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This litigation which has a chequered career to its credit started in the year 1966 though dispute started even much before that. This is the second time this case is coming up before this Court in the Second Appeal though parties had the privilege of coming to this Court on other occasions also challenging or supporting certain interlocutory orders passed by the trial court. The suit was originally filed by plaintiff Nos.1 to 6 with the present plaintiff as defendant No.7 and the contesting defendant as defendant No.8 for partition and separate possession. They claimed that the suit property belonged in jenm to Moorchilot tarwad under which Puthukkudi Bavachi obtained a right of tenancy. He executed Ext.A1, kanom kuzhikanom assignment deed dated 2.9.1899 in favour of his son, Puthukkudi Ammad who had no male issues and died intestate. His tenancy right devolved on his legal heirs - daughter, Mariyam getting 6/9 shares brother, Avulla Haji getting 2/9 shares and the remaining 1/9 share going to his sister, Mariyam. Plaintiff Nos.1 to 6 and defendant Nos.1 to 6 are legal representatives of sister, Mariyam. Thus, 1/9 share belonged to plaintiff Nos.1 to 6 and defendant Nos.1 to 6. It is their further case that daughter, Mariyam and brother, Avulla Haji (of Puthukkudi Ammad) assigned their 8/9 shares to defendant No.7 (plaintiff) as per Ext.B2, assignment deed dated 12.8.1965 while defendant Nos.1 and 2 assigned their fractional interest in the 1/9 share to defendant No.8. Plaintiff Nos.1 to 6 sought partition and separate possession of their fractional interest in the 1/9 share claiming that they along with other co-owners (defendant Nos.1 to 8) are in joint possession and enjoyment of the suit property. Defendant No.8 contended that Puthukkudi Bavachi or his son, Puthukkudi Ammad had no right, title, interest or possession over the suit property and hence legal heirs of Puthukkudi Ammad have not acquired any right by inheritance. He claimed that Mariyam, sister of Puthukkudi Ammad predeceased the latter and hence defendant Nos.11 to 18 (original plaintiff Nos.1 to 6) and defendant Nos.1 to 6 could acquire no right in the suit property. It is also contended that at the time of death of Puthukkudi Ammad his second wife, Combi Mariyam was alive, later she also died and without her legal heirs on the party array the suit is liable to be dismissed for non-joinder of necessary parties. Defendant No.8 claimed that the suit property (which according to him is only about 52 cents) originally belonged to Vadakkedath Ammad as per a registered document dated 11.2.1925. Defendant No.1 and her husband, the late Puthukkudi Anthruman (who is the son of Mariyam, sister of Puthukkudi Ammad) got the property on oral lease from the said Vadakkedath Ammad on Thulam 15, 1118 M.E. for a rent of Rs.2/- per month. Vadakkedath Ammad assigned his right to the said Puthukkudi Anthruman as per a registered document dated 03.03.1952. While defendant No.1 and her husband, Puthukkudi Anthruman were in possession and enjoyment of the property, Puthukkudi Anthruman created lease of the same in favour of defendant No.1 (his wife) and defendant No.2, their son as per a registered lease deed dated 20.4.1965 for a period of 12 years fixing rent of Rs.50/- per year. On the death of Puthukkudi Anthruman his right over the property devolved on defendant Nos.1 and 2. Defendant Nos.1 and 2 assigned their right in the suit property to defendant No.8 as per registered document dated 5.6.1965. Thus the suit properly absolutely belong to and is in the possession of defendant No.8. He purchased jenm right over the property from the Land Tribunal as per purchase certificate dated 1826 of 1978. Defendant No.8 contended that defendant No.7 (plaintiff) had earlier filed O.S. No.660 of 1966 for partition of the very same property with himself and others on the party array and that suit was withdrawn without getting leave of the court to file a fresh suit and hence the present suit is not maintainable in view of Order XXIII Rule 1(4)(b) of the Code of Civil Procedure (for short, "the Code"). He further contended that he had filed O.S. No.392 of 1966 against original plaintiff Nos.1 to 3, 5, defendant Nos.1, 2 and others (defendant No.7, transposed as plaintiff was not a party in that suit) and though the suit was dismissed by the trial court he got a decree for protection of his possession in the appeal and hence the present suit is barred by res judicata. He also contended that right of plaintiffs and defendant Nos.11 to 18 if any in the suit property is lost by adverse possession and limitation.

