KHARGA BAHADUR RIZAL Vs. SURAJ RAI

JUDGEMENT

(1.) The appellant who was the sole defendant in Title Suit No. 07 of 2014 has preferred the present Regular First Appeal No. 03 of 2018 against the impugned judgment and decree dated 30.06.2018 passed by the learned District Judge, Special Division-II, East Sikkim at Gangtok (the learned District Judge) decreeing the suit in favour of the respondent who was the original plaintiff.

(2.) The suit for declaration of title, possession, injunction and other consequential reliefs was filed by the plaintiff in the year 2014. The plaintiff's case was that he was the only son of late Krishna Bir Rai and late Santa Maya Rai of Sang Chalamthang, East Sikkim. Late Krishna Bir Rai expired on 10.01.1982 and his mother late Santa Maya Rai on 13.08.2013. The plaintiff's paternal grandfather late Dhan Bahadur Rai had three sons and the plaintiff's father was the eldest. Late Dhan Bahadur Rai owned landed properties including one piece of land measuring 1.900 hectares at Sang Chalamthang Block. Before his death, Dhan Bahadur Rai partitioned his properties in Sikkim amongst his three sons and in such partition, the land measuring 1.900 hectares at Sang Chalamthang Block had been given to late Krishna Bir Rai. The plaintiff further asserted that in the manual land record of Sang Chalamthang Block, the land measuring 1.900 hectares stood recorded in the name of his father as plot nos. 46, 47, 49, 51, 54, 61 and 62 measuring .2780, .0540, .3620, .3200, .0560, .7940 and .0360 hectares, respectively under "Khatiyan" no. 28 of Chalamthang Block. After the demise of his father in 1982 the plaintiff and his mother had numerous problems including monetary. Due to this, the plaintiff had to abandon his studies after class VII and leave for Assam in 1996 in search of a job. In 2002, the plaintiff returned to Sikkim as his mother's health was deteriorating. After staying home for some months in the year 2002, the plaintiff left for North Sikkim in search of a job. From middle of 2002 to October 2011, the plaintiff worked hard doing jobs which came his way including roadside labour at various far-flung areas in North Sikkim. With his small savings, he took his mother to doctors for her treatment whenever he was allowed to do so by his employers. The plaintiff asserted that his mother was an illiterate housewife who remained a recluse and bedridden most of the time after the demise of her husband. Sometime in the month of December 2005, late Santa Maya Rai called the plaintiff and gave him one "Sifaris Patra" (recommendation letter) and asked him to investigate it. The plaintiff noticed that it was written on 27.10.2004 by the defendant. He had recommended for transfer of title of the land situated below his dry field and bamboo field as well as the government canal at Chalamthang Block to the name of the mother of plaintiff as it had, as per defendant, got wrongly recorded in his name. After going through the "Sifaris Patra" the plaintiff tried to contact the defendant several times, but the defendant avoided him. As the plaintiff was hard pressed for time and preoccupied with his job in remote areas of North Sikkim and in treating his ailing mother, he could not pursue on the said "Sifaris Patra". He left it to be dealt in the future since the possession of the land was always with him and his mother and its "Parcha Khatiyan" in the name of his deceased father. In 2010, when the plaintiff learnt that the Office of the East District Collectorate was issuing computerized "Parcha Khatiyan" to old landowners of Chalamthang Block, he too made an application for it, which was issued on 21.11.2011. It was then when he noticed that only his ancestral lands covered by plot nos. 49, 51 and 54 measuring .3620, .3200 and .0560 hectares were shown in the name of his late father. Out of .7940 hectares of plot no.61 only .4600 hectares was shown recorded. In so far as the balance of the ancestral land was concerned, nothing was mentioned. The plaintiff thus made inquiries from the panchayat, village level office, East District Collectorate and the revenue department of the Government of Sikkim. It was at this time that the plaintiff learnt that the defendant had, by misrepresentation and fraud committed on the concerned authorities, taking undue advantage of his ailing mother and his absence from his home, surreptitiously transferred title of plot no. 49, 51 and 54 measuring .3620, .3200 and .0540 hectares in his own name without the knowledge and consent of the plaintiff although he was aware that it was his ancestral land. The plaintiff also came to learn that the remaining .0020 hectares of plot no.54 was acquired by the government for construction of road in 1995, 1996 and the compensation was paid to the plaintiff through his mother. He also learnt that .3117 hectares of plot no.61 was transferred in the name of the plaintiff's mother without his consent and that plot was now recorded as plot no.61/487. Despite his best effort, the plaintiff could not find out where the remaining portion of .0233 hectares of plot no.61 had disappeared. The plaintiff thus approached the concerned panchayat and village level officer who summoned the defendant. The defendant appeared before the panchayat and village level officer on 19.06.2013 but he refused to part with the suit land on the ground that he had purchased it from his late mother for Rs.3000/- which she had earlier taken as a loan and not returned. The "panchayat" and village level officer directed the parties to approach the appropriate court. On 20.06.2013 the plaintiff submitted a written complaint to the District Magistrate. The District Magistrate sent it to the subordinate Sub-Divisional Magistrate to register a miscellaneous case in his court and disposed the same on 31.07.2013 directing them to either settle the matter amicably or approach the competent court. After this the plaintiff's mother became critical and finally expired on 13.08.2013. The plaintiff made efforts to settle the matter with the defendant but failed. On advice of an Advocate, he obtained a search report (exhibit 10) vide an application dated 26.11.2013 after which it was confirmed that the defendant had wrongly transferred the suit land in his name behind the back of the plaintiff.

(3.) It is the plaintiff's case that as the suit land is his ancestral property the transfer of title of the suit land by the defendant vide O.O. No. 11528/ Chalamthang/Block/DC dated 11.02.2011 is illegal, obtained by misrepresentation and fraud without the plaintiff's knowledge and consent and liable to be quashed. It is the further case of the plaintiff that even the plaintiff's mother did not have any legal right to execute the sale deed in respect of suit land without the written permission of the plaintiff. The plaintiff avers that since 2011 the defendant has been in adverse possession of the suit land which he is refusing to handover to the plaintiff although the land rent is still being paid by the plaintiff. The plaintiff avers that the cause of action for the suit arose on 21.11.2011 when he received the computerized "Parcha Khatiyan" and learnt for the first time that the suit land was not recorded in his name or in the name of his late father; on 31.07.2013 when the Sub-Divisional Magistrate directed the plaintiff to move the Civil Court; on 21.12.2013 when it was confirmed to the plaintiff through the hand written search report that the title of suit land was transferred to the defendant vide Office Order No. 11528/Chalamthang/Block/DCE/dated 11.02.2011. According to the plaintiff the cause of action continues. The plaintiff, therefore, prays for the following reliefs: