Judgment : Defendants 1 and 2 in O.S.No.12 of 1983 are the appellants in A.S.No.347 of 1986. 2. The case of the plaintiffs is as follows: The first plaintiffs great great grand father Kandasami Aiyya belonged to Kandanpalayam. He came to Chidambaram more than two hundred years back and occupied a portion of A schedule item No.1 of the suit property. The suit property was originally a waste land. Be built cottage and cultivated dry crops therein. Kandasami Aiyya was a pious and religious man. He belonged to Veerasaivam (lingayath). He was preaching Lingayath and he was residing therein. He had only son by name Vaithilinga Aiyya. After the death of Kandasami Aiyya, his son Vaithilinga Aiyya improved the place. He buried his father in the said place, built a samadhi, put up a lingam in the said place for his worship and called it as Adhilingam. He also built a well to supply water for irrigation purposes to the garden. He planted trees and formed flower garden and vegetable garden. He also served as poojari and had additional earnings. He got assignment of the lands in his favour and Vaithilinga Aiyya helps for his family. His only son was Apparswami Aiyya. He succeeded to item No.1 of the A schedule property. He was well versed in Tamil and Sanskrit and he had many devotees and disciples. He served as Gurukkal in many temples. He was also a mandhirik. He taught mandhirik to his disciples. He had clients all over India and he had large earnings out of the same. He built many of the buildings in item 1 of A schedule property. Patta was also transferred for item 1 of the property in his favour. He also acquired item No.2 of the A schedule property and got assignment in his favour. The said place is now being used to bury the family members. A portion of item No.2 of the A schedule property was converted as nanja land. Since he was a mandhirik, he built four buildings in the suit place for his residence and to accommodate his visitors. He installed deities and put up a Sabha Mandapam in the suit place. He also installed idols referred to in the B schedule in the Sabha Mandapam. Since he was a mandhirik, he built four buildings in the suit place for his residence and to accommodate his visitors. He installed deities and put up a Sabha Mandapam in the suit place. He also installed idols referred to in the B schedule in the Sabha Mandapam. He also purchased 2 ¼ kani of nanja lands at Thillainayagapuram later on sold by the plaintiffs and defendants 1 and 2 on 17. 1981. Apparswami Iyer died in the year 1950. After his death his two sons Devasenathipathi Aiyar and Somasundaram Aiyya succeeded to the suit properties and were residing in item No.1 of A schedule property. They also enjoyed the suit properties jointly. Devasenathipathi Aiyyar died in the year 1956 leaving his two sons by name Vaithinatha Iyer and Panchanatha Iyer the first plaintiff. Vaithinatha Iyer died in the year 1952 without any issues. Somasundaram Aiyar also died in the year 1966 leaving his son Ganapathi Aiyar the first defendant. The second defendant is the son of the first defendant. The first plaintiff died. Plaintiffs 2 to 5 sons of the first plaintiff and brought as his legal representatives. The plaintiffs family and defendants 1 and 2 are residing in the suit item No.1 of A schedule property and they are in enjoyment of the suit properties jointly. They are performing poojas for the deities and samadhi jointly. The suit properties are now in joint possession and enjoyment of the plaintiffs and defendants 1 and 2. The first plaintiff and the first defendant jointly built up the brick built compound wall all round the suit property in item 1 of A schedule. The building bearing door No.11-A, 12, 12-A are put up by the tenants on a contract basis and as per the agreement after the stipulated contract period the same vest with the plaintiffs and defendants 1 and 2 for they had enjoyed the suit property as per the contract. Defendants 3 to 13 are the tenants and they are in occupation of the building on contractual basis. The ownership vests with the plaintiffs and defendants 1 and 2 after the contract period. Defendants 14 and 15 are cultivating dry crops and nanja lands respectively. The plaintiffs, legal heirs of one group are entitled to half share and defendants 1 and 2, legal heirs of other group are entitled of half share. The ownership vests with the plaintiffs and defendants 1 and 2 after the contract period. Defendants 14 and 15 are cultivating dry crops and nanja lands respectively. The plaintiffs, legal heirs of one group are entitled to half share and defendants 1 and 2, legal heirs of other group are entitled of half share. B schedule properties are ancestral properties exclusively belonging to the plaintiffs and defendants 1 and 2 and their family members. They are movables stored in the Arthamandapam. Disputes arose between the plaintiff and defendants 1 and 2 in performing Annabishekam pooja in the Sabha Mandapam. So, it is impossible for the plaintiffs to enjoy the suit property jointly. Hence, the plaintiffs are constrained to file the suit for partition and separate possession of their half share in the suit properties. 