T.K. MOHAMMED ABUBUCKER (D) THR. LRS. & ORS.versusP.S.M. AHAMED ABDUL KHADER & ORS.

                            [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)

                                                                         B
                              APRIL 22, 2009

            [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-
l       plaintiffs case that appellants-defendant-had encroached         G
        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.

          Allowing the appeal, the Court
B
        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)        ~


  [864-D-F; 866-C-D]
F
      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         B
         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.407/28 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
                                                                       c
         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
         of Letters Patent Appeal without any explanation or           D
         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     E
         possession in regard to sy. no.407/28-2 measuring 5
         acres 11 cents get fortified. [Para 12] [8G7-B-F]
....         1.4. Adangal extract- Ex. AG may not really help the
        plaintiff to prove possession. Ex.AG is said to cover the      F
        period 1974 to 198G, including 1984 to 1986, when suit by
        plaintiff was pending. That is Ex.AG 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,    G
        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.AG showing that plaintiff was
                                                                       H
    858      SUPREME COURT REPORTS              [2009) 6 S.C.R.


A 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
B 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,
C 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 n9t 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
D 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
E 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
F 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
G 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
H held to be barred by limitation. But even without the said
    860         SUPREME COURT REPORTS                  (2009) 6 S.C.R.


A the first respondent herein was dismissed by judgment dated
  21. 7.1987. The appeal (AS. 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 LP.A.
8 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 plaintiffs case in brief: The plaintiff purchased Sy.
C    No.407/2-8-2 measuring 5 acres 11 cents in Kanjirangudi
     Village, Ramanathapuram District along with some other lands
     µnder sale deed dated 2.3.1982 (Ex.A4) executed ~y 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
D    (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.
E   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
F   property among others was allotted to S.A.M. Liyakath Ali Khan
    and his three brothers and sister, and they sold it 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
G   the date of sale. Plaintiff carries on business in Hongkong.
    Defendants are the owners of the adjoining lands bearing Sy.
    No.404/4·8 and 404/3 and taking advantage of the plaintiffs
    absence, encroached upon the entire suit property and annexed
    it to their lands and also cut and removed the trees therefrom,
H   necessitating the suit.
 T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 861
    AHAMED ABDUL KHADER [R.V. RAVEENDRAN, J.]

      . 3. The defendants' case in brief: Neither plaintiff nor his    A
 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      B
 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   c
 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. 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            0
 sold it to one V.M. Wappa Sahib under deed dated 1.9.1940
who in tum 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             E
cents (assigned the sub-number as Sy.No.407/2-8-2 (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)          F
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 G
PW1 and marked as Ex.A1 to A12. Second defendant gave
evidence as DW1 on.behalf of the defendants, and got marked
Ex.81 to 830. The Court Commissioner reports and the sketch
were marked as Ex.C1 to C3. After elaborate consideration of
the evidence, the trial court dismissed the suit by judgment H
    862         SUPREME COURT REPORTS                   (2009) 6 S.C.R.


A 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         {b) The two sale deeds dated 2.2.1932 [Ex.A7 & AS] in
          favour of Allah Pitchai did not establish the title or
          possession of Allah Pitchai in regard to survey no.407/28-
          2 measuring 5 acres 11 cents. Consequently his brothers'
          children who sold the suit property to plaintiff did not have
c         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.81 to 87 and 88 to 830. Suit property falls under
D         patta no.355 and Ex.BB to 829 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.
E
       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
F 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:

G         (i) The plaintiff had established his title to the property by
          showing that Allah Pitchai had purchased the property
          under Ex.A7 to AB (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
H
     T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 863
        AHAMED ABDUL KHADER [RV. RAVEENDRAN, J.]

              sister; and that they had sold the property to the plaintiff.    A

              (ii) Apart from the title of Allah Pitchai being traced to the
              sale deeds dated 2.2.1932 (Ex.A? & A8), two other
              documents (Ex.A13 & A14) produced by plaintiff and
              received in the Letters Patent Appeal under Order 41 Rule
                                                                               B
              27 CPC, showed that Allah Pitchai was in possession and
              he mortgaged the property under a deed dated 2.2.1932
t             in favour of Mannan Perumal Nadar, who had assigned the
              mortgage on 27.11.1939 in favour of one Thillavahammai.
              Though the defendants produced the kist receipt from
              1943 to 1972, they did not produce the kist receipt from         c
              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.
                                                                               D
         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               E
    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 with the further observations
    therein (by extracting from an earlier decision) which read as             F
    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
t             generally speaking t.be Letters Patent Bench would be            G
              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
                                                                               H
    --.   '
    864        SUPREME COURT REPORTS                   [2009] 6 S.C.R.


