JUDGMENT :

[Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 26.07.2000 made in Appeal and Cross Appeal No.199 of 1998 on the file of the Sub Court, Kovilpatti and the judgment and decree dated 09.07.1998 made in O.S.No.4 of 1996 on the file of the District Munsif's Court, Kovilpatti by allowing this appeal.]

1. The plaintiff in the suit is the 1st appellant. The suit was filed seeking declaration of title and injunction. The suit was decreed by the trial Court to the extent of half of the suit property. Aggrieved by the same, the 1st appellant had filed an appeal in A.S.No.199 of 1998 insofar as the portion of the decree dismissing the suit is concerned, and respondents 1 and 3 herein also preferred a cross objection in respect of the decreed portion. The first appellate Court reversed the findings of the trial Court insofar as the relief of permanent injunction is concerned and allowed the cross objection filed by respondents 1 and 3 to that extent. The appeal filed by the 1st appellant was dismissed by confirming the other findings of the trial Court. Insofar as the relief of declaration is concerned, the finding of the trial Court that the 1st appellant was entitled to declaration in respect of half of the suit property was confirmed by the appellate Court. Aggrieved by the same, the 1st appellant is before this Court. Pending second appeal, the 1st appellant died and his legal representatives were brought on record as appellants 2 to 5. Likewise, the legal representatives of the deceased 1st respondent were brought on record as respondents 6 to 8 and the legal representatives of the deceased 2nd respondent were brought on record as respondents 4 and 5.

Plaint Averments:

2.1. According to the 1st appellant/plaintiff, the suit properties were joint family properties of the 1st appellant and his father late Mariappan. The mother of the 1st appellant viz., Deivanai died in the year 1973 and thereafter, a misunderstanding arose between the 1st appellant and his father Mariappan in the year 1984 regarding the common enjoyment of the suit schedule properties. Therefore, the 1st appellant filed a suit against his father for partition in O.S.No.209 of 1984 on the file of the Sub Court, Tuticorin.

2.2. The said suit was contested by the father of the 1st appellant mainly on two grounds viz., (a) some of the suit properties were his self earned properties; and (b) the 1st appellant's father married the 1st respondent herein, who was the widow of his younger brother Kutralam. The trial Court found that all the suit properties were joint family properties and hence, liable for partition. It also found that the 1st respondent herein was not the legally wedded wife of the 1st appellant's father Mariappan. Hence, the suit for partition filed by the 1st appellant was decreed granting half share in the suit properties. The 1st appellant's father Mariappan filed an appeal before the District Court, Tirunelveli and the same was dismissed.

2.3. It was further averred by the 1st appellant that when he was taking steps to get his half share in the suit schedule property as per the preliminary decree for partition in his favour, his father Mariappan died intestate on 19.02.1995 leaving the 1st appellant as his sole heir to succeed to his estate and hence, the remaining half share also devolved upon him. Thus, he claimed absolute right over the entire suit schedule properties. The 1st appellant further averred that the defendants/respondents 1 to 3 herein without having any manner of right, tried to commit trespass into the suit property by force and the said action of respondents 1 to 3 constrained him to file a suit for declaration of his title and for consequential injunction.

Averments contained in the written statement:

3.1. Respondents 1 to 3 herein filed a written statement and claimed that the 1st respondent was the legally wedded second wife of the 1st appellant's father Mariappan and the