KRISHNA PRASAD Vs. SHYAM NARAYAN PRASAD

JUDGEMENT

(1.) This Appeal is directed against the Judgment and Decree, dated 19th November, 2004 passed by the learned District Judge, Special Division-II, Sikkim in Title Appeal No. 2 of 2003, who had dismissed the suit by reversing decree dated 29th November, 2002 passed by the learned Civil Judge, East, in Civil Suit No. 10 of 2001 filed by the Appellants. Thus, the Plaintiffs who had filed the Civil Suit in the Court of the learned Civil Judge, East at Gangtok, and had obtained a decree in their favour, are now the Appellants in the present Second Appeal.

(2.) The following is the backdrop of the case between the parties. One Shri Gopalji Prasad, who is the common male ancestor of the parties," being the father of the Respondents and grandfather of the Appellant Nos. 1, 2 and 3 and great grandfather of the Appellant No.4, owned several movable and immovable properties in Sikkim, as well as outside. The properties so owned by him, were partitioned with his five sons in the year 1987, vide, partition deed executed on 31st July that year. In the partition, Shri Gopalji Prasad only retained some property for himself and the rest were all partitioned among his sons. Among the 5 sons, Shri Laxmi Prasad, Respondent No.2, the eldest of the 5 sons got half portion of the two storied RCC building situated at Singtam Bazar, East Sikkim, while Shri Shyam Narayan Prasad, Respondent No.1, the third son, got the business of shoes and manihari, under the name and style of M/S North End Company at Old Market, Gangtok, being run in the rented premises of one Shri Gauri Shankar Prasad, one Tata truck bearing No.WGY-4634 already registered in his name and remaining half portion of the double storied RCC building at Singtam, the first half having fallen in the share of Laxmi Prasad, Respondent No.2.

(3.) By an agreement dated 30th January, 1990, the two brothers, namely, Laxmi Prasad, (Defendant/Respondent No.2) and Shyam Narayan Prasad, (Defendant/Respondent No.1) exchanged the above properties which had fallen in their respective shares during the partition. Admittedly, the above exchange agreement was entered into between the two brothers, without the knowledge and consent of the present Appellants who are sons and grandson of Laxmi Prasad, (Respondent No.2). However, upon coming to know of the said transaction in the year 1999, the sons of the Respondent No.2, namely, Krishna Prasad, (Appellant No.1), Sandeep Prasad, (Appellant No.2), Raju Kumar, (Appellant No.3) and Dilip Kumar Prasad (Respondent No.3) filed objection in the mutation proceedings before the District Collector, East. Upon such objection, the District Collector kept the mutation proceedings in abeyance and thereafter, the Plaintiffs/Appellants filed the above said Civil Suit against Shri Shyam Narayan Prasad (Defendant/Respondent No. 1) and Shri Laxmi Prasad (Defendant/Respondent No.2), claiming declaration that the suit property was an ancestral property of the Plaintiffs/Appellants and that the alleged transaction of exchange entered into vide, document dated 30.1.1990, between the Defendant/Respondent No. 1 and the Defendant/Respondent No, 2 was void and illegal, and that the Respondent No.1 had acquired no right title and interest over the suit property by virtue of the said document dated 30.1.1990 alongwith other consequential reliefs.