Abubucker (D) THR.LRS.& Ors. Vs. P.S.M. Ahamed Abdul Khader & Ors.
 INSC 814 (22 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5455 OF 2002 T.K.
Mohammed Abubucker (D) Thr. LRs. & Ors. ... Appellant(s) P.S.M. Ahamed
Abdul Khader & Ors. ...
R.V. RAVEENDRAN, J.
defendants in a suit for declaration of title and possession are the appellants
in this appeal by special leave. The said suit (O.S. No.72 of 1984 on the file
of the Sub-ordinate Judge, Ramanathapuram), filed by the first respondent
herein was dismissed by judgment dated 21.7.1987. The appeal (A.S. No.924 of
1987) filed by the first respondent was dismissed by a learned Single Judge of
the Madras High Court by judgment dated 2 25.4.2001 and that decision was
challenged by the first respondent in L.P.A. No.125 of 2001. The said appeal
was allowed by a Division Bench of Madras High Court by its judgment dated
13.11.2001. For convenience, the parties will also be referred by their rank in
plaintiff's case in brief: The plaintiff purchased Sy. No.407/2-B- 2 measuring
5 acres 11 cents in Kanjirangudi Village, Ramanathapuram District along with
some other lands under sale deed dated 2.3.1982 (Ex.A4) executed by S.A.M.
Liyakath Ali Khan and his three brothers and sister. The said land originally
belonged to one S.A.M. Allah Pitchai Ambalam (for short `Allah Pitchai') who
died issueless in the year 1967 survived by his brothers S.A.M. Mohammed Mustafa
and SAM Mohammed Hamid Sultan and his nephew Mir Moinudeen, son of predeceased
brother S.A.M. Hassan Hussain Pillai. Patta was transferred to the name of
S.A.M. Mohammed Hamid Sultan died subsequently leaving him surviving five
children namely Liyakath Ali Khan, three other sons and one daughter. There was
a partition dated 25.8.1981 (Ex. A3) among S.A.M. Mohammed Mustafa and the
children of his two deceased brothers. In the said partition, the suit property
among others was allotted to S.A.M. Liyakath Ali Khan and his three brothers
and sister, and they sold it 3 to the plaintiff. The patta which stood in the
name of S.A.M. Mohammed Mustafa was transferred to the name of the plaintiff.
The possession of the suit property was delivered to the plaintiff on the date
of sale. Plaintiff carries on business in Hongkong. Defendants are the owners
of the adjoining lands bearing Sy. No.404/4-B and 404/3 and taking advantage of
the plaintiff's absence, encroached upon the entire suit property and annexed
it to their lands and also cut and removed the trees there from, necessitating
defendants' case in brief: Neither plaintiff nor his predecessors had title or
possession in regard to the suit property. The suit property as also the
adjoining lands belong to the defendants, and they and before them their
parents have been in possession thereof ever since 1940. The sale deed dated
2.3.1982 in favour of plaintiff was created to lay a false claim over the suit
property. The plaintiff and his vendors, being influential and rich, had
managed to secure the patta in their names in collusion with the revenue
officials without notice to the defendants. Allah Pitchai to whom plaintiff
attempts to trace title, had neither title nor possession over the suit
The father of the
defendants (Hameed Sultan) purchased 3 acres 19 cents in Sy. No.407/2-B as also
the adjoining survey no.404/4-B from one A.M.
Meera Sahib under
sale deed dated 25.1.1940. The remaining extent in Sy. No.407/2-B earlier
belonged to Kalimuthu Nadar and Subramanian Nadar and they sold it to one V.M.
Wappa Sahib under deed dated 1.9.1940 who in turn sold it to defendants' mother
Ayisha Bibi under sale deed dated 15.10.1941. On the death of their father in 1948
and mother in 1969, the defendants became the owners of the two portions of Sy.
No.407/2-B in all measuring 5 acres 11 cents (assigned the sub-number as
Sy.No.407/2-B-2 (suit property) and they are in possession and enjoyment of the
suit property as absolute owners. The suit property and the adjoining property
both belonging to defendants is encircled by a single fence. They have been
paying the land revenue (kist) in regard to the said property from 1942-43.
their long, open and exclusive possession and enjoyment asserting ownership,
they perfected their adverse possessory title and consequently the suit was
barred by limitation.
plaintiff examined his power of attorney holder as PW1 and marked as Ex.A1 to
A12. Second defendant gave evidence as DW1 on behalf of the defendants, and got
marked Ex.B1 to B30. The Court Commissioner reports and the sketch were marked
as Ex.C1 to C3. After 5 elaborate consideration of the evidence, the trial
court dismissed the suit by judgment dated 21.7.1987 recording the following
finding of facts :
(a) The plaintiff
failed to prove that his vendors had any title over the suit property and
consequently, failed to prove his title.
