The presumption of legitimacy arises when a man and woman cohabit continuously for a number of years, and the burden is on the party challenging the legitimacy to prove otherwise.

The unsuccessful plaintiff is the appellant.

2. The case in brief is as follows :-

The plaintiff filed a suit for declaration and for permanent injunction. The suit properties were purchased by the plaintiff's father under a registered document dated 20-10-1948 and in oral partition between his father and his brother, the suit properties fell to the share of his father. The plaintiff's father was in possession and enjoyment of the same and on his demise, the plaintiff is in possession and enjoyment of the same without any paying (sic) the kist regularly. The 1st dependent was the kept mistress of the plaintiff's father and the 2nd defendant is the daughter of the 1st defendant. The 2nd defendant was living away with her husband and her marriage was also celebrated by giving appropriate jewels and dowry. She has no right in the property. At the instigation of the father of the 1st defendant, they attempted to disturb the possession of the plaintiff. Hence, the suit.

3. The 1st defendant filed a written statement, denying the averments in the plaint. The plaintiff's father along with his brother purchased the property under registered sale deed 20-10-1948. The allegation that she is the kept concubine of the father of the plaintiff is highly mischievous and defamatory. She is the legally wedded second wife of late Samiyappa Gounder. The plaintiff is the son of the first wife of late Samiyappa Gounder, She is entitled to half right in the property. The first wife of Samiyappa Gounder died about 30 years age and Samiyappa Gounder also died 25 years back. After the death of Samiyappa Gounder the 1st defendant and the plaintiff divided the property into two equal shares and she was allotted to northern area measuring about 2.79 acres and the plaintiff was allotted to southern side. Ever since the date, they are enjoying the properties separately and kist was also paid separately. The plaintiff insisted her to settle her share in his favour after the lifetime and as she refused, the suit has been filed. She has already filed a suit for permanent injunction, restraining the defendant in O.S. No. 218/82 and it has been suppressed.

4. The trial Court framed 2 issues and on behalf of the plaintiff, Exs. A 1 to A6 were marked and PWs 1 and 2 were examined. On the side of the defendant, Exs. 81 was marked and D.Ws. 1 to 3 were examined. One document was marked through witness. The trial Court decreed the suit and aggrieved against this, the 2nd defendant preferred A.S. No. 102/85 on the file of sub Court, Udumalpet and the appeal was allowed and the judgment and decree of the trial Court were modified and the plaintiff was granted declaration and permanent injunction to half share in the property and in respect of the other half share, the suit was dismissed. Exs. B2 to B13 were marked in the lower appellate Court. Aggrieved against this , the plaintiff has come forward with the second appeal.

5. The appellant/plaintiff raised the following substantial questions of law :

(1) Whether the lower appellate Court erred in holding that the 1st defendant is entitled to half share in the property?

(2) Whether the lower appellate Court is right in placing the burden on the plaintiff to prove that the 1st defendant is not the legally wedded wife of Swamiappa Gounder ?

(3) Whether the lower appellate Court is correct in restraining the decree with respect to the prayer for injunction only for half share ?

6. The points that arise for consideration are (1) whether the plaintiff is entitled to the relief of declaration and permanent injunction and (2) To what relief ?

7. Points : There is no dispute that the suit property belonged to Samiyappa Gounder father of the plaintiff. The said Samiyappa Gounder died on 9-3-1981 as seen from Ex. A2. Patta for the property also stood in his name as per Ex. A3.

The plaintiff has come forward with a specific case that the suit property exclusively belongs to him and is in possession and enjoyment of the same. The