 1961 was collected from the first plaintiff on 28.7.1967 in respect of that building. Therefore, it is clear that the building bearing Door No. 13-6-829 was being assessed to tax by the municipality from 1961 if not prior thereto, but the properties shown in Ex.A.40 and Ex.A.43 were assessed to tax for the first time from 1.4.1963. Since the evidence of PW.6 shows that Ex.X.2 and Ex.X.3 were prepared on 30.3.1957, from the entries in Ex.X.2 it is clear that nobody was in occupation of the building bearing No. F-6-829, 830 by 30.3.1957. Ex.A.6 Pahani for the year 1954 shows that the building in S.No. 182/2 was under the occupation of Munuruddin. So, it is easy to see that S.No. 182/1 and 2 (i.e., suit property) does not belong to Mirza Dawar Ali Baig, and that he was never in occupation of the suit property, for the same being declared as an evacuee property, after his fleeing to Pakistan.
28. Ex.B.2, said to be a true copy of the notification No. 355 dated 22.4.1954, obtained on 6.6.1968, shows that all the properties belonging to Mirza Dawar Ali Baig, S/o. Mohd. Ali Baig, Mechanical Engineer in PWD, including H.No. 142 (old), 829 (new) together with a big plot of land situated on either side of the house and old Mosque bearing No. E-830 situated on the land at Moghal-Ka-Nala, Karwan Sahu, Hyderabad Deccan, was declared as an evacuee property and vested in the custodian of the evacuee property, and that one Ramesh Kumar of Hyderabad made the application, for that copy, on 4/5.6.1968 and that that copy was supplied to him on 6.6.1968. Who that Ramesh Kumar, who applied for Ex.B.2, is not known. We cannot assume that it is the first defendant that made the application for Ex.B.2, because first defendant did not go into the witness box to swear to the fact that he obtained and gave Ex.B.2 to the defendants 2 and 3. The evidence of PW.6 shows that no record is available to show how F-6-829 and 830 became E-6-829 and 830. So, even assuming that Ex.B.2 is a certified copy issued by the Office of the Custodian of Evacuee Property, Hyderabad, in view of the entries in Exs.X.1 and X.2, which are original official records, it is clear that property bearing F-6-829 and 830 only, but not 829 (new) and E-830 (as shown in Ex.B.2), was declared an evacuee property. Therefore, the possibility of a typographical error creeping into Ex.B.2 cannot be ruled out. It is also pertinent to note that Ex.B.2 does not refer to E-6-829 or E-829, but relates to H.No. 142 (old) 829 (new) and 'old Mosque' bearing No. E-830. When under Exs.A.56 and A. 57 second plaintiff was informed that certified copies pertaining to the properties bearing Municipal Nos. F-6-829 and 830 and E-6-829 and 830, and the properties taken over in Gudimalkapur and Karwan Sahu as evacuee property, cannot be given to him as they contain Government correspondence, how he could obtain Ex.B.2 can only be explained by the person who applied for and obtained that document, i.e., Ex.B.2. But that person was not examined as a witness by defendants 1 and 2. Very significantly PW.6 was not confronted with, or questioned about, Ex.B.2 by defendants 2 and 3 during his cross-examination though he was questioned about Ex.B.5. Since Ex.B.2 relates to E-830, which is an old mosque and the property adjacent thereto, and since there is no mosque in S.Nos. 182/1 and 2 of Gudimalkapur (suit property), it is clear that Ex.B.2 does not relate to the suit property.
29. Since the plaintiffs are claiming title to the entire extent of land in S.Nos.182/ 1 and 2 and since the extent of the land in S.Nos, 182/1 and 2 even as per the Government record, as disclosed from Ex.A.7 and other pahanies, is Ac.6.14 gts., and since the said land is delineated in Ex.A.8 sketch prepared by the Government and tallies with Ex.B.15, the village map produced by defendants 2 and 3, there, in fact, is no need for the plaintiffs to give boundaries of the land in S.Nos. 182/1 and 2 (the suit property), because boundaries only help in localizing a land and so they would have relevance only when part of a survey number is being claimed. No doubt, in cases where there is a discrepancy in the survey number and the boundaries given in a document, boundaries prevail over the survey number given in the document. In respect of the property belonging to Mirza Dawar Ali Baig, taken over by or vested in the custodian of evacuee property, except the house number or the building number, no survey number or the boundaries of that property, for identification, are given. Neither in Ex.B.4 certificate of sale nor in Ex.B.5 corrigendum, which is issued several years of the sale and the genuineness of which is being disputed by the plaintiffs, boundaries of the property sold are mentioned. But, Ex.B.1 sale deed said to have been executed by first defendant in favour of defendants 2 and 3 contains the boundaries of the land sold. The best person to speak as to how, and on what basis, he mentioned the boundaries of the property sold by him, when Ex.B.4 and Ex.B.5 do not contain any boundaries or survey number, is the first defendant. Defendants 2 and 3, who claim to have purchased the property purchased by first defendant, have to prove Ex.B.1 by examining its executant, i.e., the first defendant. But, for the reasons best known to them, defendants 2 and 3 did not think it fit to examine the first defendant as a witness on their behalf. The evidence adduced by defendants 2 and 3 does not prove Ex.B.1, sale deed in their favour, as neither its executant nor anybody present at the time of its execution or registration is examined. In the above circumstances, the non-examination of first defendant as a witness on their behalf entails an adverse inference being drawn against defendants 2 and 3.
