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shivalika   18 February 2019

case law



 4 Replies

Suhail suhail (LAWYER)     18 February 2019

The title of the vandee can be acertained from the sale  registerd sale dcoumet; The vandee title is obviously must.

shivalika   18 February 2019

case reference

Suhail suhail (LAWYER)     18 February 2019

Land laws – Suit for title and possession of property – 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 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 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 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-plaintiff’s 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 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. =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 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 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 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] [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 descripttion 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 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.407/2B was not mentioned. Nor does it refer to exclusive possession. Therefore, trial court held that 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. [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 27.11.1939 by MN in favour of TH. This would mean that AP was never in possession of sy. no.407/2B after 2.2.1932. There is no explanation as to whether AP redeemed the mortgage and got back possession of the 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 by showing that AP 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. Thus, the finding of the trial court upheld by Single Judge that inspite of the sale deed dated 2.3.1982 in his favour or the earlier deeds, plaintiff had not made out title or possession in regard to sy. no.407/2B-2 measuring 5 acres 11 cents get fortified. [Para 12] [867-B-F] 1.4. Adangal extract- 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. [Para 13] [868-B-E] 1.5. 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; and that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours/villagers, were examined. Therefore, there was no evidence about previous possession. Plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession. [Para 14] [868-F-G] 1.6. The Letters Patent Bench proceeded on the basis that the suit was dismissed on the ground of adverse possession of defendants. The trial court and the first appellate 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. 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. Therefore, the 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 order of the Letters Patent Bench is set aside, and the judgment and decree of the Single Judge confirming the dismissal of the suit is restored. [Paras 15 and 16] [868-H; 869-A-E] Asha Devi vs. Dukhi Sao AIR 1974 SC 2048 and Umabai vs. Nilkanth Dhandiba Chavan 2005 (6) SCC 243, referred to. Case Law Reference: AIR 1974 SC 2048 Referred to. Para 6 2005 (6) SCC 243 Referred to. Para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5455 of 2002. From the Judgment & Order dated 13.11.2001 of the High Court of Judicature at Madras in L.P.A. No. 125 of 2001. Hari Shankar K., for the Appellant. V. Raghava Chari, R. Anand Padmanabhan, S.R. Sundar, Pramod Dayal, R. Nedumaran for the Respondent.

Suhail suhail (LAWYER)     18 February 2019

K.Ramasamy : vs Ayyasamy : on 15 December, 2016





Operative Part;

22.It is pertinent to mention that Ex.B1 is not a document where a past transaction is recorded as rightly held by Courts below and it is a document intended to create right in presenti and hence, there is no substance in the third question of law. With regard to the maintainability of the suit for bare injunction, it is to be seen in the present case that the plaintiff has neither considered nor acknowledged the claim of title by the defendant. Hence, having regard to the averments in the plaint, a suit for bare injunction is maintainable. Further, the defendant / appellant in this case has specifically admitted the fact that the suit property originally belonged to one Sangava Naicker under whom the plaintiff and the defendant claim. Since the defendant / appellant claimed titled by adverse possession on the basis of an unregistered sale deed under Ex.B1 which is not admissible in evidence, the Courts below are right in holding that the suit is maintainable. A suit for bare injunction is maintainable against any one who has no better title than the plaintiff. Even for a suit for bare injunction, the question of title can be incidentally gone into and having regard to the facts in this case that the defendant / appellant has not even pleaded a case to get him title, the suit for bare injunction cannot be dismissed on the ground of failure to seek declaration of title. The fifth question of law is also relating to the findings of the Courts below which have been approved by this Court as proper and do not suffer from any legal infirmity. The lower appellate Court has framed necessary issues and it is surprising to note that the appellant has raised a mechanical ground as seen from the sixth question of law. No argument was advanced by the learned counsel for the defendant / appellant on the sixth question of law. In the light of the findings of the Courts below on all issues against the defendant / appellant, I am unable to find any legal infirmity or error in appreciation so as to hold that the findings are perverse. The Second Appeal has therefore no merit and hence, dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed

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