KARMA DENKA BHUTIA Vs. SARKI LAMU

JUDGEMENT

(1.) Plaintiffs are the appellants in this second appeal which is directed against the decree dated 27-6-2003 of the learned District Judge, Special Division-I. Sikkim in Civil First Appeal No. 1 of 2002 who has dismissed the suit by reversing the decree dated 28-2-2001 of the Civil Judge (East) at Gangtok in Civil Suit No. 31 of 1997.

(2.) The appellants instituted the suit against the original defendant Lakpa Sherpa (the respondents are his legal representative) for declaration that they are the absolute owners of a two storeyed wooden house measuring 15' x 40' situated at Rongli Bazar (hereinafter mentioned as the suit premises), that the entry in the records of rights in respect of the suit premises in the name of the original defendant is incorrect and for permanent injunction restraining them from interfering with their peaceful possession of the suit premises. The case is of the appellants that one Goley Gyalpu Bhutia was the owner of the suit premises. His son was Laku Ongden Bhutia, the appellants being its daughters through his first wife. In the year 1969, after the demise of their mother, their father Laku Ongden Bhutia remarried another woman on account of which they were brought up under the care and custody of their (maternal) grandfather Cholek Dorjee Bhutia who was appointed as their guardian ad litem by the Chief Magistrate, Gangtok in his order dated 10-8-1972 in Civil Miscellaneous Case No. 41 of 1972. During the guardianship the appellants' father and their guardian entered into an agreement dated 9-8-1973 to the effect that the properties standing in the name of the grandfather (Goley Gyalpu Bhutia) would be divided into equal halves between the appellants and the issues through their second mother. Contrary to this agreement and without anybody's knowledge their father sold out a portion of the wooden house to the original defendant by executing sale deed on 25-1-1979. When this fact came to the knowledge of their guardian, he filed objection to the sale before the District Registrar who after hearing the parties cancelled the registration of the sale deed. Subsequently, the appellants' father executed, a registered sale deed dated 13-10-1980 in'their favour in respect of the entire half portion of the suit premises in the spirit of the earlier agreement dated 9-8-1973. Following the execution of the sale deed, their guardian took possession of the suit premises and inducted one Lakpa Sherpa Sardar as tenant therein. The guardian had been collecting rent from him. After death of their guardian in the year 1994, the appellants have been collecting rent from htm. The appellants allege that the sale made by their father in favour of the original defendant is null and void because of the prohibition of sale of immovable property by Bhutias and Lepchas in favour of the other communities. Although they have been in continuous and peaceful possession of the suit premises since 1980 first through their guardian and after his death by themselves, the original defendant attempted to exercise his authority over the suit premises and started instigating the tenant not to pay rent. On the other hand, the original defendant had been in possession of the other half of the wooden structure on the basis of the sale made by their father in his favour. Having noticed the hostile activities of the original defendant as well as his legal representatives they applied for mutation of the suit premises in their favour but to their utter surprise they could come to know that the suit premises and the other half of the wooden structure stand recorded in the name of the original defendant. The Sub-Divisional Magistrate advised them to approach the Civil Court for necessary relief and hence the suit. In the written statement the defendants denied all the allegations. Their case is that the suit is barred by time. According to them, the deed dated 9-8-1973 executed by the father of the appellants was not an agreement but a compromise deed. The guardian was aware of the sale deed executed by the father of the appellants in favour of the original defendant. The objection raised by the guardian in respect of the sale was heard by the Registrar who allowed registration of the suit premises on 20-3-1979. They had taken possession of the same in December, 1978 when negotiation for sale was in progress and since then they have been in possession of the same. On 13-5-1996 the original defendant applied to the Urban Development and Housing Department of the Government of Sikkim for approval of a blue print for reconstruction of the wooden house to a r.c.c. structure. The department after consideration approved the plan and the original defendant started construction thereafter. The guardian of the appellants was aware of the sale of the wooden house including the suit premises but did not take steps for enforcement of agreement dated 9-8-1973. On the basis of the above pleadings, parties led their respective evidence. The trial Judge decreed the suit of the appellants by recording the following findings:

(3.) In the appeal filed by the defendants, the learned District Judge reversed the decision of the trial Judge and dismissed the appellants' suit by holding as follows :