30. The evidence of DWs.2 and 3, examined by defendants 2 and 3 on their behalf, also supports the contention of plaintiffs that S.Nos. 182/1 and 2 of Gudimalkapur, i.e., the suit property, belongs to Munuruddin, and is not the property of Mirza Dawar Ali Baig. DW.2, daughter of Munuruddin, admitted in her cross-examination that her father was the pattedar of suit property and that she does not know in whose possession the suit property is, and that she did not file any suit in respect of the suit property, Even in his chief-examination DW.3 stated that his father, who died in 1957, was the owner of the suit property. No doubt, he stated that his father had litigation with the Government as Government claimed the suit property to be its, and that he did not give power to PW.1 to sell the suit property to the plaintiffs. During cross-examination he admitted that PW.1 used to deal with the suit property after the death of his father and that he does not know in whose possession the suit property is, and who is paying taxes thereto, and that he did not initiate any proceeding with respect to the suit property, and that he does not know the boundaries of the suit property.
31. Merely because DW.3 stated in his chief examination that Government is claiming the suit property as its, suit property would not become the Government property. For the reasons mentioned towards the end of para-22 above, even if the suit property is the Government property, plaintiffs, who are in possession thereof, are entitled to seek declaration of their title thereto as against the defendants, who have no right in S.Nos. 182/1 and 2 of Gudimalkapur, i.e., suit property, and protect their possession till Government evicts them by taking recourse to due process of law. Here it should be made clear that an evacuee property is not and would not become the property of the Government. A Division Bench of this Court, relying on the decisions of the Madras High Court and the Supreme Court, held in Mohd. Ali v. Bhagirathlal, , that it is not the object of the
Administration of Evacuee Properly Act to make Government or the custodian of the evacuee property, the proprietor or owner of the property declared as evacuee property and that notwithstanding the declaration the property would continue to be the property of the evacuee and that the custodian only acts as a manager or statutory agent of the evacuee for due administration, preservation and management of the same. Except the ipsi dixit of DW.3, who is the witness of defendants 2 and 3, there is no other evidence on record to show that Government ever claimed title to, or has any right, over any part of the suit property. So, merely because DW.3 stated that the Government claimed the suit property to be their property, when, after an enquiry under 1950 Act, the Tahsildar accorded permission to alienate the suit property in favour of first plaintiff, it cannot be said that Government ever claimed title to the suit property, as the Tahsildar would not have accorded Ex.A.12 permission under 1950 Act to PW.1 to alienate the suit land in favour of the first plaintiff, if the Government Had a claim thereon.
32. Since the evidence of DWs.2 and 3 also shows that the suit property is the property of their father Munuruddin, whose property was not notified as an evacuee property, and since there is nothing on record to show that the suit property ever belonged to Mirza Dawar Ali Baig, who was declared as an evacuee, the suit property did not vest in the custodian of evacuee property, and so Ex.B.4 sale certificate or Ex.B.5 corrigendum do not and cannot relate to the suit property.
33. Evidence adduced by the parties relating to the question as to what are the corresponding numbers of H.No. E-6-829 & 830 and F-6-829 & 830 are, is not relevant for deciding this point, because there is nothing on record to show that S.Nos. 182/1 and 2 of Gudimalkapur, i.e., suit property, ever belonged to Mirza Dawar Ali Baig. On the other hand, the ample evidence on record, including Ex.A.33 proceedings of the Tahsildar and the evidence of DWs.2 and 3 shows that Munuruddin is recorded as the pattedar of the suit property from 1351 Fasli. In these circumstances, it is for defendants 2 and 3 to establish that the suit property belonged to Mirza Dawar Ali Baig, and that it vested in the custodian of evacuee properly, because the onus, in view of the evidence adduced by plaintiffs, shifted to them. DW.1, the second defendant, who came into picture in 1968 by virtue of Ex.B.1 sale deed, which is not even duly proved, does not and cannot have knowledge of the properties of Munuruddin or Mirza Dawar Ali Baig. DWs.2 to 4 are the only other witnesses examined by defendants 2 and 3. The evidence of DWs.2 and 3, as stated earlier, supports the case of plaintiffs, but not of defendants 2 and 3. The evidence of DW.4 is of no help either to plaintiffs or defendants 2 and 3. Thus, defendants 2 and 3 failed to discharge the onus that shifted to them.
