?. IN THE HIGH COURT OF SIKKIM R.F.A. No. 8 of 2000 DateofDecision:27thSeptember2090. Bir Bahadur Rai Resident of uttar Regu Busty Post Office and Police Station Rangli, in the East District of sikkim. VERSUS Aringdas Rai son of Late Charandas Rat resident of Dalepchand Busty Post Office and Police Station Rangli in the East District of Sikkim. Coram : The Hon'ble M. Justice Anup Deb2 Judge. Appellant/ Defendant. Respondent/ Plaintiff. Present: Mr. N.B. Kharga, Advocate for the appellant. M. A. Moulik, Advocate for the respondent. DEB. J. JUDGRENT This appeal is directed against the jndgmept and decree passed by the Civil Judge, East Silckin at Gangtok on 30th October 1999 in Civil Suit No. 14 of 1985 by which the Suit was decreed in favour of the €/ `. respondent-plaintiff. 2. The fact of the case as set out in the plaint is that the suit property belonged to one `.RIld Dhan who had two sons Rajman and Chandras. Rajman died in 1933. Chandradas died in 1943. Rajman had one son Padan Dhoj and one daughter Dhanrupi. Chandradas had only one son Aringadas who is the plaintiff in the suit and respondent in the appeal. gch`-C§ tJ Dharmpi died issueless. Padam Dhoj left his house around in the year 1955 and since then there is no trace of his existence. Respondent- plaintiff s case is that Rj]d Dhan was the owner of the properdes mentioned in Schedule-`M'. Since Dhanrupi died issueless and Padan Dhoj has sustained civil death because of being traceless for over 30 years, the other half of the `M' schedule properdes devolved upon the respondent-plaintiff who thus became the owner of the suit property. `M' schedule properties have been broken up to Schedule `A' to `K'. Properties mentioned in Schedule `A' was in occupation of one Chandra Bahadur tin 1970 as Adhiyar. Thereafter, Bir Bahadur Rai, appellant who ` `, is deft;ndant rio. 1 in the Suit has been inducted in those properties by the respondent as Adhiyar under bin. Schedule `A' comprises three plots being Nos. 102 to 104. A house was existing in a portion of plot No.102 where the appellant was permitted to reside. The said house was, after sometime, demolished by the appellant who constructed a new house thereon. Respondent-plaintiff objected to it. The appellant also committed theft of cardanom fruits. Respondent drew the attention of the •..,:'\ .--` HEZ= RE e! Panchayat -land throuch their intervention the matter was settled. Ultimately, the appellant filed a petition, being Misc. Case No. 78 of 1981, before the Prescribed Authority. As tits decision on 9th February, 1984 went against the respondent, he filed wit petition No. 13 of 1984 wliich was disposed of on 16th March 1985 with the observation that since } the appellant was in possession of the same land the respondent should not dispossess him without taking recourse to the procedure established by law. The respondent filed the present suit in the year 1985 praying for a decree for declaration of his right title and interest over `M' Schedule of lands, for permanent injunction against Bin Baliadur Rai appellanrfu6fen'dant No. 1 restraining bin from disturbing peaceful possession of the respondent/plaintiff over Schedule `A' lands and also for recovery of possession of Schedule A lands by evicting the appellant/defendant No. 1 therefrom. The schedule `A' land set out in the plaint reads as follows: - "All that entire plots of land comprising of dy and cardamom fields situated at Block Uttar Rigu, Elaka RIgu District East :.-i::-.-,...--. Sikkim falling under Khasra No: 84 Plot Nos: 102, 103 and 104 measuring about 0.4200, 0.1860 and 2.600 hectors respectively which fall within the same compound are butted and bounded as follows: - i North: -Boundary of Plot Nos 105 and 108 of tlris plaintiff. South: -Boundary of plot'No: 101 of the plaintiff. East : -Boundary of plot No: 108 of the plaintiff. West: - Boundary of plot No: 105 of the.plaintiff. " The house is situated inside plot No.102 to its South comer. (Thehouseandthelandinthescheduleisshownbyredlining). The `M' schedule land as set out in the plaint reads as follows: - "AIl that entire plots of lands cQmprising of dry and cardanom fields situated at Block Uttar Rigu, Elakha, Rigu Dist: Gangtok, popularly known as "Sudamlakha" under Khasara No: 84, PlotNos: 101,102, 103,104, 105 and 108 measuring `4.4760, .4200, .1860, .2600, 8.3040 and 4.9340 Hectors respectively; which as per survey operation of 1950-52 falls under masara No: 59, plot Nos: 18, 22, 23, 24 and 24/520 measuring 20.38, 2.16, 5.00, 16.70 and 2.28 acres respectively. (Schedule A to K lands fall inside tlris Schedule M land)." 