T.K. Mohammed Abubucker(D)Thr.Lrs.& ... vs P.S.M. Ahamed Abdul Khader & Ors

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 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 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. 4 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 5 elaborate consideration of the evidence, the trial court dismissed the suit by judgment dated 21.7.1987 recording the following finding of facts :

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:

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.