PALDEN BHUTIA Vs. JANUKA CHETTRI

JUDGEMENT

(1.) This Appeal is directed against the judgment and decree dated 24- 3-2006, passed by the learned District Judge (South & West) at Namchi, in title Suit No. 9 of 2005.

(2.) The facts of the case, relevant for the purpose of this Appeal, in a nutshell, are that the Appellants herein, who were minors, filed a Civil Suit being Civil Suit No. 14 of 1988 through their mother and natural guardian against the present Respondent No. 1 and others in the Court of learned Civil Judge (West) at Gyalshing for declaration, recovery of possession and other reliefs in respect of a piece of land i.e. the suit land in the year 1988. In the said suit the case of the Plaintiffs/Appellants, in short, was that they were Sikkimese by birth and members of Bhutia Tribal Community of Sikkim, whereas the Defendants /Respondents were the members of Nepali Community who did not hold Sikkim Subject. The suit land was their ancestral and joint family property. As such, their father Late Gompu Bhutia, who had sold the suit land to the Respondents, had no right to alienate the same. The alienation made by him was, therefore, not binding upon the Plaintiffs/Appellants. However in course of the proceedings, the parties compromised the matter on the intervention of well-wishers of both parties and filed a joint compromise petition, and the suit was disposed of by the learned Civil Judge vide order dated 17-5-1990 in terms of the said compromise. Subsequently, in the year 2005 the present Appellants who are the legal heirs of late Gompu Bhutia instituted a suit being Title Suit No. 9 of 2005 in the Court of the learned District Judge (South and West) at Namchi on 25th October, 2005 for declaration that the compromise decree dated 17-5-1990 passed by the learned Civil Judge, West Sikkim in Civil Suit No. 14 of 1988 was untenable in the eye of law, and for other reliefs including the prayer for restoration of possession after setting aside the decree. The Respondents contested the suit by filing joint written statement, raising several grounds, wherein a preliminary issue relating to maintainability of the suit was raised. On the basis of the pleadings, the learned trial Court vide Order dated 17- 12-2005 framed 13 issues, out of which issue Nos. 1, 2 and 3 were to be heard as preliminary issues. However, on the submissions made by the learned Counsel for the parties on 13-3-2006, the Issue No. 1 relating to bar of Rule 3-A of Order XXIII, CPC (Issue No. 1) was taken up first for hearing and vide, impugned judgment and decree dated 24-3-2006, the learned trial Court decided the preliminary issue, holding that the suit was barred by the provisions of Rule 3-A of Order 23 of CPC and accordingly dismissed the suit. Being aggrieved by the said judgment/decree dated 24-3-2006, the Plaintiffs/Appellants have come up in the present Appeal.

(3.) Mr. A. Moulik, learned Senior Counsel assisted by Mr. N. G. Sherpa and Ms. Kesang Diki Bhutia, learned Counsel appearing on behalf of the Plaintiffs/Appellants and Mr. R. K. Agarwal, learned Counsel assisted by Mr. J. B. Pradhan, learned Counsel were heard.