3. Thedefendants filed written statement contending as follows: Vaithilinga Iyer had two wives. His first wife had a son and a daughter. They are Apparswami and Thillaimmal respectively. His second wife had four sons and a daughter. The sons are Muthuswami, Natesa Iyer, Ambalavana Iyer and Sivagurunatha Iyer. The daughter is Thaiyalnayaki. Natesa Iyer has got a son by name Subramanian. Ambalavana Iyer has got a son who is Thirunavukkarasu. This Thirunavukkarasu is the present Madathipathi. He is 32nd Madathipathi in the line of succession. Sivagurunatha Iyer had three sons viz., Ramalingam, Sambandam and Thandapani. Thandapani is looking after the Chidambaram Ambalathadi Mutt and Sambandam Pondicherry Mutt. Aathi Ambalathadi Swamigal mutt is an entity which is in existence since very long past. About 15 Madathipathis were buried in item one. Apparswami did not construct Sabamandapam and four buildings. The plaintiff is not jointly doing any pooja with the first defendant. Apparswami purchased some lands and his grandsons sold those lands and it has nothing to do with the affairs of the mutt. There are some bronze idols in the mutt. They are shown in the accounts submitted to the H.R. & C.E. Department. Several things of the mutt are with the plaintiffs. The mutt vessels are with the plaintiffs. The plaintiffs were never doing any pooja and the pooja is being done once in a day. During some important days, pooja will be done twice. House No.12 was built by Vaithilinga Iyer. House No.11-A was built by Apparswami. House No.11 was built by Somasundaram Iyer. The mutt vessels are with the plaintiffs. The plaintiffs were never doing any pooja and the pooja is being done once in a day. During some important days, pooja will be done twice. House No.12 was built by Vaithilinga Iyer. House No.11-A was built by Apparswami. House No.11 was built by Somasundaram Iyer. House Nos.11-A and 12-A are possessed by Dhandapani son of Sivagurunatha Iyer. It is in their possession for more than 45 years. It is their property. House No.12 is occupied by one Duraiswami. This house fell down. Ganapathi Iyer requested Duraiswami to reconstruct door No.12 under an agreement for 21 years. Door No.11 is occupied by Ganapathi Iyer. Door No.10 is possessed by the plaintiff. He has put two tenants and he is collecting the rents. The plaintiff have no right to ask for partition and the plaintiffs are not entitled to partition. 4. 16th defendant filed written statement contending as follows: The Deputy Commissioner, H.R. & C.E. Department passed order holding that there are separate temples for Sri Vinayagar, Sri Subramaniar, Sri Natarajar, Sri Manickavasagar, Sri Perumal, Sri Dakshinamoorthy, etc. in existence along with Sannathi that it has been so developed as a regular temple with all the deities. The first respondent preferred appeal and the order of the Deputy Commissioner was set aside and the matter was remanded to the file of the Deputy Commissioner and finally the Deputy Commissioner passed orders on merits and the petition was dismissed. The order of the Deputy Commissioner is final and binding on the defendants. The suit filed by the plaintiffs is not maintainable. 5. Defendants 1 to 4 in O.S.No.3 of 1987 are the appellants in A.S.No.213 of 1990. That suit was filed by Sambandam and Dhandapani who are the sons of Sivagurunatha son of Vaithilinga through his second wife Sivakami Ammal for partition and separate possession of their share. 6. The case of the plaintiffs in that suit is as follows: The plaintiffs are brothers and they are sons of Sivagurunathan. Sivagurunathan is one of the four sons of one Vaithilinga Ayyar, through his second wife Sivakami Ammal. The other three sons of Vaithilinga Ayyar are Muthusamy Swamigal, Natesa Ayyar and Ambalavanan and they are dead. Muthusamy Swamigal became an ascetic and he left the family. Nates Iyer had only one son by name Subramamam and he is seventh defendant herein. Sivagurunathan is one of the four sons of one Vaithilinga Ayyar, through his second wife Sivakami Ammal. The other three sons of Vaithilinga Ayyar are Muthusamy Swamigal, Natesa Ayyar and Ambalavanan and they are dead. Muthusamy Swamigal became an ascetic and he left the family. Nates Iyer had only one son by name Subramamam and he is seventh defendant herein. Ambalavana had only son by name Thirunavukkarasu Swamigal and he is also an ascetic and he is the present Madathipathi of Ambalathadi Madam at Pondicherry. He is the eighth defendant herein. By his first wife Vaithilinga Iyer had only one son by name Apparsamy Ayyar who is now no more. Apparsamy Ayyar was survived by his two sons Devasenapathy Ayyar and Somasundara Ayyar and they are also dead. Devasenathipathi was survived by his only son Panchanatha Ayyar who died in 1984. Defendants 1 to 4 herein are the sons of the said Panchanatha Ayyar who died in 1984. Defendants 1 to 4 herein are the sons of the said Panchanatha Ayyar. Somasundara the younger son of Apparsamy Iyer died in 1966 and he was survived by his only son Ganapathy Ayyar and he is the fifth defendant herein. His undivided son Adiyapatham is the sixth defendant in this suit. Item 1 of plaint A schedule properties consists of a site with buildings thereon. Item 2 of the plaint A schedule consists of two items of lands situate in Pallipadai village, Chidambaram taluk. Kanagasabai, a resident of Kandapalayam, was a religious mined person. He belonged to Veerasaivam (Lingayat). He came to Chidambaram and took up his residence in item 1 of the plaint A schedule. After his death, his only son Vaithilinga Ayyar inherited the said item. Item 2 was acquired by Vaithilinga and both items in A schedule were owned and enjoyed during his life time. Vaithilinga died in or about 1935 and he was survived by his second wife Sivakami and his five sons by name Apparsamy and Muthsamy Natesa, Ambalavana and Sivagurunatha through his second wife. B schedule properties are mostly idols acquired and worshipped by