Judgment :-

R.V. Raveendran, J.

The defendants in a suit for declaration of title and possession are the appellants in this appeal by special leave. The said suit (O.S. No.72 of 1984 on the file of the Subordinate Judge, Ramanathapuram), filed by the first respondent herein was dismissed by judgment dated 21.7.1987. The appeal (A.S. 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 L.P.A. 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. 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 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 plaintiffs 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. 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