ROMA KANTI ALLEY Vs. TENZING CHOPEL BHUTIA

JUDGEMENT

(1.) This is a second appeal against the order dtd. 24/4/2023 passed by the learned Principal District Judge in Title Appeal No.02 of 2023 filed by the respondent (the defendant) against the appellant (the plaintiff). The impugned order set aside the ex-parte order dtd. 17/12/2022 granting ad interim injunction restraining the defendant from making any further construction on the suit land and permitted it as the plaintiff could be sufficiently compensated in terms of money if the suit decrees in her favour. The learned Principal District Judge also held that the irregularity of the plaintiff not having deposited the court fees as per the rules could not curtail the right of the plaintiff and set right the irregularity by directing the defendant to deposit the court fees.

(2.) The plaintiff had filed a suit for declaration, injunction, recovery of possession and other consequential relief against the defendant. It was the Plaintiff's case that her mother-in-law late Santa Maya Alley was the absolute owner of plot no.548 measuring an area of 0.56 acres situated near Church Road, DPH area, Gangtok (Schedule 'A' property). The plot was purchased by her from late Bandana Raini in the year 1953 and the Plaintiff was furnished the khasra khatiyan dtd. 17/1/2022 which reflects that the (Schedule 'A' property) is recorded in the name of late Santa Maya Alley.

(3.) It is the Plaintiff's case that she is now the head of the family and therefore, the suit has been filed with the consent of the other members of the family as a power of attorney holder.