Vaithilinga and those idols along with various other items of property comprised in B schedule were also owned, possessed and enjoyed by Vaithilinga. There is a samadhi and a Sabha Mandapam in item 1 of A schedule and the same had been in existence even during the life time of Vaithilinga. There is a samadhi and a Sabha Mandapam in item 1 of A schedule and the same had been in existence even during the life time of Vaithilinga. Guru pooja were being done by the family members. On the death of Vaithilinga, all his five sons became entitled to 1/5 share each in the plaint A and B schedule properties since the properties were the separate and exclusive properties of Vaithilingam. Sivakami was being maintained by the members of the family as she was only entitled to maintenance from out of the family assets. The fifth defendant is in actual possession of the most of the suit properties and the plaintiffs were also managing the suit properties along with the fifth defendant and had been in receipt of their share of income. The properties remain in joint possession of the members of the first wifes sons and the second wifes sons. After the death of Vaithilinga, his sons were managing the affairs of the family with the assistance of younger members. In view of the fact that Muthusamy, one of the sons of Vaithilinga died as a Brahmachari, the other three brothers became entitled to his share, and after the death of Natesa, his only son Subramaniam the 7th defendant became entitled to the share of Natesa Ayyar. After Ambalavanas death, his son Thirunavukkarasu Swamigal the 8th defendant became entitled to his fathers share. Plaintiffs had another brother by name Ramalingam and he is not heard of for the past 15 years and he must be deemed to be dead. According to the law governing the parties, defendants 1 to 6 together will be entitled to 1/5 share, and out of his 1/5 share defendants 1 to 4 will be entitled to 1/10 share, and defendants 5 and 6 to 1/10 share. The seventh defendant is entitled to 4/15 share, the eighth defendant to 4/15 share and the plaintiffs are entitled to 4/15 share Suppressing the fact that the plaintiffs are entitled to a share in the suit properties, defendants 1 to 4 herein instituted a suit in O.S.No.12 of 1983 on the file of this Court and obtained a decree for half share in the suit properties. In that suit, the 5th defendant herein had stated that the plaintiffs are entitled to a share in the suit properties and that the suit was bad for non joinder of necessary parties they were not added as parties and the suit was decreed for partition and separate possession. The plaintiffs are entitled to their share in the suit properties. Hence, the suit is filed for partition and separate possession of their share in the suit properties. 7. Thefirst defendant filed written statement contending as follows: Suit item 1 did not belong to Kanagasabai nor it was inherited by Vaithilinga Ayyar. Vaithilinga Ayyar never made improvements in the property. Vaithilinga Ayyar never married Sivakami as his second wife. The children alleged to have born to them are not the sons of Vaithilinga Ayyar. Vaithilinga Ayyar did not own and possess B schedule properties. He never performed any guru pooja. It is not true that on the death of Vaithilinga all his five sons became entitled to 1/5 share each in plaint A and B schedule properties. The suit properties belonged to Apparsamy Ayyar and on his death, the properties devolved upon his son Devasenathipathi who was performing the poojas and after the death of Devasenathipathi his son Panchanatha Ayyar and on his death, defendants 1 to 4 are entitled to the properties and were performing poojas and other religious functions. The plaintiffs and defendants 7 and 8 are not the second wifes sons of Vaithilinga Ayyar. They never lived with the family of defendants 1 to 4 or defendants 5 to 6. They never exercised, claimed or asserted any right or title to the suit property. This defendant filed O.S.No.12 of 1983 on the file of this Court and obtained a decree for half share in the suit property against defendants 5 and 6 and the appeal preferred by defendants 5 and 6 A.S.No.347 of 1986 is pending. Defendants 5 and 6 are estopped and barred from attacking the decree in O.S.No.12 of 1983. .8. 11th defendant filed written statement contending as follows: .Ganapathy Iyer son of Somasundara Iyer entered into an agreement of lease in respect of the property on monthly rent basis. He used to collect rent in advance. This defendant being a tenant is entitled to protection under the City Tenants Protection Act. .8. 11th defendant filed written statement contending as follows: .Ganapathy Iyer son of Somasundara Iyer entered into an agreement of lease in respect of the property on monthly rent basis. He used to collect rent in advance. This defendant being a tenant is entitled to protection under the City Tenants Protection Act. This defendant is a tenant under Ganapathy Iyer and the tenancy is binding on the parties and the defendant need not surrender possession and his possession could be protected. 9. On the above pleadings, the trial court framed issues, tried the suits and decreed both the suits for partition and separate possession. 