34. The contention of the learned Counsel for the plaintiffs is that Ex.B.5 corrigendum is not genuine and was not in fact issued by the Office of the Regional Settlement Commissioner. In view of the evidence of PW.6 that the original of Ex.B.5 is not traceable, the said contention appears to have some force. No finding on the question of genuineness of Ex.B.5 need be given in this case, because even if true, Ex.B.5 cannot set at naught Exs.X.2 and X.3, which show that building bearing No. F-6-829 and 830 with adjacent land of about Ac.5.39 gts., vested in the custodian of evacuee property. Property mentioned in Ex.B.5 did not vest in the custodian of evacuee property as per Exs.X.1 and X.2. Custodian of evacuee property can put to auction the property that vested in him only but not the property which did not vest in him. Even if he puts to auction the properties which are not vested in him, the purchaser would not acquire title thereto, because of the maxim Nemo dat quod non habet (nobody can convey a better title than what he has). Since custodian is only an agent of an evacuee, he can act for and on behalf of the evacuee whose property is vested in him. If the custodian brings to auction the property of a person who is not an evacuee, the purchaser in the auction would not acquire title to that property, because custodian is not the agent of the owner of the property sold. Since Exs.X.1 and X.2 do not show that property with No. E-6-829 and 830 vested in the custodian of the evacuee property, Ex.B.5 corrigendum cannot confer title to E-6-829 and 830 on purchaser in the public auction. This apart, under Ex.B.3 property bearing No. F-6-829 and 830 belonging to Mirza Dawar Ali Baig was advertised for public auction. First defendant is said to have participated in the said auction and purchased the said property. So, the consensus ad idem between the parties was only in respect of the property which was advertised for auction, i.e., F-6-829 and 830, but not in respect of the property No. E-6-829 and 830. First defendant, who is said to be the purchaser in open auction, did not even go into the witness box to state for which property he bid at the public auction. So, Ex.B.5 is of no help to defendants 2 and 3.
35. Ground No. 4 in CCCA No. 46 of 1985 relates to the Trial Court not taking into consideration Ex.B.10 letter received from the Office of the Assistant City Planner, Town Planning Section, addressed to the third defendant. Ex.B.10 is but a private correspondence between third defendant and Assistant City Planner. Since the signatory to Ex.B.10 letter addressed to the third defendant was not examined by defendants 2 and 3, Ex.B.10 is not proved. Even if ExB.10 is taken to be true, as per that letter, property bearing No. E-6-830 and E-6-829 correspond to Rev.No. 182/3 and Rev.No. 182/2. Assuming that Rev.No. 182/3 and Rev.No. 182/2 mentioned in Ex.B.10 relate to S.Nos. 182/3 and 182/2 of Gudimalkapur Village, since S.No. 182/3 is not the subject matter of suit, and since the extent of S.No. 182/2 is only Ac.0.02 gts., and since there is nothing in ExB.10 to show to which old number present S.No. 182/1, whose extent is Ac.6.12 gts., corresponds, ExB.10 is not much of help to decide this case, more so because Exs.X.1 and X.2 do not show that properties bearing Nos. E-6-829 and 830 were taken over possession of by the Custodian of Evacuee Property.
36. As per ExB.3 auction notice, auction of properties with Nos. F-6-829 and 830 was to be held on 23.9.1955. But ExB.4 shows that the auction was held on 10.11.1960. There is no evidence on record to show how the auction, as published in Ex.B.3, was postponed for more than five years. As per Ex.B.4, auction seems to have been confirmed on 29.11.1961. As per ExB.6 property bearing No. E-6-829 was delivered on 5.2.1968 by the Revenue Inspector. First defendant is not examined to swear to the fact that he took possession of the property purchased by him in the auction. Even assuming that Ex.B.6 is true, since as per Ex.B.10 E-6-829 corresponds to Rev.No. 182/2, but not S.No. 182/1, it cannot be said that Ac.6.12 gts., in S.No. 182/ 1 was delivered possession of to Ramesh Kumar, to whom Ex.B.10 was addressed. The Revenue Inspector, who allegedly handed over possession, is also not examined to show as to how, and by dispossessing whom, he delivered possession of E-6-829 and where E-6-829 is situate, i.e., whether it is situate to the north or south of Moosi river, which is of great relevance. So, the delivery mentioned in Ex.B.6, even if true, should be taken to be a mere paper delivery, because the panchanama of delivery is not produced and the panchas, if any at the time of delivery, are also not examined.