(b) The two sale
deeds dated 2.2.1932 [Ex.A7 & A8] in favour of Allah Pitchai did not
establish the title or possession of Allah Pitchai in regard to survey
no.407/2B- 2 measuring 5 acres 11 cents. Consequently his brothers' children
who sold the suit property to plaintiff did not have title, nor could convey
any title to plaintiff.
(c) The defendants
had established their title to the suit property and possession with reference
to deed marked as Ex.B1 to B7 and B8 to B30. Suit property falls under patta
no.355 and Ex.B8 to B29 established that the kist (land revenue) was paid by
the defendants in regard to the suit property between 1943 to 1972. The adangal
extract (Ex.R30) established their possession. The Court Commissioner confirmed
that defendants were in possession.
appeal filed by the plaintiff was dismissed by the learned Single Judge by
judgment dated 25.4.2001 confirming the finding of facts recorded by the trial
court. The Division Bench of the High Court by its judgment dated 13.11.2001
allowed the Letters Patent Appeal filed by the plaintiff, and decreed the suit,
thereby reversing the concurrent finding of facts recorded by the trial court
and the learned Single Judge. The Division Bench recorded the following finding
(i) The plaintiff had
established his title to the property by showing that Allah Pitchai had
purchased the property under Ex.A7 to A8 (both dated 2.2.1932); that after
death of Allah Pitchai, there was a partition among his brother and nephews,
and that the suit property was allotted to the share of S.A.M. Liyakath Ali
Khan and his brothers and sister; and that they had sold the property to the
(ii) Apart from the
title of Allah Pitchai being traced to the sale deeds dated 2.2.1932 (Ex.A7
& A8), two other documents (Ex.A13 & A14) produced by plaintiff and
received in the Letters Patent Appeal under Order 41 Rule 27 CPC, showed that
Allah Pitchai was in possession and he mortgaged the property under a deed
dated 2.2.1932 in favour of Mannan Perumal Nadar, who had assigned the mortgage
on 27.11.1939 in favour of one Thillavanammai. Though the defendants produced
the kist receipt from 1943 to 1972, they did not produce the kist receipt from
1973 onwards. The plaintiff had produced the Adangal extract (Ex.A6) to show
that he and his predecessors were in possession of the suit property from 1974
onwards. Thus previous possession was established.
Letters Patent Bench, by re-appreciating the evidence, has reversed the
concurrent finding of facts recorded by the trial court and the first appellate
court. In Asha Devi vs. Dukhi Sao [AIR 1974 SC 2048], relied on by the Letters
Patent Bench, this Court no doubt held that powers of letter patent bench is
not limited to questions of law, and that it has the same power which the
Single Judge has, as a first appellate court in respect of both questions of
law and fact. But the said observations should be read 7 with the further
observations therein (by extracting from an earlier decision) which read as
"..... it will
be open to the High Court to review even findings of fact in a Letters Patent
Appeal from a first appeal heard by a learned Single Judge, though generally
speaking the Letters Patent Bench would be slow to disturb concurrent findings
of fact of the two courts below. But there is no doubt that in an appropriate
case a Letters Patent bench hearing an appeal from a learned Single Judge of
the High Court in a first appeal heard by him is entitled to review even
findings of fact."
The above view was reiterated in Umabai vs. Nilkanth Dhandiba Chavan [2005 (6)
SCC 243] by observing that in the absence of cogent reasons, letters patent
bench would not differ from a finding of fact recorded by a Single Judge. Where
the trial court and the first appellate court have considered the evidence
thoroughly and have based their concurrent findings on the evidence, the
Letters Patent Bench should be slow in interfering with such findings. On a
careful consideration of the facts of this case, we are of the view that
interference by the Letters Patent Bench was not warranted.
title to an immovable property is usually established by tracing it for a
period of thirty years, many a time, the search and tracing is restricted to a
minimum period of twelve years, presumably with reference to Articles 64 and 65
of Limitation Act, 1963. Further, where the title is traced to a grant or
transfer by the government or a statutory development authority, as contrasted
from a transfer from a private person, the search is not taken prior to such
transfer/grant, even if such transfer/grant is within 12 years. Therefore in a
suit for declaration of title filed in 1984, reliance on title deeds dated
2.3.1982 (sale deed) and 25.8.1981 (partition deed) would not establish title
as that would trace title hardly for 3 years. To establish the title, it was
necessary to trace it to a point beyond a minimum of 12 years before the suit.