10. Aggrieved against that judgment and decree, defendants 1 and 2 in O.S.No.12 of 1983 preferred A.S.No.347 of 1986 and defendants 1 to 4 in O.S.No.3 of 1987 preferred A.S.No.213 of 1990. .11. Admittedly the suit properties are the ancestral properties. The genealogy tree is set out hereunder to show the relationship between the parties: .Panchanatha Iyer son of Devasenathipathi and grand son of Apparsamy Iyya filed suit O.S.No.12 of 1983 for partition and separate possession of his half share in the suit property against the defendants Ganapathy Iyer and Aadiapatham who are the sons of Somasundaram and grand sons of Apparsamy Iyya and also against others for partition and separate possession of his half share in the suit property and that suit was decreed. In that suit defendants 1 and 2 raised their contention that the ancestors Vaithilinga Iyya father of Apparsamy Iyya had second wife Sivakami Ammal through whom he had four sons Sivagurunathan, Muthsamy, Natesan and Ambalavanan and the said, Sivagurunathan has got three sons Sambandam, Dhandapani and Ramalingam and they are also legal heirs and they also should be added as parties to the partition suit O.S.No.12 of 1983. .12. From the written statement filed by defendants 1 and 2 in O.S.No.12 of 1983, it is evident that Vaithilinga Iyer had two wives and through his first wife, he had one son by name Apparsamy and one daughter by name Thillai Ammal. Apparsamy had two sons, viz., Devasenathipathi and Somasundaram. Devasenathipathi had two sons, Vaithilinga (died) and Panchanatha. He also died, Plaintiffs 2 to 5 are his legal heirs. Vaithilingas second wife is Sivakami Ammal through whom he had four sons by name Sivagurunathan, Muthusamy, Natesan and Ambalavanan. Apparsamy had two sons, viz., Devasenathipathi and Somasundaram. Devasenathipathi had two sons, Vaithilinga (died) and Panchanatha. He also died, Plaintiffs 2 to 5 are his legal heirs. Vaithilingas second wife is Sivakami Ammal through whom he had four sons by name Sivagurunathan, Muthusamy, Natesan and Ambalavanan. Sivagurunathans sons are plaintiffs in O.S.No.3 of 1987 and they have filed that suit for partition and separate possession of their share in the suit property being the legal heir of Vaithilinga Iyer through his second wife Sivakamiammal. Both the suits were decreed for partition and separate possession. 13. Counsel for the appellants in A.S.No.347 of 1987 contended that the suit is bad for non joinder of necessary parties since the other sharers were not impleaded and so, the heirs of Vaithilinga Iyya through his second wife viz., Sambandam, Dhandapani and Ramalingam ought to have been impleaded in this suit and their non joinder makes the suit bad and without impleading them and the suit ought to have been dismissed. 14. Counsel for the appellants in A.S.No.213 of 1990 contend that the decree passed in O.S.No.12 of 1983 is conclusive and final in spite of the partition suit filed by the appellants since all these facts have been considered in detail about the rights for partition and the suit was decreed in favour of the appellants for half share in the immovable properties and so, the plaintiffs, in O.S.No.3 of 1987 have no right to claim as heirs of Vaithilinga through his second wife Sivakami Ammal. The appellants further contend that the respondents themselves admit that they are not in enjoyment of the suit properties and once they are not in enjoyment of the suit properties, they are estopped from claiming partition and separate possession and the theory of ouster will apply and so, the judgment and decree in O.S.No.12 of 1983 has to be upheld and the judgment and decree of O.S.No.3 of 1987 has to be set aside. .15. The second plaintiff in O.S.No.12 of 1983 has been examined as P.W.1. .15. The second plaintiff in O.S.No.12 of 1983 has been examined as P.W.1. His evidence is that originally, his ancestor Kandaswamy Iyya father of Vaithilinga came to Chidambaram 200 years ago and occupied item 1 of A schedule property by putting up a house and after his death, his son Vaithilinga was in possession and enjoyment of that property and buried the dead body of his father Kandaswamy in that place, built samadhi and put up Sivalingam and worshipped that and there is a sabha mandapam. P.W.1 further states that after the death of Vaithilinga, his son Apparsamy as the legal heir of his father got those properties and he was working in many temples as gurukkal. P.W.1s further evidence is that Apparsamy earned a lot and from out of that money, he built four constructions in item 1 of A schedule property and the patta also stood in the name of Apparsamy. Further evidence of P.W.1 is that Apparsamy was enjoying the property and in that item, there are samadhis of ancestors. The evidence of P.W.1 is that at the time of death of Apparsamy, his sons Devasenathipathi, Somasundaram and Somasundaram, Devasenathipathis son Panchanatha, Somasundarams son Ganapathy, they all constituted one family and were residing in item 1 of the suit property and after the death of Devasenathipathi, Somasundaram and Panchanatha first plaintiff and the first defendant and his son the second defendant representing the branch of Devasenathipathi and after his death, defendants 1 and 2 representing the branch of Somasundaram are each entitled to half share since the properties were being enjoyed by them in common. P.W.1 further states that some of the properties were alienated by him along with the first plaintiff and the first defendant and they alone were dealing with the properties and so, plaintiffs and defendants 1 and 2 together are each entitled to half share in the suit properties. The plaintiff also examined P.W.2 to speak about the construction of the four houses put up by Apparsamy in the suit property and also with regard to Samadhis in that property. He has also spoken to the fact that the plaintiffs and defendants 1 and 2 were doing pooja in the temple. 