Meenakshi Madan Rai, J.
1. This Appeal assails the Judgment and Decree dated 08.06.2017 in Title Suit No. 06 of 2014 (Shri Kussang Limboo and Another v. Shri Kiran Limboo) vide which the Suit of the Respondents/Plaintiffs was decreed.
2. The Appellant was the Defendant before the learned trial Court and the Respondents No.1 and 2, brothers, were Plaintiffs No.1 and 2 respectively. The parties shall be referred to in their order of appearance before the learned trial Court.
3. Before embarking on the merits of the matter, a brief narration of the facts is imperative. The Plaintiffs claimed to be owners of “Schedule A’ property being land bearing plot No.534, Khatiyan No.593, measuring .1300 hectares, under Hee Block, Gyalshing, West Sikkim with “Schedule B’ property, a house measuring 18 feet x 12 feet, standing on a portion of the said land. Consequent upon the demise of the Plaintiffs’ parents in 2006, and on Plaintiff No.1 attaining the age of majority on 25.07.2014, the suit property was mutated in his name. The Plaintiffs sought eviction of the Defendant from the suit property alleging that his possession over it was illegal and that the property was required for their own use. That, a previous Suit being Title Suit No.07 of 2012 filed by the Plaintiffs against the Defendant on a different cause of action before the learned trial Court had been withdrawn and the instant Suit filed. The Plaintiffs sought the following reliefs;
“9. …… a) A decree declaring that the Plaintiffs are jointly the absolute owners of the suit property.
b) A decree declaring the possession of the Defendant over the Suit property as illegal.
c) A decree for recovery of the suit property from the possession of the Defendant.
d) For any other relief/reliefs to which the plaintiff may be found entitled to either in law or in equity.”
4. Contesting the Suit of the Plaintiffs, the Defendant averred inter alia that he was the progeny of his father, late Buddhi Raj Limboo and his second wife Jasmaya Limboo. His father had three other sons from his previous wife, viz. Durga Singh Limboo (since deceased), Dhan Raj Limboo and Buddhi Lall Limboo. The Plaintiffs being the sons of late Durga Singh Limboo are his nephews. From the year 2004 till 2008, the Defendant was living in the Plaintiffs’ house. In 2008, Dhan Raj Limboo and Buddhi Lall Limboo gave him “Schedule B’ property vide document dated 20.12.2008, “Bandabast Patra” (Exhibit A) in the presence of witnesses as his share in the ancestral property. He also paid a sum of Rs.60,000/- (Rupees sixty thousand) only, to Buddhi Lall Limboo as expenses incurred by his brothers on repairing the wooden house standing on “Schedule B’ property. Vide another “Bandabast Patra” dated 14.11.2010 (Exhibit B), his brothers Dhan Raj Limboo and Buddhi Raj Limboo allowed him to construct a house in the courtyard in front of the “Schedule B’ property. Pursuant to such construction he along with his mother resided therein, his father having passed away in 2013. Subsequent thereto, the Plaintiffs in collision with their uncles Dhan Raj Limboo and Buddhi Lall Limboo filed a false Suit (Title Suit No.07 of 2012), against the Defendant and his late father also impleading Dhan Raj Limboo and Buddhi Lall Limboo as Defendants, to evict the Defendant from the suit land but was withdrawn on 19.06.2014. Thereafter, the Plaintiff No.1 surreptitiously caused the entire plot No.534 to be recorded in his name. On learning of such change in the records after receiving a Legal Notice he has filed the Counter Claim.
5. In his Counter Claim, the Defendant reiterated that he is in possession of an area measuring 25 feet x 45 feet in plot No.534, under Khatiyan No.593, Hee Block, Gyalshing, West Sikkim and sought the following reliefs;
“1. A declaration that the Defendant is the owner in possession of the suit property of this Counter Claim.
2. Or in the alternatively (sic) a declaration that the Defendant is entitled to hold the possession of the suit property of this Counter Claim as his share in the properties left behind by late Buddhi Raj Limboo.
3. A declaration that the recording of Plot No.534 in the name of Plaintiff No.1 is illegal and liable to be cancelled.
4. In consequence to relief 3 above, a direction directing the office of the LR & DM, Gyalshing, West Sikkim to make necessary corrections in the Records of Right by inserting the name of the Defendant in respect of the suit property of this Counter Claim and direction directing the said office to cancel and rectify the Khatiyan Parcha of the Plaintiff No.1 and to issue a Khatiyan Parcha to the Defendant in respect of the suit property of this Counter Claim.
