LexT.K. MOHAMMED ABUBUCKER (D) THR. LRS. & ORS. versus P.S.M. AHAMED ABDUL KHADER & ORS.
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[2009) 6 S.C.R. 855 T.K. MOHAMMED ABUBUCKER (D) THR. LRS. & ORS. A v. P.S.M. AHAMED ABDUL KHADER & ORS. (CIVIL APPEAL NO. 5455 OF 2002) APRIL 22, 2009 B • [R.V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ.] Land laws - Suit for title and possession of property - c Allegation of encroachment of property by defendant - Said suit property purchased by original owner, which thereafter by. partition fell to share of vendor who sold. it to plaintiff - Dismissal of suit, by trial court and first appellate court - Set aside by Letters Patent Bench - Justification of - Held: Not D justified - Title is to be- established by tracing it to a point beyond a minimum of twelve years before the suit - Neither title of plaintiff nor previous possession of plaintiff nor encroachment by defendants made out - Ownership or possession of plaintiff and his vendors for period of 12 years E prior to suit not established - Thus, order of Letters Patent Bench set aside and that of trial court and first appellate court ., upheld . AP-original owner purchased property by sale deed F dated 2.2.1932 (Ex. A-7 to A-8). He died issueless. There was partition among his brothers and nephews. The suit property was allotted to LA, his brothers and sister. They sold the property to the first respondent-plaintiff under a sale deed executed in year 1982. It was first respondent- G l plaintiffs case that appellants-defendant-had encroached the suit property. First respondent filed suit for declaration of title and possession of the property against defendants. Both the trial court and the High Court 855 H 856 SUPREME COURT REPORTS [2009] 6 S.C.R. A dismissed the suit holding that the plaintiff failed to establish title and possession. However, the Division Bench of High Court allowed the Letters Patent Appeal. Hence the present appeal. B Allowing the appeal, the Court HELD: 1.1. 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 c Articles 64 and 65 of Limitation Act, 1963. 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 D within 12 years. 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 E minimum of 12 years before the suit. This became 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 [Para 7) ~ F [864-D-F; 866-C-D] 1.2. Ex.A7 is a sale deed dated 2.2.1932 executed by one SM in favour of AP. The description of the property sold under the said deed is vague and inconsistent. In respect of Ex.A7-sale deed dated 2.2.1932 in favour of AP G executed by one MP, the position is equally confusing. The actual extent of land was sold in four survey numbers. What is the extent that was sold from out of sy. no.407/28 was not mentioned. Nor does it refer to exclusive possession. Therefore, trial court held that H Ex.A7 and AS are not of any assistance to establish the T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 857 AHAMED ABDUL KHADER title or exclusive possession in regard to 5 acres 11 cents A in survey no. 407/28-2. [Paras 9, 10 and 11] [865-E; 866- C-D; 866-H; 867-A] 1.3. Ex.A13 is a mortgage deed executed by AP in favour of MN on 2.2.1932 itself and Ex.A14 is deed of assignment of the said possessory mortgage on B 27.11.1939 by MN in favour of TH. This would mean that • AP was never in possession of sy. no.407/28 after · 2.2.1932. There is no explanation as to whether AP redeemed the mortgage and got back possession of the c property or how and to whom possession passed on from TH. Ex.A13 & A14 instead of proving the title or possession, add to the confusion ~y showing that AP was never in possession. The marking of the mortgage deed and assignment deed as Exs.A13 & A14 at the stage D of Letters Patent Appeal without any explanatio
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