16. The evidence of D.W.1 in O.S.No.12 of 1983 is that Vaithilinga had two wives and his second wife Sivakami Ammals heirs are defendants 1 and 2 through Sivagurunathan. He has also spoken to the fact that the plaintiffs and defendants 1 and 2 were doing pooja in the temple. 16. The evidence of D.W.1 in O.S.No.12 of 1983 is that Vaithilinga had two wives and his second wife Sivakami Ammals heirs are defendants 1 and 2 through Sivagurunathan. Sivagurunathans brothers son Thirunavukkarasu was Madathipathi at Pondicherry and so, the heirs of Vaithilinga Iyya through his second wife Sivakami are also sharers and they are also entitled to their share in the suit property. D.W.1 further states that himself and the second defendant are residing in door Nos.11 and 11-A and he has also let out premises at door Nos.12-A and 12 on rent for 21 years and poojas are also being performed. He has also filed tax receipts Exs.B-3 to B-27 and patta in the name of Vaithilinga Ex.B-28. So, the evidence of P.Ws. and D.Ws. is that the suit properties were enjoyed in common. 17. The second plaintiff in O.S.No.3 of 1987 was examined as P.W.1 in that case. The plaintiffs in O.S.No.3 of 1987 are the heirs of Vaithilinga through his second wife Sivakami Ammal. The evidence of P.W.1 is that Vaithilinga had four sons through Sivakami Ammal viz., Sivagurunathan, Muthusamy, Natesan and Ambalavanan and they are not alive now and Natesans son is Subramaniam and Ambalavanans son is Thirunavukkarasu and they are defendants 7 and 8 in that suit. P.W.1 in O.S.No.3 of 1987 has spoken to the fact that the suit properties were enjoyed as joint family properties by all the heirs of Vaithilinga through his first wife and second wife and after his death all his five sons are entitled to 1/5 share. He has spoken in his evidence that even after the death of his father, poojas and administration in the sabha mandapam were managed by the heirs of Vaithilinga i.e., plaintiffs and defendants 1 and 2 in O.S.No.3 of 1987. He has spoken in his evidence that even after the death of his father, poojas and administration in the sabha mandapam were managed by the heirs of Vaithilinga i.e., plaintiffs and defendants 1 and 2 in O.S.No.3 of 1987. So, the case of the plaintiff in O.S.No.3 of 1987 is that they being the heirs of Vaithilinga through his second wife are also entitled to their share in the suit properties and as they were not added as parties in the suit O.S.No.12 of 1983, the judgment and decree passed in that suit is not binding on them and so, himself and his brother the first plaintiff in O.S.No.3 of 1987 are entitled to their fathers share i.e., 4/15 share and defendants 7 and 8 each are entitled to 4/15 of their fathers share. 18. Learned counsel for defendants 1 to 4 appellants in O.S.No.3 of 1987 (plaintiffs in O.S.No.12 of 1983) submitted that the rights of the parties have been decided in O.S.No.12 of 1983 and as per that judgment and decree, defendants 1 to 4 are entitled to their half share and that is binding and the judgment and decree in O.S.No.3 of 1987 is liable to be set aside. .19. Counsel for defendants in O.S.No.12 of 1983 have raised their objections in their written statement contending that there are also other sharers viz., plaintiffs 1 and 2 and defendants 7 and 8 in O.S.No.3 of 1987 i.e., the heirs of Vaithilinga and Sivakami Ammal and they are not added as parties and so, that suit is bad for non joinder of necessary parties. In spite of raising such objection in their written statement, the plaintiffs in O.S.No.12 of 1986 did not take any steps to add those persons as parties in that suit. If they were added as parties in that suit, the rights in respect of the other sharers and the question whether they are entitled to any share at all would have been decided in that suit O.S.No.12 of 1983 itself. The plaintiffs in O.S.No.12 of 1983 did not take any steps to add the other sharers in that suit and the suit was left to be decided as it was filed. The plaintiffs in O.S.No.12 of 1983 did not take any steps to add the other sharers in that suit and the suit was left to be decided as it was filed. So, the plaintiffs in O.S.No.3 of 1987 viz., heirs of Vaithilinga through his second wife Sivakami Ammal were constrained to file the suit O.S.No.3 of 1987 for partition and separate possession of their share. 20. Since the other sharers have filed O.S.No.3 of 1987 for partition and separate possession the question whether the suit is bad for non joinder of necessary parties viz., other sharers does not arise for consideration now in this appeal. As the other sharers had filed O.S.No.3 of 1987 as against all other sharers, and the dispute raised by the parties have been decided in O.S.No.3 of 1987 and as all the sharers are parties in O.S.No.3 of 1987 there is no necessity to decide the question in O.S.No.12 of 1983 with regard to the point whether the suit is bad for non joinder of necessary parties. The net result is that if the judgment and decree in O.S.No.3 of 1987 is upheld in his judgment, the judgment and decree passed in O.S.No.12 of 1986 goes off and it is liable to be set aside as the rights of all the sharers have been decided in O.S.No.3 of 1987. The rights of the parties can be decided in A.S.No.213 of 1990 (O.S.No.3 of 1987) and in O.S.No.3 of 1987 even the plaintiffs are declared not entitled to any share and if O.S.No.3 of 1987 is dismissed, the judgment and decree in O.S.No.12 of 1983 has to be upheld because the appellants/defendants in A.S.No.347 of 1986 have raised the question with regard to non joinder of necessary parties alone. 