5. A declaration confirming the possession of the Defendant over the suit property of this Counter Claim.
6. An injunction restraining the Plaintiffs from interfering with the right, title and possession of the Defendant over the suit property of this Counter Claim.
7. Cost of the Counter Claim. 8. Any other reliefs to which the Defendant is found entitled to.”
6. Responding to the Counter Claim, the Plaintiffs in their Written Statement disputed the claims and denied the paternity of the Defendant, alleging that he was alien to their family. That, on the strength of a false/forged document, he had obtained a Certificate of Identification (for short “COI”) which on 26.07.2012 was cancelled by the Additional District Collector, West, besides which the Defendant also obtained a false birth record, thus, the claims of the Defendant are devoid of merit.
7. The learned trial Court settled the following Issues for determination;
'1. Whether the plaintiffs are the absolute owner of the suit property as mentioned in the plaint?
2. Whether the plaintiff No.1 surreptitiously and behind the back of the defendant cause (sic) the entire plot No.534 to be recorded in his name or same was recorded by following due process of law?
3. Whether the possession of the defendant over the suit property mentioned in the plaint is illegal and is liable to be evicted from the said suit land?
4. Whether in and around the year 2008, Shri Dhan Raj Limboo and Shri Buddhi Lal Limboo had given the Schedule B property to the defendant under a written document 20.12.2008 and the same is forged and sham transaction?
5. Whether the defendant is also one of the sons of Late Buddhi Raj Limboo and is entitled to a share in the property left behind by Late Buddhi Raj Limboo?
6. Whether the defendant is entitled to retain the suit property as mentioned in the counter claim as his share in the properties left behind by Late Buddhi Raj Limboo?
7. Whether the defendant is entitled to have the suit property as mentioned in the counter claim to be mutated in his name after making necessary correction in the records of right?
8. The Plaintiff No.1 (PW1) filed his Evidence-onAffidavit and that of his three witnesses being Buddhi Lall Limboo (PW2), Dilip Kumar Rai (PW3) and Padam Lall Limboo (PW4). The Defendant filed his Evidence-on-Affidavit and that of his witnesses Sudesh Kumar Subba (DW1) and Ran Bahadur Subba (DW2).
9. Issue No.5 was taken up first for discussion and the learned trial Court on consideration of the evidence on record reached the finding that the Defendant had failed to satisfactorily prove that he is one of the sons of late Buddhi Raj Limboo and was consequently not entitled to a share of the property of late Buddhi Raj Limboo. In Issue No.4, the learned trial Court concluded that the Suit Property was the ancestral property of the Plaintiffs and no person had any right to transfer the property in favour of a third party. That, Exhibit A and Exhibit B executed by PW2 and Dhan Lall Limboo with regard to plot No.534, although not forged, were void, invalid and unauthorized, and decided the Issue in favour of the Plaintiffs. Issues No.1 and 2 were taken up together and it was observed that the Plaintiffs were the absolute owners of the Suit Property, both Issues thus came to be decided in favour of the Plaintiffs. In Issue No.3, the learned trial Court observed that the possession of the Defendant over the Suit Property was on account of the unauthorized actions of Dhan Raj Limboo and Buddhi Lall Limboo, who, although not the absolute owners of the Suit Property had alienated it in favour of the Defendant. The Issue went in favour of the Plaintiffs. Issue No.6 was also decided in favour of the Plaintiffs in view of the decision in the preceding Issues. Issues No.7 and 8 were taken up next wherein it was held that the Defendant was not entitled to the reliefs claimed in his Counter Claim, while the Plaintiffs were entitled to the reliefs claimed at paragraph 9(a), (b) and (c) of the Plaint, (extracted supra). The Suit was thus decreed in favour of the Plaintiffs.
