1. Aggrieved by the decrees and common judgment dated 07.08.1996 passed in Original Suit No.208 of 1992, on the file of the Court of Additional Subordinate Judge, Tirupati, Chittoor district (for short, ‘the trial Court’), 1st defendant therein preferred Appeal Suit Nos.2424 of 1996 and the unsuccessful plaintiff therein preferred Appeal Suit No.238 of 1998 and the 1st defendant in O.S. No.102 of 1985, preferred Appeal Suit No.2476 of 1996.

2. For convenience of reference, the ranks given to the parties before the trial Court will be adopted throughout this common judgment.

3. The appellant in A.S. Nos.238 of 1998 is the plaintiff in O.S. No.208 of 1992 and, the appellant in A.S. No.2424 of 1996, the 1st defendant in O.S. No.208 of 1992 is supporting the plaintiff therein claiming respective share in partition of the schedule property; whereas, the appellant in A.S. No.2476 of 1996, 1st defendant in O.S. No.102 of 1985, was directed to deliver vacant possession of II and III floors of the schedule property within a month from the date of decree to the plaintiffs therein, who are his father and brother respectively. The property in O.S. No.102 of 1985 is one of the items of schedule property shown in O.S. No.208 of 1992. The appellants in A.S. No.238 of 1998 and A.S. No.2476 of 1996 is one and the same. Therefore, the trial Court by common judgment decided both the suits declining to grant a decree in favour of the plaintiff in O.S. No.208 of 1992, while granting a decree for recovery of possession in O.S. No.102 of 1985 in favour of K.V. Jaya Kumar.

4. As the issues between the parties in both the Appeals are common, I find that it is expedient to decide all these Appeals by way of common judgment.

5. The 1st plaintiff, K.C.R. Viswanatham Chetty, filed Original Suit No.102 of 1985 for recovery of possession and damages claiming that K.C.R. Viswanatham Chetty and his four sons constituted as Hindu Joint Family up to 1974. Though Viswanatham Chetty had his own self acquired immovable property, agreed for partitioning the same along with the joint family property and as such executed a registered partition deed dated 30.12.1974; wherein, two buildings at Puttur were allotted to the defendants share and they sold one building to their elder brother. The plaint schedule building was allotted to the 1st plaintiff’s share, who after partition demolished the same and constructed a new building with three flours and one room on the fourth floor. The defendants have no right or interest in the same. The plaintiff had let out a portion on the ground floor to one Shoukath Ali and he is in actual possession of the side lane portion of ground and entire first floor and second floor till 20.11.1977. When the 1st plaintiff was hospitalized in S.V.R.R. Hospital, Tirupati in October, 1977 the 1st defendant and his wife offered to attend on him by staying in the second floor of the plaint schedule property. The 1st plaintiff permitted them to stay in the second floor so also to use the room and terrace on the top floor. It is further stated that after discharge of 1st plaintiff from the hospital, defendants assistance was no more needed, the 1st defendant was asked to quit and deliver possession of the premises occupied by them but they did not vacate the same, the 1st plaintiff got issued a notice but the 1st defendant did not vacate the said premises and, hence, liable to pay damages at the rate of Rs.400/- per month from 01.01.1978 onwards.

6. During pendency of the suit in O.S. No.102 of 1985, K.C.R. Viswanatham Chetty died testate executing the will dated 06.06.1985 bequeathing his property to his son, 2nd plaintiff, as legatee under the will, who claimed exclusive right over the property of his father, 1st plaintiff.

7. The 1st defendant filed his written statement denying the material allegations made in the plaint inter-alia contending that the family owns only ancestral property and no self acquired property of the 1st plaint