21. The plaintiffs in O.S.No.3 of 1987 have asked for partition and separate possession of their share and they also contend that defendants 7 and 8 are also heirs of Vaithilinga through his second wife. 22. Defendants 1 to 4 in O.S.No.3 of 1987 contend that Vaithilinga did not marry Sivakami Ammal as second wife and so, the children alleged to have born to her are not the sons of Vaithilinga and the plaintiff is put to strict proof for the same. 22. Defendants 1 to 4 in O.S.No.3 of 1987 contend that Vaithilinga did not marry Sivakami Ammal as second wife and so, the children alleged to have born to her are not the sons of Vaithilinga and the plaintiff is put to strict proof for the same. Defendants 1 to 4 in O.S.No.3 of 1987 dispute the relationship of the plaintiffs with Vaithilinga and they contend that the plaintiffs and defendants 8 and 9 are not the legal heirs of Vaithilinga through his second wife. 23. So, the point for consideration is whether the plaintiffs in O.S.No.3 of 1987 are the legal heirs of Vaithilinga through his second wife and whether they are entitled to any share in the suit property. 124. The trial court, after careful consideration of the entire evidence and documents had come to the conclusion that plaintiffs in O.S.No.3 of 1987 are the legal heirs of Vaithilinga through his second wife and they are entitled to partition. 125. During the pendency of the appeals in A.S.No.347 of 1986, C.M.P.Nos.13352 and 13353 of 1986 were filed for impleading the petitioners therein Ramalingam and Subramaniam and this Court dismissed those petitions with the observation that the dismissal of those petitions will not prevent the appellants from raising that point at the time of final hearing of the appeal. As I have already stated since the other suit by the other sharers in O.S.No.3 of 1987 was filed impleading all the sharers, that question does not arise now for consideration. 126. Learned counsel for the plaintiffs in O.S.No.3 of 1987 took me through the relevant documents and strenuously pointed out that the plaintiffs are the children of Vaithilinga through his second wife and Vaithilinga married Sivakami Ammal as his second wife and the plaintiffs are his legal heirs and the plaintiffs are entitled to their share. 127. The case of the plaintiffs in O.S.No.3 of 1987 is that all the suit properties were enjoyed by the sons of both the first and second wife of Vaithilinga. But defendants 1 to 4 in O.S.No.3 of 1987 completely deny this. They contend that only their grandfather Apparsamy was in possession and enjoyment of the suit properties and only defendants 1 to 4 are in possession and enjoyment of the same now and the plaintiffs and defendants 7 and 8 in O.S.No.3 of 1987 were never in possession of the same. .28. They contend that only their grandfather Apparsamy was in possession and enjoyment of the suit properties and only defendants 1 to 4 are in possession and enjoyment of the same now and the plaintiffs and defendants 7 and 8 in O.S.No.3 of 1987 were never in possession of the same. .28. In Ex.A-39 birth certificate of Sivagurunatha Iyer son Vaithilinga Iyya, the name of the father is stated as Vaithilinga Iyya. Ex.A-39 proves that Vaithilinga is the father of Sivagurunatha Iyya who is the father of plaintiffs 1 and 2 in O.S.No.3 of 1987. Ex.A-39 also proves that Sivagurunatha Iyer born at No.9, Ambalathadi Madam Street. Ex.A-40 is Sastiapthapurthi Muhurtha Pathrika in which also it is stated that Sivagurunatha Iyya son of Vaithilinga Iyya. Somasundara Iyya the legal heir of Vaithilinga through his first wife is the invitor in that invitation. The names of Panchanathan, Vaithilinga Iyya, Ganapathy Iyer, heirs of Vaithilinga through his first wife are mentioned in Ex.A-40. So, it is evident from Ex.A-40 that the heirs of Vaithilinga through his first wife and second wife printed the Sastiaptha Muhurtha Pathrika of Sivagurunatha father of plaintiffs in O.S.No.3 of 1987. So, it establishes that all were living jointly and the plaintiffs are heirs of Vaithilinga through his second wife Sivakami Ammal. Ex.A-41 is the invitation card for the funeral ceremony wherein also the names of Somasundaram Panchanatha Iyer and Vaithilinga Iyer were mentioned and it is mentioned that Sivagurunatha is the son of Vaithilinga Ayyar. These documents also prove that the relationship set out in the genealogy is true and the heirs of both the wives of Vaithilinga were performing these ceremonies and functions. Ex.A-42 is the marriage invitation of Panchanathan. Ex.A-43 is the marriage invitation of Vaithyanathan the other heir through the first wife. Ex.A-44 is the marriage invitation of Somasundaram father of defendants 1 and 2 in O.S.No.12 of 1983. Ex.A-46 voters list also shows that Dhandapani and Ramalingam were the sons of Sivagurunatha Iyer. Ex.A-53 is the death certificate of Sivakami Ammal wherein her husbands name is mentioned as Vaithilinga. Ex.A-36 funeral card of Apparsamy also proves that Sivagurunatha Iyer was the brother of Apparsamy. Ex.A-48 voters list also proves that the branch of Apparsamy and Gurunatha were residing in Ambalathadi Madam Street at door No.11. Ex.A-53 is the death certificate of Sivakami Ammal wherein her husbands name is mentioned as Vaithilinga. Ex.A-36 funeral card of Apparsamy also proves that Sivagurunatha Iyer was the brother of Apparsamy. Ex.A-48 voters list also proves that the branch of Apparsamy and Gurunatha were residing in Ambalathadi Madam Street at door No.11. The sixth defendant in O.S.No.3 of 1987 