3. The case ofBir Bahadur Rai, appellant-defendant No.1, as made out in the witten statement, is denial of respondenvplaintiff, Aringdas Rai's rigiv title and interest over any of the properties mentioned in I Schedule `A' or `M'. According to appellant, the entire property belonged to Rajman Rai who had a son Daulat, besides the other son Padam Dhoj and daughter Dhanrupi. The appellant was the son of Daulat and Asar Baladur Rai was the son of Dhanrupi Ralni. Daulat died sometime in 1950 leaving the appellant/defendant No. 1 as sole heir. Thouch the appellant/defendant No. 1 admitted that Padan Dhoj became traceless since 1955, he asserted that while Dhanrup died in 1970, she had a surviving son Asser Baliadur. The appellant/defendant No. 1 further clained that he became the sole owner over the properties mentioned in the schedule of the written statement. The appellant- defendant No. 1 denies the clain of the respondent-plaintiff and other defendants that defendant Nos. 2 to 10 are Adhiyars with respect to the properties mentioned in Schedule `8' to `J'. The appellant/defendant No. 1 made out a counter claim over an the properties besides the properties described in Schedule-A of the plaint. But he did not stick to the counter \claim. \.` .- S 4. M. N. a. Kharga, leaned Counsel appearing for the appellant argued that respondent-plaintiff had claimed the suit land as his own being the properties of his grand father. But subsequently respondent- plaintiff has come forward with the case that the same property belongs to Padam Dhoj and being the nearest relation he is entitled to succeed to the sane. The suit was remanded for linrited purpose to ascertain about the relationship of Padam Dhoj, Charandas and Aringdas. To deterfue the linrited question, the respondent examined two winesses Jardas Rai and Birkhanan Das who are his relatives and respondent-plaintiff produced a document dated 15th February 1966 which is exhibit P.P.1. PW Jardas admits in his cross examination that it is true that there is no thumb inpression of Dhanrupi Raini on exhibit P.P.1. He also stated that the existence of erfubit P.P.-1 was not mentioned in the document of 8th August 1983 for mutation and he had not signed the said document as a member of the Panchayat. Birkhanan Das Rai is the next witless. Witness Birkhaman Das is the father-in-law of the respondent-plaintiff who married his only dauchter. He is not a signatory to the P.P.1. He \C+-- does not know the name of Padam Dhoj and mentions bin as Padam Das. M. Kharga argued that the genuineness of the document exhibit P.P.1 is doubtful. It does not bear the thumb inpression of the executant. It is also not possible`how a person who knows about the value of old documents will keep such an inportant document about the property in negligent marmer. He had kept all the rent receipts properly except this vital document. The other independent living persons who are still alive have not been exarined. M. Kharga argues that the appellant, as per the evidence of the respondent-plaintiff and others, was inducted as an adhiyar. The khatian parcha of padan Dhoj in the remarks colunm shows the name of appellant as kabjadar in respect iof plot Nos.102 and 108. Tne survey took place in 1975-78 when his possession has been recorded for seven years. The suit was filed in 1985 and this covers the prescribed period of 12 years. The appellant has perfected his richt in respect these two plots which will be evideint from the documents filed by the respondent-plaintiff hinself. The genuineness or otherwise of the document exhibit P.P.1 is doubtful for other reasons and the appellant- \\\-... i I defendant doubts that it has been subsequently made out after the case was remanded back to the trial Court for finding this limited question of relationship. The relationship of the respondent-plaintiff with Charandas and Padam Dhoj has also been made out in this document and has connected the same with the respondent-plaintiff. If such a document was made and was in existence previously then it oucht to have come out in the pleadings or in the evidence of the respondent-plaintiff earhier. It was the case of the respondent-plaintiff previously that the land belonged to bin and that it was wrongly recorded in 1975 survey in the name of Padam Dhoj Rat. It was in the possession of Dhan Rupi Raini. After the death Qf Dhan Rupi Raini the panchayat and the elders gave the said property to the respondent-plaintiff. But the case now made out is completely different and therefore, no reliance should be placed upon the document exhibit P.P.1 : 5. M. A.Moulik, learned Counsel appearing for the respondent- plaintiff has drawn attention of the Court to paragraph 5 of the Judgment .-:_:- a 10 passed in Civil Review Application No. 5 of 1998 which reads as follows:- "5. So far as the claim of Defendant No.1 is concerned regarding ownership over the land in question, it has been held in, the judgment that the Defendant No.1 £uled to establish that. That becomes a closed chapter which would not be reopened before the trial Court." After the case was remanded back to the trial Court for hearing on the aforesaid question regarding relationship of Chandradas Rat with Rajamn Raf; the respondent-plaintiff led evidence in the case on 27th September 1999. The appellant-defendant No.I had to lead evidence on 7th october ` 1999. However, on 7th October 1999 the appellant-defendant No. 1 represented by a lawyer could not produce his witnesses on his behalf. On the other hand, the appellant-defendant No.1 submitted that he was unable to bring his witness as the witness was not in a condition to depose due to illness. M. Moulik submitted that one witness was lying ill, there was no bar for the appellant-defendant to produce another witness. However, he was given tine till llth October 1999 to produce witness to support his defence. On llth October 1999 the appellant-defendant No.1 tr © 11 neither produced witness .nor he had made any prayer for examination of witness on conmission or any prayer for summoning any witness or prayer for a date to exarie any witness was made by the appellant- defendant and it cannot be said that the appeuant-defendant No.1 was not given sufficient opportunity to lead evidence in support of his case. Mr. Moulikaguedthatafterconsideringtheevidenceonrecordandkeepingin Hind the Judgment of the trial Gout passed in Civil 1St Appeal No. 1 of 1998 and the Judgment of Civil Review Application No. 5 of 1998, the Civil Judge had considered the statements of the witnesses namely Jardas Rai and Birkhanan Das. After duly consideing the statements on oath of these two witnesses, the Civil Judge delivered Judgment on 30th October 1999 and had come to definite fading that Charon Das was the brother and co-sharer of Rajman Rai. M. Moulik argued that appellant in his appeal did not urge any point indicating fault with the judgment and orders of the Civil Judge. M Moulik has drawn attention of the Court to the paragraph 34 of the judgment dated 30th October 1999 which reads as follows :- •-If 12 "34. Nevertheless, it must be noted that PW-2, has also deposed that the defendant No.1 is also related to him being the husband of PW-2's grand daugiver. This fact in my opinion mititates the possibility of PW-2 being an interested party and hence PW-2 can thus be relied upon by this Court as an independent witness." M. Maulik argues that the trial Court observed that witness Jardas Rai is well conversant with the family ties of the' parties. According to witness Jardas Rai, he knows the sons of Rikidhan Rai, who are Charandas Rai and Rajman Rai and who have already died. Rajman Rai has one son and one dauchter, Padamdhoj and Dhan Rupi Rai. The trial Court has observed that the relationship between Charandas Rai and Rajman Rai as brothers has been established. Under cross-examination this fact has not been controverted. The dial Cout at paragraph 38 of the Judgment has given fading that the respondent-plaintiff has been able to establish the fact that RIki Dhan Rai has two sons Charandas Rat and Rajman Rai. At paragraph 41, the trial Court has come to conclusion that the issue, namely the relationship between Charandas Rai and Rajman Rai as brothers and co-sharer has been proved and established in favour of the \ ,-.` 13 plaintiff. Winess Jardas Rai has categorically stated that he knows the sons of Rikidhan Rai who are Charandas Rai and Rajman Rai, both of whom are no more. He has further established that Charandas Rai has one son, who is the respondent-plaintiff. Rajman Rai has one son and one dauchter. He further stated that Bir Bahadur Rai, appellant-defendant No.1 has migrated from Nepal. This witless does not know any one, n.aned Lakhman Rai and Daulat Rai. In cross-examination, nothing could be brougiv out by the appellant-defendant No.1 to support that witness Jardas Rat is an interested witness and that he has not broucht out the tnrfu in his evidence. In cross-exarination, only some formal suggestion u has been given to this witness and the witness has just denied such suggestions. Except such negative suggestion, no concrete evid;nee has come forward from the witness to support the case of the appellant. M.Moulik argued that the relationship between Charandas Rat- ,and Rajman Rai has also been proved by the respondent-plaintiff. The relevant portion of the deposition of Aringdas Rai reads as fonows :- .`:.,,. 