1. This Civil Revision Petition has been filed by the petitioner/5th defendant against the judgment and decree dated 12.10.2004 made in C.M.A No. 5 of 2004 on the file of the Subordinate Judge, Kuzhithurai, reversing the Order and decretal order dated 13.1.2004 passed in I.A. No. 759 of 1998 in O.S. No. 37 of 1990 on the file of the Principal District Munsif, Kuzhithurai.

2. The short facts of the case is as follows:

The Suit in O.S. No. 37 of 1990 was filed by the legal representatives of one Nesamani for partition and separate possession against the brother of the deceased Nesamani and Ammalu Nadathi, the mother of the defendants 1 to 5 and the deceased Nesamani. It has been admitted that after preliminary decree for partition was passed, the said Ammalu Nadathi passed away. The 5th defendant one of the sons of the deceased, based on a Will alleged to have been executed by the said Ammalu Nadathi filed a Petition to record that he was the sole legal respective of the deceased, Ammalu Nadathi.

3. The Trial Court allowed the Petition filed by the petitioner, 5th defendant against which the respondents 1 to 3 herein, being the plaintiffs in the Suit preferred an Appeal befo