was examined as D.W.1 and he has also spoken in his evidence that Vaithilingam had two wives and his second wife was Sivakami. Ex.B-21 is the funeral card of Sivakami Ammal wherein the names of Appasamy the heir of Vaithilinga through his first wife and the name of Sivagurunathan Iyer the heir of Vaithilinga Iyer through his second wife are stated. In Ex.B-22 funeral card of Apparsamy also the names of Devasanapthy and Somasundara Iyer Vaithilingas heirs through his first wife and the name of Sivagurunatha Iyer, his heir through his second wife are mentioned. All these documents reveal that Sivagurunathan is the son of Vaithilinga through his second wife and the heirs of Vaithilinga through his first and second wives were together performing ceremonies and they were living as one family. Important point to be noted is that in O.S.No.12 of 1983 defendants 1 and 2 have stated that Vaithilinga married Sivakami as second wife and the plaintiffs and defendants 7 and 8 in O.S.No.3 of 1987 are his legal heirs and also sharers. That clear admission of the defendants in O.S.No.12 of 1983 supports the case of the plaintiffs in O.S.No.3 of 1987. So, the admission of the defendants in the written statement and the documents referred to above clearly prove that Vaithilinga married Sivakami as his second wife and plaintiffs 1 and 2 are his heirs. 129. The next important document to prove that Sivakami is the second wife of Vaithilinga is the counter affidavit filed in C.M.P.Nos.13352 and 13353 of 1986 in A.S.No.347 of 1986. In that counter, the father of defendants in O.S.No.12 of 1983 Somasundaram has clearly admitted that the other proposed parties to be added viz., Ramalingam and Subramaniam who are set out in the genealogy are the heirs through the second wife of Vaithilinga. In that counter, the father of defendants in O.S.No.12 of 1983 Somasundaram has clearly admitted that the other proposed parties to be added viz., Ramalingam and Subramaniam who are set out in the genealogy are the heirs through the second wife of Vaithilinga. So, the clear admission of the first defendants father in O.S.No.12 of 1983 also establishes that Sivakami Ammal was the second wife of Vaithilinga and plaintiffs in O.S.No.3 of 1987 are his heirs and this admission is the best evidence. So, a perusal of the oral as well as documentary evidence clearly establishes that plaintiffs in O.S.No.3 of 1987 are the heirs of Vaithilinga through his second wife and they are also sharers and they are entitled to their share. 130. Defendants 1 to 4 contend that the plaintiffs in O.S.No.3 of 1987 are no longer members of the family and they never enjoyed the property and they also did not participate in any of the functions or poojas and other things and there is ouster and they cannot claim any share. 131. Counsel for the plaintiffs in O.S.No.3 of 1987 contend that there is no question of adverse possession as among the co-sharers and even for ouster, it must be established. .32. The evidence of P.W.1 in O.S.No.12 of 1986 is that the suit properties belonged to Apparsamy and he only constructed those houses and those properties belonged to them and the plaintiffs in O.S.No.3 of 1987 have no manner of right over the suit properties. Ex.A-1 is the tax receipt in which the name of Vaithilinga is mentioned and door No.12 Ambalathadi Madam Street is mentioned. Ex.A-2 is the tax receipt for door No.11 which also stands in the name of Vaithilinga. Ex.A-3 is the tax receipt for door No.10 standing in the name of Vaithilingam. In the tax receipts and demand notices, Exs.A-4 to A-16 the name of Vaithilinga is mentioned. The documents prove that the tax registry stood in the name of Vaithilinga. If these properties were the separate as contended by the plaintiffs in O.S.No.12 of 1983, there is no necessity at all for the tax receipts to stand in the name of Vaithilinga. No tax receipts standing in the name of Apparsamy is filed. These tax receipts clearly reveal that Vaithilinga was the original owner and he alone was paying tax for the suit property. No tax receipts standing in the name of Apparsamy is filed. These tax receipts clearly reveal that Vaithilinga was the original owner and he alone was paying tax for the suit property. Ex.A-17 notice was issued to Sivagurunatha Iyer grandfather of the plaintiffs in O.S.No.3 of 1987. Exs.A-17 and A-18 also refer to door Nos.10, 11 and 12. One Sivabagyathammal executed a rent deed Ex.A-19 to Vaithilinga Iyer in respect of door No.12, Ambalathadi Madam Street. Ex.A-20 mortgage deed stands in the name of Vaithilinga Iyer. Ex.A-21 deed was executed by Vaithilinga Iyer in favour of Lakshmana Pillai and Ex.A-22 rent deed was executed by Lakshmanan Pillai in favour of Vaithilinga Iyer. Ex.A-23 is the receipt give by one Perumal to Vaithilinga Iyer stating that as per his direction he has put up a residence in the backside of the matam and he paid Rs.14 as rent and he had agreed to vacate. These things clearly go to establish that Vaithilinga was the original owner and he alone was administering the suit properties. Exs.A-31 and A-32 prove that the kist receipt stand in the name of Sivagurunatha Iyer. No kist receipt in the name of Apparsamy is filed. These documents reveal that Apparsamy and Vaithilinga were in possession and enjoyment of the suit property and it was not in exclusive possession of Apparsamy. Ex.A-51 notice was issued under Survey Act relating to the suit property. These documents clearly reveal that Vaithilinga was the original owner. 