3. With the above pleadings contesting parties went for evidence. It was revealed from the evidence (Exts.B4 and B5) that Mariyam, sister of Puthukkudi Ammad had predeceased him and hence her legal representatives plaintiff Nos.1 to 6 and defendant Nos.1 to 6) could not inherit any right in the suit property. It also turned out that in that situation if case of defendant Nos.7 and plaintiff Nos.1 to 6 were correct, legal representatives of Puthukkudi Ammad who could inherit the property were his daughter, Mariyam and brother, Avulla Haji whose right defendant No.7 (plaintiff) purchased as per Ext.B2 dated 12.8.1965. In the meantime, plaintiff No.2 died and her legal representatives were impleaded as additional plaintiff Nos.8 to 10. At that stage defendant No.7 applied for and got himself transposed as supplemental plaintiff No.7) and plaintiff Nos.1, 3 to 6 and 8 to 10 were transposed as defendant Nos.11 to 18. In the meantime responding to the contention of defendant No.8 that legal representatives of Combi Mariyam were necessary parties, they were impleaded as supplemental defendant Nos.9 and 10. Learned Munsiff held that going by the evidence (Exts.B4 and B5) Mariyam, sister of Puthukkudi Ammad had predeceased him, defendant Nos.11 to 18 (plaintiff Nos.1, 3 to 6 and 8 to 10) and defendant Nos.1 to 6 who are legal representatives of the said Mariyam could not acquire any right by inheritance and since according to defendant No.7 (plaintiff) Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad assigned their right in favour of defendant No.7 (plaintiff) the latter should be taken as the absolute owner of the suit property in which case a suit for partition would not lie. The suit was dismissed. Defendant No.7 (plaintiff) took up the matter in appeal (A.S.No.117 of 1984). In that appeal he filed an application for amendment of the plaint to incorporate a prayer for recovery of possession of the suit property. First appellate court dismissed the application and later dismissed the appeal as well agreeing with view of the trial court. Defendant No.7 (plaintiff) challenged that judgment and decree in this Court in Second Appeal No.287 of 1990. It was contended that even if it is assumed that a suit for partition as such would not lie, defendant No.7 (plaintiff) having claimed only 8/9 shares in the suit property (even if he may have been entitled to the entire property) he is entitled to get that much share in the suit property. This Court allowed the Second Appeal by way of remand observing that if the contention of defendant No.7 (plaintiff) were to be accepted he is entitled to get 8/9 shares (which alone he claimed in the suit) and it must be taken that he has relinquished his right over the remaining 1/9 share. This Court observed that trial and first appellate courts were not justified in dismissing the suit and instead, should have granted a decree for 8/9 shares if case of defendant No.7(plaintiff) were accepted, by ordering a partition. This Court did not interfere with the dismissal of the application for amendment to incorporate a prayer for recovery of possession. Case went back to the trial court. After remand defendant No.7 (plaintiff) produced certain revenue receipts and receipts for alleged payment of pattom to the jenmi. Trial court came to the conclusion that defendant No.7 (plaintiff) acquired title and possession over the suit property, plea of adverse possession and limitation raised by defendant No.8 is not sustainable and passed a preliminary decree for partition and separate possession of 8/9 shares claimed by defendant No.7 (plaintiff). That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal.

