KUL BAHADUR RAI Vs. DAWA TSHERING LEPCHA

JUDGEMENT

(1.) JUDGMENT :- This appeal is directed against the judgment and decree dated 11th July, 1985 of the learned District Judge dismissing the suit brought by the appellants for a declaration that appellant No. 1 is the owner of plot No. 2003 Rakdong Block, East District, measuring 1.4780 hectares, for a direction to the authorities concerned to correct the relevant entry in column No. 2 of the Dhadia Khatian by inserting the name of appellant No. 1 in place of the name of Leda Lepcha and also for perpetual injunction restraining the respondents from interfering with their possession in respect of that land.

(2.) Appellant No. 1 is the son of appellant No. 2 and respondent No. 1 is the son of respondent No. 2. Admittedly the land in question was originally government land under the landlord Gaden Kazi who could pass on the land to any one. Both the parties claim to have taken grant from the said landlord. According to the appellants, appellant No. 2 got the grant in the year 1946 whereas, according to the respondents, the father of respondent No. 2, Leda Lama Lepcha took the grant in the year 1945. The appellants have pleaded that in the year 1962, appellant No. 2 handed over possession of the land to appellant No. 1 and since then the latter has been in continuous possession and enjoyment of the same; but during the recent survey operation the land was wrongly recorded in the name of late Leda Lepcha, the father of respondent No. 2 whereafter, at the instance of appellant No. 1, respondent No. 2 made an application addressed to the settlement authorities on 21st June, 1982 requesting them for correcting the entry into the name of appellant No. 1. Appellants have further pleaded that appellant No. 1 submitted a written application with a copy of the application prepared by respondent No. 2 to the settlement authorities but the same was not attended to; and suddenly in November, 1984 respondent No. 1 came to the land with police and claimed a share in the produce stating that appellant No. 1 was only a adhiadar and coerced and forced that appellant to sign an agreement dated 11-11-84 (Ex.D-8) in the form of a compromise addressed to the District Magistrate, East Sikkim to the effect that during enquiry on the complaint made by respondent No. 1,the matter was discussed by the elders of the village and it was found that respondent No. 2 had given the land to appellant No. 1 for cultivation and enjoyment and thereafter the land was given by appellant No. 1 to respondent No. 1 after enjoying the produce of the land for the year 1984, being the compensation for improvement of the land. On the other hand, the case of the respondents is that after getting the grant of the land from the landlord Gaden Kazi in the year 1945, Leda Lama Lepcha, the father of respondent No. 2, allowed his father late Ingib Lepcha to enjoy the produce of the land, during his lifetime as "Jewney" and on the death of Ingib Lepcha he himself took over the land and continued to enjoy it until his death in the year 1981. It is pleaded that the responsibility for performing the death rites of Leda Lama Lepcha fell on respondent No. 2 who was in financial distress at that time and so he obtained a loan of Rs. 5,475/- from respondent No. 1, under an agreement that the produce of the land would be received by appellant No. 1 as interest but since the agreement was not in writing, the transaction was treated as of adhiadar. Further it is stated that in the year 1979 Survey operations, the land was wrongly recorded in the name of the paternal uncle of respondent No. 2, Chyabuk Lepcha and on representation made to the department of Survey and Settlement, the record was corrected and the name of Leda Lama Lepcha was recorded without there being any objection from any quarter. It is further alleged that respondent No. 1 asked the appellants to hand over the possession of the land and on their refusal to do so, respondent No. 1 complained to the District Magistrate, East Sikkim who ordered a police enquiry and during the police enquiry facts about financial transaction came to light and on the same day that is 11-11-84 respondent No. 2 repaid a sum of Rs. 4,050.00 to appellant No. 1 with an undertaking that the remaining amount of Rs. 1,425.00 would be repaid on 21-11-84 and accordingly the remaining amount was also paid to appellant No. 1 on the latter date. Regarding the compromise, the respondents have alleged that the same had been drawn up through the intervention of the block Mondal, the local Panchayat and in the presence of a large number of witnesses making a request for dismissal of the complaint filed by respondent No. 1 as withdrawn and after the compromise, possession of the land reverted to the respondents. Regarding the appellants' allegation about wrong entry during the last survey, the respondents have pleaded that the entry in the name of Leda Lepcha was not wrong and appellant No. 1 never approached respondent No. 2 for correcting the record and that the respondents are not aware of appellant No. 1 having made any application to the authorities.

(3.) The learned District Judge framed eight issues. Issues Nos. 3, 4 and 5 upon which the decision has turned are to the effect whether the appellants had any right, title and interest in respect of the land in question and whether they are in possession and whether the record of rights in respect of the land in question was wrong. All these issues were decided by the learned District Judge against the appellants, which resulted in dismissal of the suit.