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

2

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.

3

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

4

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:  

5

(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

6

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

7

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

8

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  1/4th 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.”

9

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.  

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.  

10

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

11

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.

12

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

13

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

14

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)

15

New Delhi; ………….…………….J. April 22, 2009. (Lokeshwar Singh Panta)

16