DHAN BAHADUR GURUNG Vs. PAHALMAN GURUNG

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 29-9-2001 by the learned District Judge, South & West Districts, Sikkim in Civil Suit No. 1 of 1998 dismissing the suit brought by plaintiff/appellant for declaration that he is the owner in respect of half share in cardamom fields bearing plot No. 489 measuring 3980 hectare and plot No. 505 measuring 6080 hectare situated at Borong Block, South Sikkim as per the boundaries given in the schedule to the plaint, for recovery of possession of the suit land, for a declaration that the sale deed executed by respondent No.1 in favour of respondent No. 2 in respect of the suit land registered on 15 4-1994 is null and void and for correction in the records of rights.

(2.) Respondent No.1 Pahalman Gurung was defendant No. 1 and respondent No. 2 Master Navin Gurung was defendant No. 2 in the Civil Suit before the learned trial Judge.

(3.) Defendant No.1, Pahalman Gurung is the uncle of the plaintiff/appellant Dhan Bahadur Gurung. Bhim Bahadur Gurung, father of the plaintiff, was the younger brother of defendant No.1. Bhim Bahadur Gurung died in the year 1988 leaving the plaintiff as his sole male survivor. Bhim Bahadur Gurung and defendant No. 1 were the sons of late Harka Bahadur Gurung who died in or around the year 1983, Though Harka Bahadur Gurung had other sons also, yet at present the plaintiff and defendant No.1 are his only living male descendants. Harka Bahadur Gurung was admittedly the exclusive owner of the disputed plots. The plaintiff has claimed that he acquired rights and interests in the properties left by Harka Bahadur Gurung through birth and as such he has become the joint owner of all the properties with defendant No.1, as all the properties left by Harka Bahadur Gurung were coparcenary properties. The plaintiff further alleged that the properties were recorded in the name of Harka Bahadur Gurung at the time of his death in the year 1983 and there has been no partition of the coparcenary properties even thereafter either between defendent No.1 and father of the plaintiff or defendant No.1 and the plaintiff. Further, he stated that he came to learn in the later part of 1996 that defendant No.1 had executed a sale deed in respect of the suit land in favour of respondent No.2 in the year 1992 which was registered on 15-4-1994 in the office of the Sub-Registrar, Ravangla Sub-Division, South Sikkim. According to the plaintiff, the sale in respect of the suit land by defendant No.1 was without his knowledge and consent and the alienation was void in its entirety. Furthermore, the plaintiff alleged that in order to execute the sale deed defendant No. 1 illegally and surreptitiously managed to get recorded the suit land in his name in the year 1992 and after the registration of the sale deed the suit land was got recorded in the name of defendant No.2.