RAM NARESH GIRI Vs. KRISHNAWATI DEVI

JUDGEMENT

(1.) Aggrieved with the Judgment in Title Suit No.02 of 2016, dtd. 31/12/2018, of the Learned District Judge, Special Division-I, Sikkim at Gangtok, whereby the Learned Trial Court dismissed the Appellant's Suit, the Appellant assails it herein.

(2.) (i) Learned Counsel for the Appellant advanced the argument that undisputedly the Appellant's father Thakur Giri had three sons, the Appellant being his second son. Suresh Giri the eldest, is untraceable since 1996 and is the husband of Respondent No.1. She is the mother of Respondents No.2 and 3. Respondent No.4 the third son, suffered from mental illness from the year 2000 to 2005. That, in 1998, the Appellant's father was allotted a plot of land measuring 12 feet x 10 feet vide Exhibit 1, by the Government of Sikkim wherein the Appellant constructed a four storeyed RCC building with his finances to the exclusion of his father and brothers. That, the dispute has arisen on account of inequitable distribution of the First Floor by their father, wherein two shops are being run by Respondents No.2 and 4 but a portion thereof was not allotted to the Appellant who claims one-third share in it. It was urged that in the alternative, the Respondents are liable to compensate him monetarily for his financial investment in the construction. That, the Appellant furnished sufficient evidence before the Learned Trial Court to establish his case, which was however disregarded. Even assuming that the evidence was inadequate, by right he was entitled to one-third share in his father's property, which was denied to him. The Learned Trial Court reasoned that Exhibit A said to be a "Banda Patra" executed by the Appellant's father in their presence, had distributed the property at his discretion. That, the Learned Trial Court failed to appreciate that Exhibit A was executed by the "Sikkim Bihari Jagran Manch, Branch Singtam, East Sikkim" and not executed between the father and his sons only, dividing the property in metes and bounds. While drawing the attention of this Court to the determination of the Issues framed, it was contended that Issues No.3 and 4 were erroneously concluded observing that the Appellant was not entitled to a share of the Schedule "B" property in the Schedule "A" building, the parties having been given their respective shares therein. That, the Learned Trial Court failed to appreciate that Thakur Giri, in his evidence Exhibit G, before the Sub Divisional Magistrate, East District at Gangtok, had stated clearly that he would draw up a "Will" later for distribution of the property and Exhibit A was only a stop gap arrangement for the purposes of residence and business not ownership, therefore the question of the Appellant having been allotted his respective share did not arise. That, although the Learned Trial Court relied on Exhibit G, it chose to ignore the deposition with regard to legal distribution of the said property.

(3.) Repelling the arguments of the Appellant, Learned Counsel for the Respondents submitted that in Prayer "a)" of the Plaint, he seeks one third-share on the First Floor of the building to be given to him for his absolute occupation and use, while in Prayer "b)," he seeks an order in his favour directing the Respondents to pay him monetary compensation for the investment he had made in the building. That, the Prayers are contradictory for the reason that either he ought to claim one-third share in the property, or monetary compensation for the investment made by him. Further, till his father was alive, he made no claims of financial investment, such claims have arisen post his father's demise in 2013, the Suit having been filed on 15/1/2016, sans explanation for the delayed filing. That, the bone of contention is Exhibit A, dtd. 26/3/2006 but this document, with clarity, indicates division of the self-acquired property of Thakur Giri equally between his three sons. Paragraph "3." of Exhibit A categorically indicates that although two shops were given to his two sons, one Paan Gomti (betel shop) was given to the Appellant, thereby providing all of them with business avenues. Rather fairly, Thakur Giri had elucidated in Exhibit A that should the Paan Gomti come to be closed by the Government then the two shops in the First Floor would be divided into three and the Appellant given one of the shops. Exhibit A was duly signed by Thakur Giri and the Appellant's brothers Suresh Giri and the Respondent No.4. Despite his presence at the meeting, the Appellant refused to sign on the document which, in any event, is of no consequence since his father had chosen to distribute his self-acquired property as he saw best. If the Appellant was disgruntled by such distribution, he ought to have assailed it during the lifetime of his father apart from the fact that all the sons, including the Appellant, acted upon the contents of Exhibit A and took possession of the respective floors allotted to them in consonance with Exhibit A. That, there is no denial by the Appellant that Schedule "A" was a self-acquired property neither was any evidence furnished to prove the contrary. The vehement claim that the Appellant had incurred financial expenditure in the construction, failed to find support in the evidence brought forth by him as all such vouchers pertained to the year 2006, whereas the Schedule "A" premises were concededly completed in the year 2004, fortified by the fact that no documentary evidence emanated to establish that he had any source of income at the relevant time. In light of the arguments canvassed, the Judgment of the Learned Trial Court warrants no interference and the Appeal deserves a dismissal.