CHEWAG DORJEE LAMA Vs. LEARP DORJEE BHUTIA

JUDGEMENT

(1.) Plaintiff in Civil Suit No. 2 of 2004 is the appellant in this Second Appeal, which is directed against the judgment dated 30-7-2005 and decree dated 16-8-2005, passed by the learned District Judge, (South and West) at Namchi, in First Title Appeal No. 1 of 2005 reversing the Judgment and Decree dated 22-2-2005 passed by the Senior Civil Judge, South Sikkim at Namchi in the above Civil Suit. The facts giving rise to the dispute between the parties, may briefly be stated as follows :-

(2.) The appellant inherited landed properties covered by plot numbers 230, 231, 232 and 408 situated at Namchi Bazar, South Sikkim, on the demise of his late father Shri Tonyot Lama. Having joined service under the Government of Sikkim in the year 1954, the appellant was always on the move on account of transfers and postings to different stations. For this reason and also for the reason that he had settled down in Gangtok, East Sikkim, during the service period, the above land inherited by him at Namchi was left under the care and enjoyment of his only sister, Late Pempa Doma Bhutia and her late husband Tempo Bhutia. Since the said Tempo Bhutia lived as 'gharjuwai', he and his wife late Pempa Doma Bhutia lived with Late Doma Bhutia, the mother of the plaintiff/appellant at Namchi in the wooden house built on plot No. 231. In the year 1988, when the appellant happened to be at Namchi for a brief period, on transfer to that place, the respondent No. 1 who is his nephew, being the son of his late sister Pempa Doma Bhutia, approached him for selling him the piece of land covered by plot No. 231 on which a wooden house was constructed and in which they were living. Conceding to the request, the appellant sold the said piece of land covered by plot number 231 along with the wooden house standing thereon to the respondent No. 1 by registered sale deed dated 2-11-1988. At the relevant time, it came to the notice of the Appellant that the respondent No. 1 had also raised some kutcha sheds beyond five feet of the piece of land sold to him. On objection being raised by the appellant, the respondent No. 1 dismantled the structure in the year 1991. In the year 2000, the Appellant came to know that the Government was acquiring some land for various developmental projects at Namchi and compensation was being paid for the same. Since the Appellant had land at Namchi, he made enquiries, and in course of such enquiry, he obtained certified copy of the sale deed and khatiyan parcha from the Office of the District Collector, South Sikkim, in respect of the land belonging to him. From these documents, it transpired that plot numbers 230 and 232 which were retained by the Appellant while selling away plot number 231 to Respondent No. 1 in the year 1988, were also included fraudulently in the sale deed dated 2-11-1988, besides plot number 231 and after having done this, portion of plot No. 230 was also sold to Respondent Nos. 2 to 4. The Appellant also came to know that the Respondent No. 1 had, by misrepresenting himself as the true owner, also received compensation paid by the Government in respect of the Appellant's land so required. On coming to know of all this, the Plaintiff/Appellant in the year 2004 filed a Civil Suit being Title Suit No. 2 of 2004 in the Court of the Civil Judge, (South and West) at Namchi against the Respondent No. 1 and four others for declaration, possession, injunction and other consequential reliefs in respect of the plot numbers 230 and 232 situated at Namchi Bazar, South Sikkim.

(3.) In the said suit, all the Respondents filed written statements. The Respondent No. 1 in his separate written statement contended that the Appellant had sold Schedule 'B' land (i.e. plot Nos. 230 and 232), and plot No. 231 along with the house in the plot No. 231 vide, sale deed dated 2-11-1988 and had not only admitted the registration of the schedule land in the year 1988, but had also conceded that small portion of land which was missed out earlier was also included in the name of the Defendant. It was accordingly contended that the Respondent No. 1 had acquired right, title and interest over the schedule property by virtue of registered sale deed and the Appellant's own endorsement dated 10-8-1995. It was further contended that the suit of the Plaintiff/ Appellant was also barred by principles of adverse possession.