Case Note & Summary
This was a civil appeal by special leave arising from a suit for declaration of title and recovery of possession of ancestral property. The original plaintiffs, including Murthuza Hussain Sahib (second plaintiff), claimed that the suit properties were partitioned under a partition deed dated 4-12-1952, Ex. A-2, between the second plaintiff and his brother Nawab Basha alias Syed Badrajjalami Hussain Sahib. Items 1 and 2 fell to the share of Murthuza Hussain Sahib. The partition deed recited absolute rights of enjoyment, alienation, and hereditary succession. The second plaintiff later made an oral gift of Item No.1 to the first plaintiff. The plaintiffs alleged that the defendants attempted to trespass on 6-1-1968, leading to the filing of the suit on 4-7-1968 for declaration of title and recovery of possession. The trial court dismissed the suit. On appeal, the District Judge, Madurai in AS No. 358 of 1975 by judgment dated 7-7-1977 reversed the trial court and decreed the suit. The High Court in S.A. No. 1640 of 1977 by judgment dated 9-8-1978 dismissed the second appeal, affirming the decree. The defendants appealed to the Supreme Court. The appellants contended that the property belonged to Badralam Sahib and Babjan Sahib and that the respondents had no title unless they established title through Babjan. They also set up adverse possession. The Supreme Court found no force in this contention. The partition deed clearly recited the ancestral properties and separated shares; the second plaintiff remained in uninterrupted possession and enjoyment of his share from 1952 until the suit, asserting his own right as owner. The oral gift of Item No.1 to the first plaintiff was proved. The courts below found that the defendants trespassed on 6-1-1968 for the first time, and the suit was filed within about six months, so adverse possession did not arise. The Court held that the declaration of title was legal and the decree granted by the appellate court and affirmed by the High Court was perfectly legal. The appeal was dismissed with no order as to costs.
Headnote
A) Property Law - Title and Possession - Partition Deed and Possessory Title - Not mentioned - The plaintiffs claimed declaration of title to ancestral property based on partition deed dated 4-12-1952 and an oral gift of Item No.1 to the first plaintiff; they showed uninterrupted possession and enjoyment from 1952 until the suit was filed on 4-7-1968; the Court held that such possession in assertion of own right as owner under the partition deed conferred possessory title and the declaration of title was legal (Paras 1-2). B) Property Law - Adverse Possession - Trespass and Limitation - Not mentioned - The appellants contended that the property belonged to Babjan Sahib and set up adverse possession; the District Judge and High Court found trespass occurred for the first time on 6-1-1968 and the suit was filed promptly on 4-7-1968; the Court held that adverse possession did not arise and negatived the plea (Para 2).
Issue of Consideration
Whether the plaintiffs established title to the suit property through partition deed Ex. A-2 and oral gift, and whether the defendants' claim of title through Babjan Sahib or adverse possession could defeat the plaintiffs' claim.
Final Decision
The Supreme Court dismissed the appeal and upheld the decree granting declaration of title and recovery of possession in favor of the plaintiffs. The Court found that the plaintiffs had possessory title from 1952 based on the partition deed and uninterrupted possession; the plea of adverse possession was negatived because trespass occurred only on 6-1-1968 and the suit was filed promptly on 4-7-1968. No costs were awarded.
Law Points
- Possessory title can be established by uninterrupted possession and enjoyment in assertion of own right under partition deed
- plea of adverse possession requires continuous
- hostile possession for statutory period
- recent trespass and prompt suit negate adverse possession
- declaration of title based on partition deed and long possession is legal.