10. Emphasizing that Exhibit 11, the alleged Partition Deed of 1988, allegedly executed by late Thabgo Limboo, grandfather of the Defendant Kiran Limboo, Durga Singh Limboo, Dhan Raj Limboo and Buddhi Lall Limboo and great grandfather of the Plaintiffs, was a document fabricated for the purposes of this case, learned Senior Counsel for the Defendant canvassed that this is evident from the fact that no physical partition took place thereafter and no steps were taken towards registration of their alleged respective shares. This was the position even when the Defendant and his father returned to Sikkim in 2004. Assuming that Exhibit 11 was indeed executed no reasons for exclusion of Buddhi Raj Limboo was revealed therein although the Plaintiff No.1 in his evidence did not deny that Buddhi Raj Limboo was the son of Thabgo Limboo. In fact he admitted that the Defendant was also one of the sons of Buddhi Raj Limboo but from his second wife, thereby admitting his lineage. Vide Exhibit A and Exhibit B Buddhi Lall Limboo and Dhan Raj Limboo have unequivocally accepted that the Defendant was their half brother, being the son of their father through his second wife. The Plaintiffs also failed to establish as to whether the property was the self acquired property of Thabgo Limboo or whether it was ancestral as no document to establish transfer of the property to Thabgo Limboo was furnished by the Plaintiffs. That, in fact mere recording of name in Khatiyan does not transfer title. To augment this submission strength was drawn from Karma Doma Gyatso alias Babila Kazi v. Mrs. Kesang Choden & Ors. (AIR 2009 Sikkim 6) and Bishnu Kumar Rai v. Minor Mahendra Bir Lama and Ors. (AIR 2005 Sikkim 33) as also Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others (2014) 2 SCC 269). That, while decreeing the Suit of the Plaintiffs the learned trial Court contemplated on the weaknesses of the Defendant’s case, when in fact the relief ought to have been granted on the strength of the Plaintiffs’ case, which was non-existent. That, in fact Buddhi Lall Limboo PW2 is the architect of this case who however had in the earlier Title Suit No.07 of 2012 in his Written Statement (Exhibit C) admitted the execution of documents viz. Exhibit A and Exhibit B as also in cross-examination and is therefore estopped from denying their existence and transfer of the suit property to the Defendant. On this count, reliance was placed on B.L. Sreedhar and Others v. K.M. Munireddy (Dead) and Others (2003) 2 SCC 355). Reliance was also placed on Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr. (AIR 2010 SC 2077) in which it was held that estoppel cannot be elected, in other words, a party cannot approbate and reprobate. That, in the Suit (supra) the Plaintiffs had impleaded the father of the Defendant, Buddhi Raj Limboo, his uncles Buddhi Lall Limboo, Dhan Raj Limboo and the Defendant (Kiran Limboo) as Defendants, and sought a declaration that the property was ancestral for the Plaintiffs and Defendants Buddhi Lall Limboo and Dhan Raj Limboo but not for the Defendant, whose possession was alleged to be illegal and therefore he was liable to be evicted. That, for reasons best known to the Plaintiffs, they withdrew the Suit (Title Suit No.07 of 2012) which was allowed vide order dated 19.06.2014, till which time the suit property continued to remain recorded in the name of Thabgo Limboo. That, plot No.534 came to be registered in the name of the Plaintiff No.1 only in the year 2014 after the withdrawal of the Title Suit No.07 of 2012. In the surreptitious race to register the Suit Property in the Plaintiff No.1’s name which was accomplished on 21.08.2014, in order to outwit and evict the Defendant, the name of Sukman Limboo the brother of Plaintiff No.1 was excluded in the Khatiyan Parcha, although he is also the son of Durga Singh Limboo and thereby an equal shareholder. That although the Plaintiffs’ witnesses seek to deny the parentage of the Defendant by pointing to cancellation of his COI, however they concealed the fact that the cancellation was only on account of the School Certificate furnished by the Defendant of a School in which he had not studied. There is no finding by the concerned authority that the Defendant is not the son of Buddhi Raj Limboo. He is thus entitled to apply for and obtain a COI on the basis of his parentage. The finding of the learned trial Court that he cannot hold properties herein is therefore an erroneous finding. That, the Defendant lived with his father Buddhi Raj Limboo on the suit property till his demise in 2013 without questions or objections from any quarter which came to be raised only after his father’s death despite Exhibit A and Exhibit B having been executed prior to his death. That, Exhibit A and Exhibit B are not required to be registered in view of the fact that the property was still standing in the name of Thabgo Limboo. Hence, the impugned Judgment and Decree be set aside and reliefs prayed for in the Counter Claim be granted.
