PEM CHODEN BHUTIANI Vs. RINCHEN DORJEE

JUDGEMENT

(1.) JUDGMENT :- This is an appeal against the judgment and decree dt.10th April, 1985 of the learned Additional District Judge, decreeing the suit brought in the year 1977 by the respondent Shri Rinchen Dorjee for declaration as the owner of plot No. 698 measuring 5.23 acres under Khatian No. 17 situated at Lingdam, East Sikkim and also for its possession.

(2.) The land in question belonged to late Enchey Kazi. Both the parties claim title to it through his heirs. However, the land remained recorded in the record of rights, in the name of Enchey Kazi for many years even after his death and subsequently was recorded in the name of Tshering Gyamtso, the second son of Enchey Kazi until the respondent got the mutation effected in his name, on an application filed for that purpose in January, 1968 before the District Officer, East. Thereafter, by means of an application dt. 16th May, 1977, appellant 1 challenged the mutation effected in the name of the respondent which resulted in the change of mutation in her name vide order dt. 7th July, 1977 of the District Magistrate, Sikkim passed in Miscellaneous case No. 122 of 1977. The respondent claims title on the plea that the land had been gifted to his grandfather late Dugay Bhutia by late Enchey Kazi and later it passed to him through his father Shri Dorjee Bhutia. He has pleaded peaceful cultivatory possession of his and his family since the year 1938 until 1969 when the appellants started encroaching on about 0.20 acre of the land. Subsequently, he amended the plaint, with the leave of the Court, so as to claim possession in respect of the entire plot.

(3.) On the other hand, the appellants have pleaded in their written statement filed on 3-9-77, that Saila Kazi, the third son of Enchey Kazi who was looking after the land in question, amongst others, on behalf of the children of his deceased brother Tshering Gyamtso permitted them 26 years back to enjoy the land and to construct thereon a house, and also promised that in due course of time, the land would be mutated in their names and since then they have been in possession of the land. They have alleged that immediately after getting the land, they constructed a temporary dwelling house and two years later a pucca house with corrugated iron sheets thereon.