This became all the more necessary as the plaintiff did not have possession,
nor were any revenue entries available to support the ownership or possession
of plaintiff and his vendors for a period of 12 years and more, prior to the
suit. Plaintiff's vendors claimed that their father and his brothers inherited
it from Allah Pitchai and at a subsequent partition (which took place three
years prior to the suit), they were allotted the suit property. Neither the
plaintiff's vendor nor their father acquired the property under any deed of
conveyance. In the circumstances, it became necessary for the plaintiff, to
establish the title of Allah Pitchai to the suit property, so as to trace title
for a continuous period of 12 years.
noticed above, the trial court and the learned Single Judge held that the title
and possession of Allah Pitchai was not established and consequently, the
plaintiff's title could not be supported merely with 9 reference to the sale
deed executed in his favour on 2.3.1982 or the partition deed dated 25.8.1981
under which his vendors allegedly got title. The trial court considered Ex.A7
and A8 dated 2.2.1932 relied on by plaintiff to support the title in Allah
Pitchai and pointed out that neither Ex.A7 nor in Ex.A8 gave the extent of land
purchased by Allah Pitchai in Sy.No.407/2B nor established exclusive possession
in Allah Pitchai. The Letters Patent Bench without considering the contents of
Ex.A7 & A8 or analysing the reasons given by the trial court to reject Ex.
A7 and A8, merely observed that Ex.A7 & A8 referred to Sy.No.407/2B and its
total extent, and therefore Allah Pitchai's title was established with
reference to Ex.A7 and A8.
is a sale deed dated 2.2.1932 executed by one Seyed Madhar Sahib in favour of
Allah Pitchai. The description of the property sold under the said deed is
vague and inconsistent. The sale deed described the property sold in the
following manner (translation from Tamil):
"What is sold is
from out of Sy. no.403/3 (4 acres 44 cents), Sy. no.404/4 (3 acres 11 cents),
Sy. no.407/2B (5 acres 32 cents) and Sy. no.408/3A (2acres 24 cents) in all 15
acres 11 cents. Out of which 9 acres jointly held by Ayyam Perumal Nadar,
Kalimuthu Nadar and Nachiammal should be excluded. Out of the balance, after
excluding the 1/4th share of K..M. Mohammed Mohammed Thambi, Sehu Naiyna, and
Mohammed Sadak, and the 5/8th share belonging to your joint family, the balance
1/8th share equivalent to one acre 5 and 6/16 cents belongs to me and that is
the subject matter of the sale."
10 The description
of the property shows that what was held by the vendor was an undivided 1/8th
share in an extent of 6 acres 11 cents (which in turn was an undivided portion
of 15 acres 11 cents). The 1/8th share in 6 acres 11 cents would be 76.375
cents and not one acre 5 and 6/16 cents. Further, as the extent sold was in
four survey numbers. what is the extent that was sold from out of sy. no.407/2B
was not mentioned.
position is equally confusing in respect of Ex.A8 also, which is also a sale
deed dated 2.2.1932 in favour of Allah Pitchai executed by one Mannan Perumal
Nadar. This sale deed describes the subject matter of sale as : "My
family's half share of 7 acres 16 cents, out of Sy. No.403/3 (4A 44C) Sy.
No.408/3 (3A 56C) and 407/2 (6A 32C) in all 14A 32C." It gives the details
of the property sold as : share in jointly held 12 acres of land consisting of
Sy. no.403/3 (4 acres 44 cents), survey no.408/3 (2 acres 24 cents), in patta
no. 354, and survey no.407/2B (5 acres 32 cents) in patta no. 355; and Sy.
no.407/2A (1 acre) and sy. no.408/3B (1 acre 32 cents) in all 7 acres 16
cents". What is relevant to be noticed is that the actual extent conveyed
in Sy. No.407/2B is not mentioned. Nor does it refer to exclusive possession.
fact, defendants do not dispute the fact that Allah Pitchai was the owner of
sy. no.407/2A measuring 1 acre and sy. no.407/2B/1 (earlier part of Sy.
No.407/2B) measuring 21 cents. Therefore, while Ex.A7 and Ex.A8 may be evidence
to show that Allah Pitchai had purchased some part of survey no.407/2B, they do
not show him to be the purchaser or owner of 5A 11 cents in sy. no.407/2B-2
(Sy.No.407/2B was subsequently subdivided and renumbered as sy. no.407/2B-1
measuring 21 cents and Sy. No.407/2B- 2, measuring 5 acres 11 cents). Ex.A7 and
A8 can at best be evidence to show that Allah Pitchai purchased a portion of
survey no.407/2B. This may mean that it evidences title to Sy.No.407/2B-1
measuring 21 cents which lies to the north of survey no.407/2B-2. Therefore, as
rightly held by the trial court Ex.A7 and A8 are not of any assistance to
establish the title or exclusive possession in regard to 5 acres 11 cents in
survey no. 407/2B-2.
