V.M. Velumani, J.

1. The appellants are the plaintiffs and the respondents are the defendants in O.S. No. 126 of 2003 on the file of the Principal District Munsif, Thoothukudi. The suit filed by the appellants was decreed partly, by the judgment and decree, dated 04.02.2004. The respondents 2 to 4 filed A.S. No. 60 of 2004 and appellants filed Cross-appeal No. 60 of 2004 before the Subordinate Court, Thoothukudi. The lower appellate Court by the judgment and decree, dated 26.07.2005 allowed the A.S. No. 60 of 2004 filed by the respondents 2 to 4 and dismissed the cross-appeal No. 60 of 2004 filed by the appellants. Aggrieved by the said judgment and decree, the appellants have filed the present Second Appeal.

2. The case of the appellants:-

The appellants have filed a suit in O.S. No. 126 of 2003 for partition of 2/3 share in the suit schedule property by metes and bounds and for mesne profits. The suit property originally belonged to one Periya Patchai Perumal, he having purchased the same by the deed of sale, dated 21.10.1923. He had 5 sons viz. Sud-alaimuthu, Chokkan @ Pachaiperumal, Sivananainthan, Oomaiyan and Karuppan. After the death of Periya Patchai Perumal his five sons were jointly in possession and enjoyment of the suit property. Two sons Sivananainthan and Oomaiyan died issue-less. The other three sons were in joint possession and enjoyment of the suit property.

3. The appellants 1 to 5 are legal heirs of Chokkan @ Patchai Perumal. Chokkan @ Patchai Perumal was having one son Chellaiah and one daughter Patchaiammal. Chellaiah, Son of Chokkan @ Patchai Perumal died leaving the appellants 1 to 5 as legal heirs. The 6th appellant is the legal heir of one Karuppan. Therefore, the appellants 1 to 5 have 1/3 share and 6th appellant is having 1/3 share in the suit property. Thus they are entitled to 2/3 share in the suit property.

4. The third son Sudalaimuthu is having two sons viz. Vallikannu and Chellaiah. Chellaiah, Son of Sudalaimuthu is the first respondent herein. The respondents 2 to 4 are the legal heirs of Vallikannu. Therefore, the respondents 1 to 4 are having 1/3 share in the suit schedule property.

5. The suit schedule property is the joint family property. The second respondent is residing very near to the suit property. Therefore, he was cultivating the same and giving shares to the appellants upto 2001. Thereafter, he failed to give their share inspite of repeated demands. He also failed to agree for partition as demanded by them on 10.03.2003. The suit property is joint family property. Hence, they filed a suit for partition.

6. The first respondent did not file any written statement.

7. The case of the respondents 2 to 4:

The second respondent filed written statement and the same was adopted by the respondents 3 and 4. The suit schedule property was purchased by sale deed dated 21.10.1923 by Periya Patchai Perumal. The appellants and respondents were not in joint possession of suit property. After the death of Sivananainthan and Oomaiyan, the two sons of Periya Patchai Perumal, there was a family arrangements, whereby the suit schedule property was allotted to Sudalaimuthu and properties in Solapuram at Ettayapuram Taluk was allotted to Chokkan @ Patchai Perumal and Karuppan. From that date, Sudalaimuthu was in possession and enjoyment of the suit schedule property as owner. After his death, his eldest son Vallikannu was in possession and enjoyment of the suit property. He mortgaged the property with Central Bank of India on 05.11.1971 and 24.08.1973. He developed the property by digging a well.

8. After death of Sudalaimuthu, the second respondent is in possession and enjoyment of the suit property. The respondents 3 and 4 released their share in favour of second respondent. The second respondent was enjoying the property in open exclusively as owner to the knowledge of appellants for more than 12 years. Patta has been transferred in his name and he is paying gist. He discharged the mortgage.

9. The a