11. Resisting the arguments of the Defendant, learned Senior Counsel for the Plaintiffs contended that late Thabgo Limboo the original holder of the disputed property vide Exhibit 11, “Banda Patra,” dated 12.03.1988, partitioned his landed properties amongst his sons and grandsons. The properties described in “Schedule A’ fell in the share of late Durga Singh Limboo, father of the Plaintiffs, which the Plaintiffs inherited on his demise and are jointly and absolutely possessing. That, as the Plaintiff No.1 was the elder of the two brothers, the Suit Property was recorded in his name on his attaining majority, as such neither Buddhi Lall Limboo nor Dhan Raj Limboo could have alienated it to the Defendant on the Plaintiffs behalf either through Exhibit A, “Bandabast Patra” dated 20.12.2008 or Exhibit B, “Bandabast Patra” dated 14.11.2010. Besides, both documents are unregistered which is a requisite when transfer of immovable properties is intended. The Defendant has failed to establish by documentary evidence that he is the legitimate son of late Buddhi Raj Limboo or that the Suit Property was left to him by his father, who admittedly was neither the owner of the Suit Property nor did he lay his claim to it during his lifetime. That, the COI obtained by him was cancelled on account of him furnishing a false document claiming that he had studied in the Government Senior Secondary School, Hee Yangthang, West Sikkim, and the cancellation remaining unchallenged has thereby attained finality. Had he been the son of late Buddhi Raj Limboo he could have easily obtained the COI through his parentage but no such effort was made during his father’s lifetime. That, the property being the self acquired property of Thabgo Limboo no share was allotted for late Buddhi Raj Limboo who was unheard of for about forty years. Padam Lall Limboo the only surviving son of late Thabgo Limboo was neither made a party nor were the legal heirs of late Bhim Lall Limboo, the second son of late Thabgo Limboo, made parties, without their impleadment he cannot stake claim to the suit property. That, the evidence on record also fails to establish the claims of the Defendant, hence the Appeal be dismissed.
12. The submissions of learned Counsel for the parties were heard at length and anxiously considered. The evidence and documents on record, the impugned Judgment and the citations placed at the Bar have been carefully perused.
13. The question that falls for consideration of this Court is whether the Defendant (Appellant) is the son of Buddhi Raj Limboo and whether he is entitled to the suit property?
14. Exhibit 11 is purportedly a Partition Deed executed by late Thabgo Limboo dated 12.03.1988 in the presence of four attesting witnesses. The document details property partitioned amongst his sons Bhim Lall Limboo (since deceased) and Padam Lall Limboo and his grandsons Buddhi Lall Limboo (PW2), Durga Singh Limboo and Dhan Raj Limboo. This document makes no provision for his son Buddhi Raj Limboo although it is not denied that Buddhi Raj Limboo is also one of his sons. The averments made in the Plaint makes no mention of Exhibit 11. It is not the Plaintiffs’ case that the suit property fell in the share of their father by virtue of Exhibit 11, in fact the Plaintiff No.1 appears to be oblivious of the existence of Exhibit 11 until much later. The Plaintiff No.1 merely states that on having attained majority the suit land came to be recorded in his name. In his Evidence-onAffidavit filed on 01.07.2015 and affirmed on 25.08.2015 he does not advert to Exhibit 11. According to him the Suit property mentioned in Schedules A and B of his Plaint are ancestral properties which were inherited by him from his great grandfather. He admits to having filed a previous Suit in 2012 and withdrawn it in the month of June, 2014 (Exhibit 5). The Title Suit under discussion being Title Suit No.06 of 2014 was registered on 09.12.2014 and Exhibit 11 was sought to be filed by the Plaintiffs on 08.07.2016 much after closure of his evidence on 25.08.2015. The grounds put forth by the Plaintiffs in their petition under Order VII Rule 14(3) read with Section 151 of the Code of Civil Procedure, 1908, before the learned trial Court for non-filing of Exhibit 11 earlier was his lack of knowledge and its possession being with Buddhi Lall Limboo who had only recently handed over the documents to them. The Plaintiff No.1 on learning of Exhibit 11 did not seek to amend the pleadings. Although the Defendant objected to the Plaintiffs’ petition, the learned trial Court despite absence of averments in the pleadings allowed it concluding that the documents are important for proper adjudication of the matter and would not prejudice the Defendant as he would get an opportunity to crossexamine the witnesses. His cross-examination revealed that his uncles PW2 and Dhan Raj Limboo had acknowledged the Defendant as their brother. The relevant portion of his crossexamination is as follows;
