TSHERLNG LAMA Vs. KUL BAHADUR CHHETRL

JUDGEMENT

(1.) This first appeal, filed by the appellant, Tshering Lama, defendant No. 1 in the Court below, is directed against the judgment and decree passed by the Id. District Judge, Special Division, Sikkim at Gangtok, in Civil Suit No. 15 of 1999, decreeing the suit, brought by the plaintiff Kul Bahadur ChhRtri, respondent No. 1 in this appeal, for declaration of right, title and interest over the landed property covered by old plot Nos. 101 and 102 of 1950-52 Survey Operation corresponding to Plot No. 106 of 1978- 80 Survey Operation situated at Chumbong Block, West Sikkim (in short suit property), in favour of the plaintiff-respondent No. 1 and against the appellant-defendant No.1, for recovery of possession thereof, for correction of record of rights in respect of plot No. 101 of 1950-52 Survey Operation and for a permanent injunction restraining the appellant-defendant from entering into and interfering with the peaceful possession of the plaintiff- respondant No. 1 after evicting the appellant- defendant No. 1 therefrom.

(2.) The plaintiff-respondent No. 1 filed Civil Suit No. 21 of 1991 on 21st December 1991 in the Court of the Id. District Judge, Sikkim against the appellant as defendant No. 1 and one Hasta Bahadur Chhetri, brother of plaintiff, who was impleaded as proforma defendant. Thereafter the Civil Suit was transferred from one Court to another and ultimately the Civil Suit was transferred to the Court of Id. District Judge, Special Division at Gangtok. The aforesaid Civil Suit No. 21 of 1991 was renumbered from time to time and lastly numbered as Civil Suit No. 15 of 1999.

(3.) The case of the plaintiff-respondent No. 1, Kul Bahadur Chhetri (in short respondent No. 1), as made out in the plaint, is that late Chandra Bahadur Chhetri, father of the respondent No. 1 and proforma respondent was the absolute owner of the suit property and after death of their father, respondent No. 1, proforma respondent and their mother inherited the entire moveable and immovable properties and they started enjoying the same. During the 1950-52 Survey Operation, the suit property was recorded in the name of Chandra Bahadur Chhetri, since deceased, father of the respondents. While the respondents have been enjoying the suit property, left behind by their father, peacefully and without any interruption till 1987, in the last week of December 1987, the appellant, all on a sudden started claiming the suit property as his own property and entered into the suit property during that period. Mother of the respondents being an old widow and the respondent No. 1 being a rustic villager and proforma respondent being an armed police constable posted at Pangthang, East Sikkim, could not offer resistance against the illegal acts of the appellant. The respondent No. 1 immediately rushed to Gangtok to inform the proforma respondent about the illegal acts of the appellant. The proforma respondent accordingly went to the appellant and asked him as to why he had started claiming the suit property as his own and entered into the suit property and the appellant informed that he is the absolute owner of the suit property. The matter was reported to the District Collector, West Sikkim, who immediately transferred the matter to the Court of Judicial Magistrate, West at Gyalshing, who came to the conclusion that the disputes involved are of civil nature and the respondents should approach Civil Court for remedy. The respondent No. 1 prayed for a decree for declaration of right, title and interest over the suit property, recovery of possession of the suit property after evicting the appellant-defendant, damages amounting to Rs. 21,000/- being the damages from 1978 to 1991, mesne profits, correction of record of right in respect of old plot No. 101, a decree for a permanent injunction restraining the appellant from entering into and interfering with the peaceful possession of the respondent No. 1 after evicting the appellant therefrom.