JUDGMENT :

T. MALLIKARJUNA RAO, J.

1. As both the Appeals arise out of the Judgment and decree dated 06.08.2009 in O.S. No. 446 of 2006 on the file of II Additional Senior Civil Judge, Vijayawada, the same are disposed of by this following common Judgment.

2. The parties will be referred to as plaintiffs and defendants per their respective ranks before the Trial Court for convenience.

3. The plaintiff laid the suit for partition to divide the plaint schedule property consisting of two items into five equal shares and to allot one such share to her and also to direct the defendants No. 3 to 5 to pay 1/5th share of the rents till the delivery of 1/5th share of the schedule property.

4. Item No. 1 of the plaint schedule property is a single-storied building bearing D. No. 28-10-10/11 at Arundalpet, Vijayawada. Item No. 2 of the plaint schedule property is an extent of 374 sq. yards of the tiled house bearing D. No. 32-37-6, situated at Maruthi Nagar, Vijayawada.

5. After completing the trial and hearing the arguments of both sides, the Trial Court passed a preliminary decree partly for partitioning Item No. 1 of the plaint schedule property into five equal shares. It allotted one such share, i.e. 1/5th share to the plaintiff. Further, defendants No. 3 to 5 are directed to pay 1/5th share of rent to the plaintiff from the date of filing suit till delivery of the property as prayed for. However, the suit claim regarding Item No. 2 of the plaint schedule property is dismissed.

6. The plaintiff filed the appeal in A.S. No. 913 of 2010, under Section 96 of the Code of the Civil Procedure, 1908, questioning the dismissal of the suit regarding Item No. 2 of the plaint schedule property. Whereas the unsuccessful defendants No. 1 and 2 filed the appeal in A.S. No. 989 of 2010, questioning the granting of the preliminary decree in respect of Item No. 1 of the schedule property.

7. In a nutshell, the averments in the plaint are to the effect that the plaintiff is the natural sister of defendants No. 1 and 2; they are the children of Abdul Wahid and Jaibunnisa. Their father and mother died in the year 1990 and 1998, respectively. The schedule properties have to be divided into five shares, of which the plaintiff is entitled to 1/5th share as per Muslim Law. After her parents’ death, the plaintiff insisted on the division of plaint schedule properties and for separate possession. Defendants No. 1 and 2 also manage the schedule property on her behalf. On being found they were trying to avoid the division of the plaint schedule properties, she gave them a legal notice:

(a) Defendants No. 3 to 5 are the tenants in Item No. 1 of the schedule property. They are paying rent to defendant No. 1, as he is the eldest member. Defendant No. 1 paid the plaintiff's share of the rent till 2004, and he stopped paying it to the plaintiff.

(b) While the matter stood thus, Defendants No. 3 to 5, the tenants were demanded to pay the 4/5th share of the rent to the plaintiff from 2006, May onwards and obtain a valid receipt against the payments. Defendant No. 1 was also requested to pay the plaintiff's share from January 2004 onwards and settle the accounts.

8. Defendants No. 1 and 2 filed their written statement contending that the plaintiff was never in possession of the schedule property jointly with them. She was never paid any amount towards her alleged share in the rents. Their father was not in possession and enjoyment of the plaint schedule property (i.e. Item No. 1) on the date of his death. The parents used to live in the house of Defendants No. 1 and 2. One month before his d