RAJU PRASAD Vs. RAM JANAM PRASAD

JUDGEMENT

(1.) This is a regular second appeal. Ram Janam Prasad, the respondent herein was the original plaintiff in Title Suit No. 10 of 2014 filed against Ram Das Prasad and the Secretary, Urban Development and Housing Department, Government of Sikkim, the original defendants. The suit was styled as suit for declaration, injunction and consequential reliefs. After the trial, the learned Trial Court decreed the suit vide judgment and order dated 31.08.2017. The learned Trial Court had framed two issues. The first issue was decided in favour of the plaintiff. The second issue was decided against the plaintiff. The findings of the learned Trial Court with regard to issue no.2 was not assailed by the plaintiff. The defendant no.1, however, assailed the judgment and decree passed by the learned Trial Court. In Title Appeal No. 13 of 2017 (Ram Das Prasad v. Ram Janam Prasad and Another), the learned District Judge, Special Division-I at Gangtok, East Sikkim (Appellate Court), examined the title appeal vis-à-vis issue no.1, framed by the learned Trial Judge which was: '(i) Whether the suit property measuring 40' x 15' was first occupied by the father of the plaintiff thereby giving the plaintiff a right over the suit property after the death of his father? (onus on plaintiff)'. The learned Appellate Court on examination of evidence led by the parties held that there was no doubt that the defendant no.1 who is and has to be regarded as the owner of the 'ekra' house comprised in the suit properties. It was held that the plaintiff had not put forward anything worthy which could establish that it was his late father who had constructed the 'ekra' house except making a bald claim. The learned Appellate Court opined that though the claim of the plaintiff and his witnesses were not categorically denied during cross-examination, the defendant no.1 had been denying this fact right since inception. In both his pleadings and his evidence on affidavit, he had also pleaded that it was him who had built the 'ekra' house which fact was neither denied nor cross-examined by the plaintiff. Thus, it was held that the plaintiff had failed to prove his case with positive evidence and instead sought to take advantage of the weakness of the defendant no.1 in not effectively controverting his bald claim. These findings against the plaintiff with regard to issue no.1 have not been assailed by the plaintiff. The learned Appellate Court, however, while examining the defendant no.1's title appeal limited to issue no.1 only, also examined a purported partition deed styled as 'ansha banda' (partition document) (Exhibit-1). He held that it could not qualify as a partition deed. However, the learned Appellate Court was of the opinion that it would however amount to an irrevocable licence in favour of the plaintiff by which he was given certain portions in the 'ekra' house by the defendant no.1. The learned Appellate Court opined that under section 52 of the Indian Easements Act, 1882, no particular form or considerations was required for such irrevocable licence; it can either be express or implied and it is also not required to be created by a registered document. He, thus, decided to grant the relief prayed for by the plaintiff in prayer (viii)(b) of his plaint. Accordingly, the relief was granted in favour of the plaintiff while examining the title appeal filed by the defendant no.1. Prayer (viii)(b) of the plaint reads thus;

(2.) This relief granted in favour of the plaintiff in the title appeal preferred by the defendant no.1, without any cross-appeal by the plaintiff, led to the filing of the present regular second appeal and the formulation of the substantial question of law as under:-

(3.) During the pendency of the regular second appeal, the original defendant no.1, i.e., Ram Das Prasad, expired and was substituted by his son Raju Prasad and daughter Asha Devi, as the present appellants.