14 "The suit land originally belonged to late Rikidhan Rai who obtained the law from the Maharaja of Sikkin about 100 years ago. Late RIkidhan had two sons namely Charandas Rai and Rajman Rai. I am the only tiving son of Charandas Rai. Rajman Rai had only one son Padamdhoj Rai who is traceless for the last ab.out 32 years and he has no issue as he was not even married. Rajman had only one dauchter namely Dhanrupi Raini. Dhanrupi died in the year 1971 without being marred and she had led the life of a Sannyashi. After the death of my grand- father the suit land devolt upon my father Charandas Rai he being the eldest son. Rajman died expired before 10 years of the death of my father Charandas Rai. My father died in the year 1943. I have been enjoying the suit land fi-om my very child hood along with my father, uncle and grandfather. The suit land according to the 1951 record stands recorded in my name." Mr. Moulik has drawn attention of the Court to the relevant portion of the deposition of the plaintiff as PW which reads as follows :- "I enjoyed the suit lands even during the life time of Padamdhoj Rat and Dhanrupi Raini. I was in joint farfuly with Padandhoj Rai and as such I `was in possession of the suit land as owner with them. On the death of Dhanrupi Raini I performed all her death rites." M. Moulik argued that the deposition of PW Sangay Tshering will show that the relationship between Charandas Rai and Rajman Rai has also been proved by the evidence of the PW Sangay Tshering alid relevant portion reads as follows :- "I know Padamdoj Rai who happened to be the son of Rajman Rai. Charandas Rai was the father of Aringdas Rai. Charan Das Rai and Rajman Rai are brothers. I know both Charandas and Rajman. Both of them are dead. Charandas Rai is the elder brother. Charan Das Rai and the Rajman are the full blood brothers. Padamdhoj had one sister named Dhanrupi who is also dead. Whereabout of Padamdhoj is not known since about 30/35 years. Both Padamdhoj and his sister were urmarried." M.Moulik argued that Aringdas Rai is a "BANTWA" Rai and his grandfather RIkidhan Rai is also a "BANTWA" Rai whereas Bir Bahadur is a "KULUNG" Rai. This statement of PW-3 Ram Karan Das Rai was not controverted by app61lant-defendant No.1. Therefore, the relationship of Aringdas Rai son of Charandas Rai with another son of RIkidhan Rai namely Rajman Rai is established beyond reasonable doubt. M. Moulik has argued that the khatiyan parcha relating to the suit land shows the name of the respondent-plaintiff as the owner. The khatiyan parcha shows that the respondent-plaintiff has all along paid rent relating to the suit land. Document signed by the respondent- wh, 16 plaintiff and the appellant-defendant No.1 shows that the appellant- defendant No. 1 is an Adhyar under the respondent-plaintiff. Exhibit P-12 is an application by the appellant-defendant No.1 to the Chief Minister. In this application he never claimed hinself as the relative of Padandhoj .Rai or that of Dhanrupi Raini. On the other hand, the respondent-plaintiff Aring Das Rai has kept him in his sister's land. The said sister is none but Dhanrupi Raini, the dauchter of Rajman Rai. Mr. Moulik argued that at no point of time, in none of the litigations between the respondent-plaintiff and the appellant-defendant No.1, the appellant-defendant No.1 had ever claimed as the relative of late Padamdhoj Rai or that of Dhalirupi Raini. Mr. Moulik argued that in paragraph 13 of the Judgment passed in Civil lst Appeal No.1 of 1998, the H8h Cout observed that the appellant-defendant No.1 never claimed ownership over any portion of the suit land by virtue of inheritance or by way of adverse possession. I ® 17 6. Vide judgment dated 30th January 1997 passed by the civil Judge, East in Civil Suit No.14 of 1985, the case of Aringdas Rai, the respondent-plaintiff was dismissed. Thereafter, the respondent-plaintiff preferred an appeal before the ffich Court. Vide judgment dated 7th September 1998 passed in Civil First Appeal No.1 of 1998 (Aringdas Rat v. Bir Bahadur Rai), the Ifi8h Court allowed the appeal and the judgment and decree passed by the trial court was set aside and the case was remanded to the ulal court for deciding the issue whether Charan Das was the brother and co-sharer of Rajman Rai. For this purpose, the Hch Cout also held that the parties should be given opportunity to adduce further evidence. The operative part of the Judgment dated 7th September 1998 is reproduced below :- "20. Coming down to the case of plaintiffrfumust be noted that in the instant case he has first to establish his title over the property which is possible only if he can tie up Chandradas with Rajman as clained by bin in his plaint and evidence; but the evidence in this respect is not thorouchly independent and trustworthy. The Plaintiff s case would have failed for want of such evidence but that would keep the dispute between the paties alive which is not desirable. The Plaintiff should be given a chance to prove this \"^`.,.. 