Reportable

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)

Vs.

P.S.M. Ahamed Abdul Khader & Ors. …

Respondent(s)

J U D G M E N T

R.V. RAVEENDRAN, J.

The 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

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 the suit.

2.The 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 Mustafa. 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

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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 therefrom,

necessitating the suit.

3.The 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 property.

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.

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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.

Alternatively, by their long, open and exclusive possession and enjoyment

asserting ownership, they perfected their adverse possessory title and

consequently the suit was barred by limitation.

4.The 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

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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.

5.The 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 of facts:

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(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 plaintiff.

(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.

6.The 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

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with the further observations therein (by extracting from an earlier decision)

which read as under:

“….. 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.”

(emphasis supplied)

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.

7.Though 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

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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.

8.As 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

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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.

9.Ex.A7 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 1/4

th

share of K..M. Mohammed Mohammed Thambi, Sehu

Naiyna, and Mohammed Sadak, and the 5/8

th

share belonging to your

joint family, the balance 1/8

th

share equivalent to one acre 5 and 6/16

cents belongs to me and that is the subject matter of the sale.”

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The description of the property shows that what was held by the vendor was

an undivided 1/8

th

share in an extent of 6 acres 11 cents (which in turn was

an undivided portion of 15 acres 11 cents). The 1/8

th

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.

10.The 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.

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11.In 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.

12.We 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

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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.

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13.The 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

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records belatedly and in collusion with the revenue officials. Be that as it

may.

14.The 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.

15.The 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

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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.

16.For 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 respective costs.

………………………..J.

(R. V. Raveendran)

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New Delhi; ………….…………….J.

April 22, 2009. (Lokeshwar Singh Panta)

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