may next refer to the possessory mortgage deed dated 2.2.1932 and deed of
assignment of mortgage dated 7.11.1939 which the plaintiff produced under Order
41 Rule 27 and which was admitted into evidence by the Letters Patent Bench by
marking them as Exs.A13 and A14. It is seen that Ex.A13 is a mortgage deed
executed by Allah Pitchai in favour of Mannan Perumal Nadar on 2.2.1932 itself
(that is on the same day on which 12 Allah Pitchai purchased an undivided 7
acres 16 cents from Mannan Perumal Nadar in survey nos. 403/3, 408/3, 407/2B, 407/2A
and 408/3B) mortgaging 15 acres 37 and 6/16 cents, including survey no.407/2B
measuring 5 acres 32 cents. Ex.A14 is deed of assignment of the said possessory
mortgage on 27.11.1939 by Mannan Perumal Nadar in favour of Thillavanammai.
This would mean that Allah Pitchai was never in possession of sy. no.407/2B
after 2.2.1932. There is absolutely no explanation as to whether Allah Pitchai
redeemed the mortgage and got back possession of the property or how and to
whom possession passed on from Thillavanammai. Ex.A13 & A14 instead of
proving the title or possession, add to the confusion by showing that Allah
Pitchai was never in possession. The marking of the mortgage deed and
assignment deed as Exs.A13 & A14 at the stage of Letters Patent Appeal
without any explanation or connecting or linking oral evidence, makes it
difficult to accept these two documents as relevant documents. Resultantly, the
finding of the trial court affirmed by the learned Single Judge that inspite of
the sale deed dated 2.3.1982 in his favour or the earlier deeds (Ex.A3, A7 and
A8), plaintiff had not made out title or possession in regard to sy.
no.407/2B-2 measuring 5 acres 11 cents get fortified.
Letters Patent Bench has observed that the plaintiff established possession by
referring to the Adangal extract (Ex.A6) for the years 1974 to 1986. In view of
the said Adangal extract, the Division Bench brushed aside the clear and
categorical evidence contained in Exs.B8 to B29 which showed payment of kist by
defendants in regard to patta no.355 which included survey no.407/2B-2
measuring 5A 11 cents from 1943 to 1974 and Ex.B30 which was an Adangal showing
the possession of the defendants.
But Ex.A6 may not
really help the plaintiff to prove possession. Ex.A6 is said to cover the
period 1974 to 1986, including 1984 to 1986, when suit by plaintiff was
pending. That is Ex.A6 shows plaintiff as the person in possession in regard to
the suit land when the suit was filed in 1984 and even thereafter. But
plaintiff himself admits that even before the suit was filed in 1984, the
defendants were in possession of the suit land and that he was not in
possession when the suit was filed or thereafter. This is also supported by the
evidence of the Court Commissioner who found the defendants in possession.
Therefore, Ex.A6 showing that plaintiff was in possession from 1974 to 1986
cannot be believed or relied upon to establish the possession of plaintiff. On
the other hand it lends support to the defendants' claim that plaintiffs and
his predecessors being rich and influential persons, had managed to get their
names entered in the revenue records belatedly and in collusion with the
revenue officials. Be that as it may.
Letters Patent Bench overlooked the fact that a plaintiff in a suit for
declaration of title and possession, can succeed only by making out his title
and entitlement to possession and not on any alleged weakness in the title or
possession of the defendants. It also overlooked the fact that the plaintiff
did not step into the witness box and that none of his vendors and none of the
neighbours/villagers, were examined. There was therefore no evidence about
previous possession. In fact, plaintiff had deliberately withheld evidence as
to the date from which the defendants were in possession.
Letters Patent Bench also proceeds on the basis that the suit was dismissed on
the ground of adverse possession of defendants. The trial court and the first
appellant court on examination of the title found that plaintiff had made out
neither title nor previous possession. They also found that defendants were in
possession. The trial court and the first appellate court also noticed the
significant fact that the plaint and the evidence of plaintiff are wholly
silent as to when, that is in which year, the defendants allegedly encroached
upon the suit property. The plaint merely stated that during the absence of
plaintiff, the defendants had encroached the suit property in entirety. Neither
the date, month or year is given. In that context, the trial court also
observed that defendants should be taken as having established their adverse
possessory title also and consequently, suit should be held to be barred by
limitation. But even without the said finding, the suit was liable to be
dismissed as neither title of plaintiff, nor previous possession of plaintiff,
nor encroachment by defendants was made out. We are therefore of the view that
Letters Patent Bench interfered with the well reasoned judgments of the trial
court and first appellate court which were based on concurrent finding of
facts, without justification, and in the absence of any clear and acceptable
evidence. This was unwarranted.
the foregoing reasons, this appeal is allowed, the order of the Letters Patent Bench
is set aside, and the judgment and decree of the learned Single Judge
confirming the dismissal of the suit is restored. Parties to bear their
(R. V. Raveendran)
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