18 aspect.of the case before the trial Court with rigiv to the defence to try to disprove the claim. It is, hence, ORDERED i-__ that the Appeal be and the same is allowed on contest without costs. The judgment and decree Passed by the leaned trial Court is set aside and the case is remanded back to the dial Court for deciding the issue whether Chandradas was the brother and cosharer of Rajman. For that purpose the parties should be given opportunity to adduce further evidence. After coming to a decision on the aforesaid point and in consideration of the observations made in the body of this judgment regarding other points, the leaned trial Court would finally decide the case." Thereafter, Aringdas Rai, the appellant in Civil 1st Appeal No. 1 of 1998 and respondent herein filed a Review application being Civil Review Application No.5 of 1998 with the following prayers :- "In the circumstances the petitioner most humbly prays that Your Lordship may be graciously pleased enouch to consider this review petition and review the judgment and orders passed on 7.9.98 in Civil Appeal No: 1 of 1998 and be further pleased to pass the following orders to the effect :- a) to consider and hold that on the basis of the evidence on record both oral and documentary it has been proved and established that Charandas Rai was the full brother of Rajman Rai and accordingly Charandas Rai was a co-sharer W 19 with Rajman Rai in respect of the properties left by Rikidhan Rat the father of Charandas Rai and Rajman Rai; b) to Consider and hold and declare that the petitioner plaintiff has been able to prove that even independently of the relationship between Charandas Raf and Rajman Rat, he is the owner of 8 annas share in the suit properties and he is entitled to get declaration to that effect. c) to consider and hold that the petitioner/plaintiff has proved that he has right, title and interest on the entire suit property and he is entitled to get a decree in the suit to that effect; d) to consider and hold and pass a decree in the suit for the reliefs as prayed for by the petitioner/plaintiff in the suit; e) to pass any other order/orders which the Hon'ble court may deem fit and proper in this case in the interest of justice." in Civil Review Application No. 5 of 1998 this Court Observed that while dealing with the judgment of the dial Court, it never rejected the evidence either oral or documentary available within the record to establish the plaintiff s interest over the suit property. The only deficiency as noted by this Court was that a little more evidence.on behalf of the. plaintiff was/is necessary to prove the plaintiffs case conclusively. That is the reason for which the case was remanded to the trial cout` for W`' 20 giving opporfurity to the plaintiff. In paragraph 5 of the judgment passed in the Review application, this Cout held so far as the claim of the I defendant No. 1 is concerned regarding ownership over the land in question, it has been held in the judgement that the defendant No. 1 fuled to establisli that. That becomes a closed chapter which would not be re- opened before the thal court. Paragraphs 2 to 7 of the Judgment dated 7th November 1998 passed by this Cout in Civil Review Application No. 5 of1998(AringdasRal,appellant-petitioner-vs-BirBaliadurRai&Ors.) are reproduced below :- "2. There was a dispute between the Appellantffetitioner and the Respondent No.1. ` Traversing throuch various litigations the Appellant ultinately cane to this Gout with Civil Appeal No.1 of 98 which was disposed of by this Cout on 07.09.1998 by an orderofremandtothelowerCoutforalimitedpulpose. 3. The Appenant has come up with this Review petition with the contention that the ounership of atleast. 8 anas sliare of Charandas in the suit properties should have been specifically declared in the Appellate Cout judgment. It has firfuer been contended that fi.om the evidence on record the Appellate Coot shouldhaveheldthatCharandaswasthebrotherofRajman. 4. It is the contention of the Petitioner that there are sufficient materials on record to hold that Charandas and Rajman 0 \i\/.' © I I I 21 were two brothers inheriting equal interest over the suit properties from common ancestor. In the judgment it has been cleady indicated that it is the Plaintiff (Appellant here) who is to prove his title over. the suit properties. It has been observed in the judgment that the evidence on record are not sufficient to come to a definite conclusion. This Court while dealing