NIL KUMAR DAHAL Vs. INDIRA DAHAL

JUDGEMENT

(1.) The Appellants were the Plaintiffs before the learned trial Court, in Title Suit No.08 of 2011 (Nil Kumar Dahal and Another v. Indira Dahal and Others), a Suit for Declaration, Recovery of Possession, Injunction and other Consequential Reliefs, against the Respondents No.1 to 4 herein, who were the Defendants No.1 to 4 in the said Title Suit. The learned trial Court on consideration of the evidence and all materials on record dismissed the Suit of the Appellants, by the impugned Judgment, dated 26.07.2017. Dissatisfied thereof this Appeal has arisen.

(2.) Parties shall hereinafter be referred to in their order of appearance before the learned trial Court.

(3.) The Plaintiffs are blood brothers being the sons of one Devi Prasad Dahal. The Defendant No.1 is their step mother and the Defendant No.4 is their niece, being the daughter of their deceased step brother, Bal Krishna Dahal, the son of Defendant No.1 and the Plaintiffs' father. Defendant No.4 is represented by her guardian Devi Kala Sharma. Defendants No.2 and 3 are Government officials inter alia concerned with registration of land. The Plaintiffs claim to be governed by the Mitakshara School of Hindu Law. The dispute between the parties pivots around the 'jiwni' land described in the Schedule to the Plaint, kept aside by their late father from the ancestral properties, for his upkeep and sustenance during his lifetime at Raley Block, East Sikkim, after partitioning the ancestral properties amongst his sons. By the 'Banda Patra' ('Partition Deed'), Exhibit 'A,' dated 17.05.1985, their father devised dual conditions for the 'jiwni' land to be passed on to his sons i.e. 'father's 'jiwni' share would go to the son who would look after and perform death rites.' On his passing on 23.09.2001, the Plaintiffs and the father of the Defendant No.4, each laid claims to the said 'jiwni' land on grounds that each of them fulfilled the conditions laid out in Exhibit 'A.' Defendant No.1, for her part, while denying governance by the Mitakshara School of Hindu Law, claims the property on grounds that she has been in unencumbered physical possession of the property since the execution of Exhibit 'A' and exercising all rights over it as its owner, sans interference from any quarter.