PHURBA LEPCHA Vs. MORBU LAGAY KAZI

JUDGEMENT

(1.) The two points urged by the learned Advocate-General appearing for the appellant-defendant No.1 in this Second Appeal are, firstly, that both the Courts below were wrong in allowing the plaintiff-respondent to plead the case of acquisition of title in respect of the suit-land by adverse possession without pleading such a case in his plaint and, secondly, that at any rate, on the evidence on record, both the Courts below were also wrong in holding that the plaintiff has been able to prove such acquisition of title. To the first point first.

(2.) In his plaint, the plaintiff-respondent has no doubt alleged that he purchased the suit land from the defendant No. 2 in 1956. But the trial Court has found that the suit land did not belong to the defendant No. 2 but belonged to his deceased brother, who was the father of the appellant and devolved on the appellant after his father's death. The trial Court accordingly decided the Issues Nos. 1, 2, 3 and 5 against the plaintiff, all these Issues being related to the question as to whether the defendant No. 1 or the defendant No. 2 was the owner of the suit land and whether the plaintiff could and did purchase the suit land from the defendant No. 2. The plaintiff-respondent, who was also the respondent in First Appellate Court, challenged the findings on these issues before that Court and relying on the decision of this Court in Nauranglal v. Basant Kumari (AIR 1981 Sikkim 22), the First Appellate Court held that the respondent, having obtained the decree in his favour was entitled, under the provisions of Order 41, Rule 22, to challenge these findings in order to further support the decree in his favour, without preferring any cross-objection. But the First Appellate Court, however, held further that these Issues were rightly decided by the trial Court against the plaintiff-respondent. The learned Advocate appearing for the plaintiff-respondent before us has not, however, pressed these grounds any further and has not urged that these Issues also should have been decided in favour of the plaintiff-respondent and, that being so, these Issues need not detain us.

(3.) But the Issue No. 6, namely, "whether the plaintiff has perfected his title over the suit land by adverse possession?", was decided by the trial Court in favour of the plaintiff-respondent and the trial Court held that the plaintiff has acquired such title and the trial Court decreed the suit accordingly. The learned Advocate-General has contended that the trial Court went wrong in doing so, as no such case was pleaded by the plaintiff in his plaint and such a course could not but take the defendant No. 1 by surprise disabling him to effectively meet such a case and prejudicing him thereby.