20.33. Defendants 1 to 4 filed some documents Exs.B-3 to B-5 and contend that the lessee executed lease deed in favour of Panchanatha Iyer and Ganapathy Iyer. But, the plaintiffs contend that those properties are separate properties of Apparsamy. The documents filed on the side of the plaintiffs prove that the properties belonged to Vaithilinga Iyer and he was in possession and enjoyment of the same and all his heirs are in possession and enjoyment of the suit properties and so, his heirs through his first and second wives are entitled to their share and since it is a joint family property and all the heirs are in possession and enjoyment as joint family property, adverse possession cannot be pleaded as against co-heirs. All the co-heirs are deemed to be in joint possession of the property. If the co-heirs have to be excluded from claiming ownership there must be complete ouster. 234. All the co-heirs are deemed to be in joint possession of the property. If the co-heirs have to be excluded from claiming ownership there must be complete ouster. 234. It is settled law that to constitute ouster, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of all the other co-heirs. It is also well settled that the burden of making out ouster is on the person claiming adverse possession. No document is filed on the side of defendants 1 to 4 that they were in exclusive possession and enjoyment and there was complete ouster to the knowledge of the others. The documents filed clearly prove that all were jointly enjoying the property and no question of ouster arises in this case. 235. The Apex Court has held in Shambu Prasad Singh v. Mst.Phool Kumari Shambu Prasad Singh v. Mst.Phool Kumari Shambu Prasad Singh v. Mst.Phool Kumari A.I.R. 1971 S.C. 1337 that, “On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. As between co-sharers, the possession of one co-sharers is in law the possession of all co-sharers. Therefore to constitute adverse possession, ouster of then on-possessing co-sharer has to be made out. As between them therefore there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.” The Apex Court has observed in P.Laxmi Reddy v. L.Laxmi Reddy P.Laxmi Reddy v. L.Laxmi Reddy P.Laxmi Reddy v. L.Laxmi Reddy (1957)1 MLJ. 46 (S.C.):A.I.R. 1957 S.C. 314 that, “It was well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law as possession of all the co-heirs.” It has been held in Karbalai Begum v. Mohd. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law as possession of all the co-heirs.” It has been held in Karbalai Begum v. Mohd. Sayeed , A.I.R. 1981 S.C. 77 that, “It is well-settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees.” The law as we understand as enunciated by the Supreme Court is that mere exclusive possession by one co-sharer even though he enjoys ouster of the other co-sharer not in possession is not adverse unless there is evidence to establish that the co-sharer in possession had asserted open hostile title and based his exclusive possession thereon. In the instant case, it has been well established by documentary evidence that Vaithilinga was in possession and enjoyment of the suit property and the tax registry stands in his name and he alone was dealing with the properties and leasing the properties and Apparsamy was not in exclusive possession and enjoyment as contended by defendants 1 to 4 and there is acceptable documentary proof for Vaithilinga being elder member of the family had been in possession and enjoyment. 36. I have already given my finding that Vaithilinga had two wives and defendants 1 to 4 in O.S.No.3 of 1987 representing one branch and plaintiffs and defendants 7 and 8 in O.S.No.3 of 1987 representing the other branch. The evidence on the side of the plaintiffs proves that the properties were commonly enjoyed. Absolutely there is no proof that the plaintiffs left the family leaving the exclusive possession of the properties to defendants 1 to 4 so as to constitute ouster. The evidence on the side of the plaintiffs proves that the properties were commonly enjoyed. Absolutely there is no proof that the plaintiffs left the family leaving the exclusive possession of the properties to defendants 1 to 4 so as to constitute ouster. The plaintiffs being co-heirs continue to be the co-heirs possession of one co-heir is, in law, in possession of all the co-heirs and the co-heir in possession cannot render his possession adverse to the other co¬heir, not in possession merely by and secret hostile animus on his own part in derogation of the other co-heirs’ title. There is no evidence for open assertion or hostile title coupled with exclusive possession so as to constitute ouster on the part of the plaintiffs in O.S.No.3 of 1987. Hence, I am of the view that the plaintiffs being legal heirs of Vaithilinga through his second wife are also entitled to their share. 37. The trial court considered all these aspects and decreed the suit O.S.No.3 of 1987 for the plaintiffs 4/15 share and has also directed that with regard to religious ceremonies and poojas in the temple and the rights of the plaintiffs and defendants 1 to 4 have to be decided in the final decree proceedings. Accordingly, I confirm the judgment and decree passed in O.S.No.3 of 1987. In view of the judgment and decree in O.S.No.3 of 1987 being confirmed, I find that O.S.No.12 of 1983 in which all the sharers are not parties before the court it is liable to be dismissed. Accordingly, I uphold the judgment and decree in O.S.No.3 of 1987 and set aside the judgment and decree in O.S.No.12 of 1983. In the result, A.S.No.213 of 1990 is dismissed and A.S.No.347 of 1986 is allowed.