12. Initially it started as a suit for partition with defendant Nos.11 to 18 filing the suit as plaintiff Nos.1 to 6 claiming that they got 1/9 share in the suit property along with defendant Nos.1 to 6 claiming under Mariyam, sister of Puthukkudi Ammad. Exts.B4 and B5 show that the said Mariyam pre-deceased Puthukkudi Ammad. If that be so it is not disputed by defendant Nos.11 to 18 that they or defendant Nos.1 to 6 could not lay hands on the suit property as legal representatives of the said Mariyam. If the case of defendant No.7 (plaintiff) were to be accepted, as per Ext.B2 he got the right of Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad who alone inherited the property on the death of the latter. In Ext.B2 what is stated is that share of the said Mariyam and Avulla Haji in the suit property is assigned to defendant No.7 (plaintiff). If 8/9 shares in the suit property has to go to defendant No.7 (plaintiff), remaining 1/9 share should go, not to defendant Nos.1 to 6 or 11 to 18 whose claim is only under Mariyam, sister of Puthukkudi Ammad or to defendant No.8 who is a stranger but to Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad and if they are not alive to their legal representatives who are not parties to the suit. Understanding this difficulty defendant No.7 (plaintiff) filed I.A. Nos.1096 and 1097 of 1985 while the case was pending in the first appellate court before remand (A.S.No.117 of 1984) for impleadment of legal representatives of daughter Mariyam and brother, Avulla Haji and for consequential amendment of the plaint. First appellate court dismissed those applications observing that heirs sought to be impleaded will not get any right in the property as legal representatives of Mariyam and Avulla Haji since they assigned their (full) right to defendant No.7 (plaintiff) as per Ext.B2. Defendant No.7 (plaintiff) again filed I.A.No.77 of 1990 in A.S. No.117 of 1984 to amend the plaint to incorporate a prayer for recovery of possession. That application was also dismissed by the first appellate court. The appeal also was dismissed. This Court while disposing of S.A. No.287 of 1990 did not interfere with the dismissal of I.A. Nos.1096 and 1097 of 1985 or I.A. No.77 of 1990 and instead directed the trial court that in case title of suit property was found with defendant No.7 (plaintiff) and it is found to be not lost by adverse possession and limitation to grant a decree for partition of the 8/9 shares which alone defendant No.7 (plaintiff) claimed in the suit. Thus in the light of the remand judgment of this Court and the fact that legal representatives of sister Mariyam and Avulla Haji are not on record and relief is now sought against defendant No.8 who is an utter stranger so far as Puthukkudi Ammad and the derivation of title under him are concerned question of treating the suit as one for partition does not arise. This proposition is not disputed by learned Senior Advocates appearing on either side as well. Therefore suit must be treated as one on title. It is for defendant No.7 (plaintiff) to prove title and possession claimed by him.

13. I shall refer to the documents relied on by the contestants. Exhibit A5 is the Adangal register produced by defendant No.7 (plaintiff) in respect of Puthukkudiparambu (referred to in the plaint schedule as comprised in R.S.Nlo.237/1, old survey number 259/1) concerning 86> cents. Pattadar is Moorchilot Mooppasthani Kunhappa @ Kunhikananaran. Exhibit A4 is the certified copy of document No.422 of 1870 executed by Othenan Kurukkal (who claimed to have tenancy and possessory right under Moorchilot tarwad) in favour of Beeyathumma. Under Ext.A14, the said Beeyathumma obtained tenancy right in respect of the suit property under Moorchilot tarwad. Next document is Ext.A13, dated 25.10.1872 executed by Beeyathumma transferring her possession and tenancy right in favour of Puthukkudi Bavachi. In Ext.A13 property is described as Puthukkudiparambu measuring 68x94 for carpenter koles (around 86 and odd cents). Then comes Ext.B1, dated 23.4.1897 executed by Puthukkudi Bavachi in favour of Kolankandy Avulla. Exhibit B1 states that Puthukkudi Bavachi had taken a loan from the said Kolankandy Avulla and that the latter will have right to take usufructs from the suit property measuring 26x40 for six feet koles (which is 86.80 cents). Exhibit A1 is an assignment deed dated 21.9.1899 in respect of Puthukkudiparambu measuring 26x40 for six feet koles executed by Puthukkudi Bavachi in favour of Puthukkudi Ammad as per which Puthukkudi Ammad got possession and tenancy right from Puthukkudi Bavachi. Exhibits A32 and 33 are printed receipts produced by defendant No.7 (plaintiff) to show that Puthukkudi Ammad had paid rent to the Moorchilot tarwad (Exhibits A32 and A33 are produced after remand). After death of Puthukkudi Ammad his daughter Mariyam and brother Avulla Haji executed Ext.B2, assignment deed dated 12.8.1965 in favour of defendant No.7 (plaintiff) in respect of 86> cents. Thus defendant No.7 (plaintiff) claimed to be the tenant in possession of the suit property which according to him is 86> cents. Later he obtained Ext.B3, purchase certificate in the year 1979 as per Ext.A45, order of the Land Tribunal. He has also produced Exts.A10 to 12 to show payment of revenue in respect of the said property. Defendant No.7 (plaintiff) as D.W1 spoke to his title and possession of the suit property. He examined P.Ws.2 and 3 to support his case.