A         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
B 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, ttie Letters Patent Bench should be slow in
C 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,
D    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 traced to a
     grant or transfer by the government or a statutory development
     authority, as contrasted from a transfer from a private person,
E   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        .
F   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
G   and more, prior to the suit. Plaintiffs 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 plaintiffs
    vendor nor their father acquired the property under any deed
    of conveyance. In the circumstances, it became necessary for
H   the plaintiff, to establish the title of Allah Pitchai to the suit
         T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 865
            AHAMED ABDUL KHADER [R.V. RAVEENDRAN, J.]
     >   property, so as to trace title for a continuous period of 12 years.   A

               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 reference to the sale deed executed          B
         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.A? and A8 dated 2.2.1932 relied on by plaintiff
         to support the title in Allah Pitchai and pointed out that neither
,/       Ex.A? nor in Ex.AS gave the extent of land purchased by Allah
         Pitchai in Sy.No.407/28 nor established exclusive possession
                                                                               c
         in Allah Pitchai. The Letters Patent Bench without considering
         the contents of Ex.,A.7 & A8 or analysing the reasons given by
         the trial court to reject Ex. A7 and A8, merely observed that
         Ex.A? & A8 referred to Sy.No.407/28 and its total extent, and
         therefore Allah Pitchai's title was established with reference to     D
         Ex.A? and A8.

              9. Ex.A? 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                E
         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.407/28 (5 acres
                                                                               F
             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                   G
             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."

         The description of the property shows that what was held by           H
    S66        SUPREME COURT REPORTS                [2009] 6 S.C.R.


A the vendor was an undivided 1/Sth share in an extent of 6 acres
  11 cents (which in turn was an undivided portion of 15 acres
  11 cents). The 1/Sth 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 tf\at was
B sold from out of sy. no.407/28 was not mentioned.

       10. The position is equally confusing in respect of Ex.AS
  also, which is also a sale deed dated 2.2.1932 in favour of Allah
  Pitchai executed by one Mannan Perumal Nadar. This sale                i

c 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.40S/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.40S/3 (2 acres 24 cents), in patta no. 354, and survey
D no.407/28 (5 acres 32 cents) in patta no. 355; and Sy. no.407/
  2A (1 acre) and sy. no.40S/38 (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.407/28 is not mentioned. Nor does it refer
  to exclusive possession.
E
       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.407/28/1 (earlier part of Sy. No.407/28) measuring 21
  cents. Therefore, while Ex.A? and Ex.AS may be evidence to             .
F show that Allah Pitchai had purchased some part of survey
  no.407/28, they do not show him to be the purchaser or owner
  of 5A 11 cents in sy. no.407/28-2 (Sy.No.407/28 was
  subsequently subdivided and renumbered as sy. no.407/28-1
  measuring 21 cents and Sy. No.407/28-2, measuring 5 acres
  11 cents). Ex.A? and AS can at best be evidence to show that
G
  Allah Pitchai purchased a portion of survey no.407/28. This may
  mean that it evidences title to Sy.No.407/28-t measuring 21
  cents which lies to the north of survey no.407/28-2. Therefore,
  as rightly held by the trial court Ex.A? and AS are not of any
  assistance to establish the title or exclusive possession in
H
              T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 867
                 AHAMED ABDUL KHADER [R.V. RAVEENDRAN, J.]
         ~
             regard to 5 acres 11 cents in survey no. 407/28-2.                A

                    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 B
              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 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
                                                                                c
              37 and 6/16 cents, including survey no.407/2B measuring 5
             acres 32 c~nts. 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 D
    -,
             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 E
             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 F
             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 AB), plaintiff had not made out title or possession in
             regard to sy. no.407/28-2 measuring 5 acres 11 cents get
             fortified.                                                         G
                  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
                                                                               H
    868        SUPREME COURT REPORTS                [2009] G S.C.R.


A 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 SA 11
  cents from 1943 to 1974 and Ex.B30 which was an Adangal
  showing the possession of the defendants. But Ex.AG may not
B really help the plaintiff to prove possession. Ex.A6 is said to
  cover the period 1974 to 198G, including 1984 to 1986, when
  suit by plaintiff was pending. That is Ex.AG shows plaintiff as
  the person in possession in regard to t~e suit land when the
  suit was filed in 1984 and even thereafter. But plaintiff himself
c 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.AG showing
  that plaintiff was in possession from 1974 to 198G cannot be
D
  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
E
  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 bi making out his title and entitlement to
F 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
G 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 appellate
H
 T.K. MOHAMMED ABUBUCKER (D) THR. LRS. v. P.S.M. 869
    AHAMED ABDUL KHADER [R.V. RAVEENDRAN, J.]

 court on examination of the title found that plaintiff had made A
 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 th~t the plaint
and the evidence of plaintiff are wholly silent as to when, that
is in which year, the defendants allegedly encroached upon the B
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 c
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
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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       E
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.
                                                                      F
N.J.                                             Appeal allowed.