1. The above second appeal arises against the judgment and decree in A.S.No.5 of 20024 on the file of District Court, Salem confirming the Judgment and Decree in O.S.No.719 of 1989 on the file of Principal District Munsif Court, Salem.

2. The 4th defendant is the appellant, respondents 1 to 8 were the plaintiffs, 9th respondent was the 5th defendant and the respondents 10 to 12 are the legal representatives of the deceased first respondent. Defendants 1 to 3 died pending suit.

3. The plaintiff filed the suit in O.S.No.719 of 1989 for to declare that

(i) they are the absolute owners of the suit properties in item Nos. 1 and 2 as per settlement deed dated 22.4.1959 and the defendants 1 and 2 are not entitled to any right in them;

(ii) to restrain the defendant's 1 and 2 from claiming any right in the suit properties item Nos. 1 and 2 as per decree in O.S.No.476 of 1984 on the file of District Munsif Court, Salem;

or otherwise, to order delivery of possession of the suit properties against the defendants 1 to 5 and put the plaintiffs in possession of the suit properties obtained by the 4th defendants in R.E.P.No.75 of 1995 in O.S.No.476 of 1984 on the file of Principle District Munsif Court, Salem.

4. The brief case of the plaintiffs are as follows:-

(i) According to the plaintiffs, one Ramasamy Chettiar and Mariappa Chettiar are brothers. They were members of a Hindu joint family and possessed of the suit properties. The said Ramasamy Chettiar died in the year 1936 leaving behind his wife, Sidhayammal, first defendant as his sole heir. Mariappa Chettiar became the absolute owner of the suit property by survivorship. The first defendant had the right of maintenance only as against the joint family properties. On 22.4.1959, Mariappa Chettiar executed a settlement deed in favour of his daughter-in-law, the third defendant and her children, the plaintiffs. The plaintiffs were given vested rights in all the three items of the properties. The first defendant was given right of enjoyment of items 1 and

2. The third defendant let out a portion of item Nos. 1 and 2 to one Lakshmi Ammal and her husband Palanivel.

(ii) The third defendant and the plaintiffs filed a suit in O.S.No.494 of 1971 for delivery of possession against Lakshmi Ammal and Palanivel. On 26.6.1972, the first defendant executed a settlement deed in favour of one S.P.Madheswaran, S/o.Palanivel, through his first wife in respect of item No.3 of the suit properties in which she was given the right of residence.

(iii) The second defendant filed a suit in O.S.No.251 f 1975 against the first defendant, Madheswaran and others to declare that the settlement deed dated 26.6.1972 as null and void and not binding on him after the death of Sidhayammal. The said suit was decreed on 29.1.1976. On appeal in A.S.No.222 of 1976, filed against the said judgment and decree, the same was allowed and against which, the second defendant preferred a Second Appeal and the same ended in dismissal on 2.7.1981. In the second appeal, the properties were held to be joint family properties and limited interest given to the first defendant under the settlement deed dated 22.4.1959 has enlarged into absolute estate and therefore, the settlement deed dated 26.6.1972 is held to be valid. As per the said judgment, the plaintiffs have no right in respect of item No.3 of the suit properties.

(iv) According to the plaintiffs, they are the absolute owners of the item Nos. 1 and 2. The third defendant does not have any right of ownership but only a right of enjoyment. The suit in O.S.No.494 of 1971 was decreed and the same was executed by filing an execution petition. The first defendant filed the suit in O.S.No.476 of 1984 for partition and separate possession of half share in the properties on the ground that the properties are joint family properties. The said suit was decreed and on appeal, the judgment and decree was confirmed and the second appeal filed as against the said judgment and de