The appellant is the plaintiff in O.S.No.76 of 2007 on the file of the Court of District Munsif-cum-Judicial Magistrate, Kodumudi, Erode District and aggrieved by the dismissal of the suit filed for partition and separate possession, vide judgment and decree dated 30.07.2009, filed an appeal in A.S.No.55 of 2009 on the file of the Principal Sub Court, Erode, Erode District and lost it and challenging the legality of the same, has filed this second appeal.

2. The facts, leading to the filing of this second appeal, briefly narrated as follows. For the sake of convenience the array/nomenclature of parties adopted by the trial Court is adopted in this second appeal also.

3. The first defendant is the father of the appellant/plaintiff and her sister was arrayed as the second defendant and pendency of the suit, she died on 12.11.2007 and her legal representatives were added as defendants 3 to 5. It is the case of the appellant/plaintiff that the suit property, measuring to an extent of 12 cents and the thatched shed put up thereon along with pathway in New S.No.318/15, Old S.No.275, Chennasamuthiram Village, Erode District, is a joint family property and the plaintiff and the defendants are in joint possession and as such, the appellant/plaintiff is entitled to 1/3rd share, the first defendant is entitled to 1/3rd share and the legal representatives of the deceased second defendant are entitled to 1/3rd share each. The appellant/plaintiff would further aver that since all of them are in joint possession, some difference of opinion arose between them and therefore, the appellant/plaintiff prayed for partition and separate possession and despite requests made, the first defendant did not come forward to partition and give separate possession of the property. Therefore, came forward to file the said suit.

4. The first defendant-father of the appellant/plaintiff filed a written statement refuting the averments made in the plaint and would contend that the plaintiff got married about 35 years back and the second defendant got married about 25 years back and both of them are living separately and the suit property stands in his name and the revenue documents pertains to superstructure also stands in his name and he is in possession and enjoyment of the same. The first defendant would further aver that the plaintiff and the second defendant were born through his first wife viz., Chellammal and after her demise in the year 1986, he married one Lakshmi in the year 1990 and she is living with her and since the plaintiff as well as the second defendant attempted to interfere with his peaceful possession and enjoyment of the same, he filed a suit in O.S.No.20 of 1998 before the same Court for permanent injunction and it was decreed on 21.04.1999 and no further challenge has been made to the said judgment and therefore, the findings rendered in the said judgment would operate as res judicata in respect of the claim made by the plaintiff. The first defendant would further state that in respect of the suit property, he executed a registered Will dated 11.11.2005 in favour of his second wife and after his life time, she will succeed to her estate and therefore, prayed for dismissal of the suit. The third defendant had filed the written statement, which was adopted by defendants 4 and 5, wherein they supported the case of the plaintiff.

5. The trial Court, on consideration of pleadings, has framed the following issues:

(i) whether the suit property is the ancestral property of the plaintiff and defendants?

(ii) whether the plaintiff is entitled to 1/3rd share in the suit property?

(iii) to what other relief the plaintiff is entitled?

6. The trial Court on 30.07.2009 has framed the additional issue i.e., whether the present suit is barred by res judicata?

7. During the course of trial, the plaintiff examined herself as P.W.1 and also examined one Subramani as P.W.2 and Jeganathan as P.W.3 and marked Exs.A1 and A2. The first defendant examined himsel