LHAKILA TONGDEN LEPCHA Vs. PASSANG TONGDEN LEPCHA

JUDGEMENT

(1.) THIS Regular First Appeal arises out of Judgment and Decree dated 28 -02 -2011 passed in Civil Suit No. 5 of 2010 by the learned District Judge, Special Division II, East Sikkim at Gangtok, dismissing the suit filed by the plaintiffs -appellants herein for declaration, recovery of possession and consequential reliefs.

(2.) THE brief and relevant facts leading to the filing of the present appeal are recapitulated hereinafter.

(3.) IT is the common case of the parties that the suit property was owned by late Athup Tshering Lepcha, father of Late Nochi Tongden Lepcha, father of Defendant and Late Rinzing Tongden Lepcha, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 and 3. The plaintiffs' case, as projected in the suit, is that late Athup Tshering Lepcha, who was the absolute owner of the cardamom field bearing plot Nos. 71 and 76, during his lifetime gifted the suit land to his son Rinzing Tongden Lepcha by way of an oral gift as was prevalent during that period. Rinzing Tongden Lepcha, thus became the absolute owner of the property i.e. land measuring 5.2300 Hectares. It is further stated that Rinzing Tongden Lepcha died on 09 -01 - 1996 leaving behind the plaintiffs as his legal heirs and successors. It is further alleged that his name is still recorded in the records of rights maintained in the office of the District Collector, Mangan, North Sikkim. Two plots, bearing plot Nos. 71 and 76 later came to be recorded into one plot bearing plot No. 80 in the revenue records. The plaintiffs' <IMG>JUDGEMENT_40_AIR(SIKK)_2013.jpg</IMG> further assertion is that late Rinzing Tongden Lepcha out of love and affection had left the suit land in the care of his brother Nochi Tongden Lepcha who predeceased Rinzing Tongden Lepcha and after the death of Nochi Tongden Lepcha his son Passang Tongden Lepcha, i.e. the defendant, became the caretaker of the suit land on behalf of the plaintiffs. It is further stated that plaintiff No. 3 for and on behalf of all the plaintiffs filed an application dated 07 -06 -2002 before the District Collector, North for the mutation of the suit land in the name of the plaintiffs for which a notice was issued inviting objections from the public. The defendant objected to the mutation claiming the entire suit land by virtue of a Partition Deed dated 10 -06 -1971. The S.D.M., Mangan after hearing both the parties advised them to approach the appropriate Court for settlement of the title over the suit property. It is under these circumstances, the plaintiffs filed the present suit.