37. In view of the above, it is easy to see that the suit property purchased under Ex.A.1 is different from the property that was put to public auction under Ex.B.3 notification and Ex.B.4 certificate of sale. The suit property, which is in S.No. 182/1 and 2 of Gudimalkapur, was in occupation of Munuruddin as pattedar and subsequently came into possession of the plaintiffs, and was never taken possession of by the Custodian of Evacuee Property and so first defendant did not acquire title to the suit property for him to convey the same to defendants 2 and 3 under Ex.B.1. The point is answered accordingly.
38. Point No. 2: For the reasons to be mentioned in forthcoming para, for answering the next point, a finding on this point really is not necessary. Since evidence is there on record, this point also is being answered. First plaintiff died a few days after the institution of the petition seeking permission to sue as an indigent person. The evidence of PW.3, one of the attestors to Ex.A.3, proves the due execution of Ex.A.3 will of the first plaintiff, under which second plaintiff became the legatee of the properties belonging to the testator, because during cross-examination PW.3 denied the suggestion that he and Mohanlal were made to attest Ex.A.3 will at the Sub-Registrar's Office. That suggestion and his answer clearly establishes the due attestation by PW.3 and the other witness. In view of the evidence of PW.3, and in view of the fact that Ex.A.3 is a registered will, Ex.A.3 stands proved. So, the second plaintiff, as a legatee under Ex.A.3 will, would be and is the legal representative of Ramdas Maharaj. The point is answered accordingly.
39. Point No. 3: It is no doubt true that in a suit for declaration of title it is for the plaintiff to establish his title and he cannot succeed on the weakness of the case of the defendant. In this case, plaintiffs are seeking a declaration of their title to the land in S.Nos. 182/1 and 2 of Gudimalkapur (suit property) against defendants 2 and 3, who, according to them, are trying to dispossess them by creating a cloud on their title. On point No. 1 it is held that Munuruddin was the pattedar of the suit property and that defendants 2 and 3 do not bave title to the suit property. PW.1, who admittedly is the son of Munuruddin, the pattedar of the suit property, swore to the fact that he executed Ex.A.1 in favour of first plaintiff in pursuance of the agreement entered into by his father with the first plaintiff. Irrespective of the fact whether PW.1 has a power of attorney from other heirs of Munuruddin or not, since he executed Ex.A.1 sale deed in favour of first plaintiff and got it registered under the provisions of the Registration Act, the title, at least in respect of his share in S.Nos. 182/ 1 and 2 did pass on to the first plaintiff. DWs.2 to 4, the sister and brothers of PW.1, admitted that they never were in possession of the suit property and that PW.1 was managing the suit property. If the other heirs of Munuruddin i.e., DWs.2 to 4 and others, on whose behalf also PW.1 had executed Ex.A.1, were to dispute their giving power of attorney to PW.1, it is for them to take steps to recover possession from the plaintiffs who are put in possession thereof by their co-owner, who was managing the suit property. They did not question Ex.A.1 executed by PW.1 in respect of the suit property in favour of first plaintiff. So defendants 2 and 3, who have no title or interest in the suit property, cannot be heard to say that because the other heirs of Munuruddin did not join the execution of Ex.A.1, or did not give power to PW.1 to execute a sale deed in favour of the first plaintiff by PW.1, plaintiffs' title to the suit property cannot be declared.
40. In view of Section 41 of the Evidence Act, judgments of Courts exercising probate, matrimonial, admiralty or insolvency jurisdiction only are judgments in rem. A judgment in a suit of this nature cannot be said to be a judgment in rem, as it binds only the parties to the suit, but not persons who are not parties to the suit. The evidence of PWs.1 and 4 clearly establishes the possession of plaintiffs over the suit property from the date of agreement of sale between Munuruddin and first plaintiff. So, as stated in para-22 above, only a person having a right superior to that of plaintiffs can dispossess them, by taking recourse to due process of law.
41. As held on point No. 1 above, defendants 2, and 3 have no right or interest in the suit property. Second plaintiff, who came into possession of the suit property, consequent on the death of first plaintiff, can protect his possession against forcible dispossession by defendants, who have no right or title over the suit property, even without establishing Ex.A3 will. Therefore, plaintiffs are entitled to the declaration and injunction sought. The point is answered accordingly.
42. In view of the findings on points for consideration, there are no merits in this appeal and so the appeal deserves to be, and therefore, is dismissed with costs.