SON TSHERING LEPCHA Vs. SANEY TSHERING LEPCHA

JUDGEMENT

(1.) BY this Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short the "CPC") the Appellants -Plaintiffs seeks to assail judgment of the District Judge, South Sikkim at Namchi, dated 30 -05 -2014 dismissing Title Appeal Case No. 01 of 2010 filed by him against the judgment and decree of the Civil Judge, South Sikkim at Namchi, dated 09 -07 -2008 in Title Suit No. 07 of 2007.

(2.) (i). To set out the factual matrix, a suit for declaration of title, recovery of possession and injunction was filed by the Appellants -Plaintiffs against the Respondent -Defendant in respect of certain plots of land described in the Schedules 'A', 'B' and 'C' to the plaint. (ii) As per the Appellants -Plaintiffs, Late Sarmit Lepcha related as an aunt to them, was possessed of various plots of land bearing Nos. 57, 58, 64, 68 and 73 as per the survey record of 1950 -52 situated under Chumlok Block, Wok Elakha, South Sikkim. Out of these, she sold to the Respondent -Defendant a land known as 'Rigidhang' bearing plot No. 64 (old) as described in Schedule 'A' to the plaint around the year 1961 but, before the sale could be registered she died and later the entire land standing in her name including Schedule 'A' property was mutated in the name of Late Tashi Tshering Lepcha, father of the Appellants -Plaintiffs No. 2 to 4 and grandfather of Appellant -Plaintiff No. 1.

(3.) (i). Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Appellants -Plaintiffs, contended that the First Appellate Court exceeded its jurisdiction in deciding the Appeal in favour of the Respondent -Defendant who had neither filed an Appeal nor a Cross Objection and, therefore, being contrary to Order XLI Rule 22 CPC, it deserved to be set aside. It was submitted that Title Appeal Case No. 1 of 2010 was filed by the Appellants -Plaintiffs being aggrieved only on the part of the judgment of the Trial Court dated 09 -07 -2008, holding the Respondent -Defendant to be owner of the land described in Schedule 'B'. It was contended that neither Order XLI Rule 22 nor Order XLI Rule 33 CPC vested the First Appellate Court with the jurisdiction to reopen the entire decree. (ii) It was further contended that when the questions of limitation had been duly considered on the facts and correctly decided in favour of the Appellants -Plaintiffs, it was not open for the First Appellate Court to have entered into that question in the absence of an Appeal or Cross Objection. (iii) The crux of his submission on both the questions was that having regard to the scope and ambit of Order XLI Rules 22 and 33 CPC, in the absence of an Appeal or a Cross Objection, the only option available to the Respondent -Defendant was to support the decree of the Court below. If he intended to challenge any part it, he could do so only by filing an Appeal or a Cross Objection. Objection of maintainability of the Suit on the ground of limitation was only a ruse to get over the finding on the plea of adverse possession held by the Trial Court against the Respondent -Defendant.