Judgment :- 1. This appeal has been preferred against an observation made in O.S.No.70 of 1987 on the file of the Court of Subordinate Judge, Nagapattinam, dated 8. 1994. The appellants are defendants 4,6,8 to 10 and 12. 2. The suit was filed by the plaintiffs for partition claiming 1/7th share in the plaint schedule properties. According to the plaintiffs, the plaint schedule properties originally belonged to one Antony Roders Vanderveen, who died on 20.7.1938 leaving his wife Emma Reine Vanderveen who also died on 22. 1948. Their children are Winnerfred Theodara, Francis Antony, David Elizabon, Olive Evelyn(D1),Margery Gertrude, Carmal Jane and Juliana Matilda. Winnerfred Theodaras children Mary Elizabeth Hardin(D3) and Louis Ernestine Joseph. Francis Antony, wife is Mirtle Florence(D4) and their children are Defendants 5 to 12, who are the appellants herein. David Elizabon died in the year 1975 whose wife M.Florence died in the year 1986 leaving plaintiffs 1 to 6. Olive Evelyn is D1. Margery Gertrude died in the year 1973 leaving her only legal heir viz her daughter Barbara Curtis, who is D13 in the suit. The other daughter of Antony Roders Vanderveen was Carmal Jane died in the year 1986 leaving D14 to D16 as her legal heirs. The last daughter of Antony Roders Vanderveen, Juliana Matilda died in the year 1982 leaving her husband Wylie(D17). Hence the plaintiffs have filed the suit for partition claiming 1/7th share of David Elizabon as one of seven legal heirs of Antony Roders Vanderveen. The defence taken by the appellants herein/Defendants 4,6,8 to 10 and 12 is that the suit property originally belonged to the grand father of the appellants viz., Antony Roders Vanderveen and the same devolved on his wife Emma Reine Vanderveen, who also died on 22. 1948 and even before her death, Antony Roders Vanderveen , the grand father of the appellants had executed a Will in favour of Francis Antony, the father of the appellants/Defendants 5 to 12. It is the case of the appellants/contesting defendants that after the death of their grand father Antony Roders Vanderveen in 1938, his son Francis Antony, the father of the appellants/Defendants 5 to 12 shifted to Nilgiris and that the wife of Antony Roders Vanderveen and the other children of Antony Roders Vanderveen were shifted to Trichirapalli. It is the case of the appellants/contesting defendants that after the death of their grand father Antony Roders Vanderveen in 1938, his son Francis Antony, the father of the appellants/Defendants 5 to 12 shifted to Nilgiris and that the wife of Antony Roders Vanderveen and the other children of Antony Roders Vanderveen were shifted to Trichirapalli. Only for the purpose of offering worship to "Our Lady of Health" at Valankanni, the other children of Antony Roders Vanderveen occasionally visited to Valankanni. It is the further case of the contesting defendants /appellants that their father Francis Antony alone was in possession and enjoyment of the plaint schedule properties and other properties of Antony Roders Vanderveen and was paying land tax after the demise of Antony Roders Vanderveen in 1938 and that the mutation was effected and patta was also transferred in the name of Francis Antony Vanderveen, the father of defendants 5 to 12 even in the year 1956 and after the death of Francis Antony Vanderveen on 112. 1980, fourth defendant being the wife of Francis Antony Vanderveen and Defendants 5 to 12, the children of Francis Antony Vanderveen were in continuous possession and enjoyment of the plaint schedule properties and were paying land revenue for the properties of Antony Roders Vanderveen, the grand father of Defendants 5 to 12 while in continuous possession and enjoyment of the properties adverse to the interest of the other sharers and that the specific case of the contesting defendants in their written statement is that their father Francis Antony Vanderveen had prescribed title to the plaint schedule properties which are originally belonged to his father Antony Roders Vanderveen. 3. The grievance of the appellants/Defendants 4,6,8,9,10 and 12 is that the learned trial Judge while disposing of the suit, at paragraph 12 line 5 to 10 at inner page 10 of the printed copy of the Judgment, has observed that Defendants 4 to 12/appellants herein have not prescribed title by way of their long continuous possession against the interest of their co-owners (ouster). Further grievance of the learned counsel appearing for the appellants is that while deciding Issue No.2 in O.S.No.70 of 1987, the learned trial Judge at paragraph 10 inner page 7 line 15 of the printed copy of the Judgment has held that since the plaintiffs have filed the suit in the year 1987 itself i.e. within seven years from the date of death of the father of appellants/Defendants 4,6,8 to 10 and 12 viz., Francis Antony Vanderveen, the suit is barred by limitation. Only against the said observation, the appellants have preferred this appeal even though the suit filed by the plaintiffs has been dismissed by the trial Court. 4. The learned counsel appearing for the appellants would contend that the learned trial Judge has failed to take into consideration the fact that after the death of grand father Antony Roders Vanderveen, on 20.7.1938 onwards and also after the death of wife of Antony Roders Vanderveen viz Emma Reine Vanderveen on 22. 1998, the appellants father viz., Francis Antony Vanderveen was in possession and enjoyment of the plaint schedule properties adverse to the interest of other co-owners since they lived Valankanni and that grand father Antony Roders Vanderveen had executed a Will in favour of the father of Defendants 5 to 12 viz., Francis Antony Vanderveen bequeathing Valankanni property in favour of Francis Antony Vanderveen, the father of the appellants and on that date onwards, the father of the appellants was in possession and enjoyment of the plaint schedule property and after his death, the defendants are in continuous possession and enjoyment of the plaint schedule property, after the death of their father Francis Antony Vanderveen and that they have prescribed title by ouster. But the alleged Will in favour of the father of the appellants was not produced before the trial Court, the reason is being it was destroyed by the father of the plaintiffs. 5. Since there was no evidence for the above said pleadings of the defendants, the learned trial Judge has come to a conclusion that the plea of ouster cannot be upheld . Any how, it is left open for the appellants/Defendants 4,6,8 to 10 and 12 to prove their title in respect of the plaint schedule property by raising a definite plea of ouster and to prove the same in a separate proceedings. Any how, it is left open for the appellants/Defendants 4,6,8 to 10 and 12 to prove their title in respect of the plaint schedule property by raising a definite plea of ouster and to prove the same in a separate proceedings. For the future litigation, it is made clear that the observation in the Judgment in O.S.No.70 of 1987 on the file of Court of Subordinate Judge, Nagapattinam at paragraph 11 against defendants 4 to 12 will not amount to res judicata. The question of title of defendants 4 to 12 is left open to be decided in a separate suit and the observation against defendants 4 to 12 by the learned trial Judge in O.S.No.70 of 1987 on the file of Court of Subordinate Judge, Nagapattinam shall not be res judicata inclusive of the finding regarding the limitation. With the above observations, this appeal is disposed of. No costs.