“……It is true that according to the document dated 20.12.2008 my uncles, Shri Buddhi Lall Limboo (Khamdhak) and Dhan Raj Limboo had acknowledged that the defendant was their youngest brother through the second wife of their father and accordingly the defendant was given the land along with the house mentioned in Schedule-B of the plaint. It is true that the said document also reveals that the defendant was to pay Rs.60,000/- to my uncle, Shri Buddhi Lall Limboo as compensation of the cost of building the wooden structure standing on the said land. It is true that the execution of document dated 20.12.2008 (supra) by my uncle Shri, Buddhi Lall Limboo had been told to me by him before I filed Title Suit No. 7/2012 (supra). It is true that he had even told me then that he had given the suit property mentioned in Schedule-B of the present plaint to the defendant under the said document. ............... It is true that our ancestral properties has not been mutated in the respective names of my uncles, Shri Buddhi Lall Limboo and Shri Dhan Raj Limboo. ............... It is true that the suit properties involved in this suit and Title Suit No.7/2012 (supra) are the same i.e. Schedule-B property. It is true that I applied for mutation of plot no.534 immediately after withdrawing Title Suit No.7/2012. It is true that while applying for mutation I did not intimate to the concerned office that the defendant also claimed to be one of the sons of my grandfather and was also claiming a share in the ancestral properties including plot no.534. It is true that the intended mutation of plot no.534 was not brought to the notice of the defendant by the concerned office. It is true that because of this the defendant did not get an opportunity to object to such mutation of plot no.534 in my name. It is true that the defendant was brought to our house by my grandfather Late Buddha Raj Limboo along with him when he returned from Nepal after the residing there (sic) a number of years. It is true that my grandfather Late Buddha Raj Limboo had then told all of us including my uncles that the defendant was his son born through his second wife. ............... It is true that after the defendant received the suit property mentioned in Schedule-B of my plaint in the year 2008, he started living there along with his mother and my grandfather Late Buddha Raj Limboo. My grandfather Late Buddha Raj Gurung (sic) expired in and around the year 2013. It is true that till the time of his death my grandfather was living with the defendant in the house mentioned in Schedule-B of my plaint. It is true that his funeral was also conducted from the house of the defendant. It is true that neither me nor my uncles or any of our relatives objected to the fact that the funeral of my grandfather was conducted from the house of the defendant on the ground that the defendant was not related to us or my grandfather. It is not a fact that we did not object to this because the defendant was also the son of my grandfather. It is true that the defendant had also performed the death rites of my grandfather along with my other uncles. ............... It is true that the defendant had performed all the pious rituals during the death of my grandfather Late Buddha Raj Limboo as his son. ............... I have a sister named Binita. It is true that after the death of my father I was taken by my uncle, Shri Buddhi Lall Limboo under his wings. It is also true that my another uncle, Shri Dhan Raj Limboo took my another sister namely Manita and the plaintiff No.2 to stay with him after the death of our father. It is true that the defendant took my sister Binita to stay with him after the death of our father. ............... It is true that my uncle Shri Buddhi Lall Limboo has been financing me to file and pursue the present suit as well as Title Suit No.7/2012 (supra). ............... It is true that though I had personal knowledge of the existence of two Bandabast Patras dated 20.12.2008 and 14.11.2010 by which the defendant had been given portions of plot No.534 as his share by my uncles I did not bring to the notice to the Registrar while seeking mutation of Plot No.534 in my name. ............... It is true that under this document my uncles have given additional land to the defendant acknowledging him as their brother and that the defendant could even cause the registration of such land which was under his possession in his name. It is true that both my uncles had personally acknowledged to me of them executing this document dated 14.11.2010. .......”
Hence, from this evidence it is apparent that the Plaintiff No.1 had the knowledge that the Defendant is his uncle being the son of Buddhi Raj Limboo but conversely in the same breath insists that the Defendant does not belong to Sikkim. It may be reiterated here that the Plaintiff No.1 makes no mention whatsoever of the “Banda Patra” Exhibit 11 or his knowledge thereto of it at any point of time during the recording of his evidence. Even the Legal Notice, Exhibit 2, issued by the Plaintiff No.1 to the Defendant is devoid of reference to Exhibit 11. In contrast he is aware of the execution of Exhibit A and Exhibit B as revealed in his evidence.
15. PW 2 Buddhi Lall Limboo, the witness of the Plaintiffs while identifying Exhibit 11 as the Partition Deed executed by Thabgo Limboo deposed that no share of Buddhi Raj Limboo was held as he had been missing from the house for more than twenty nine years. He admitted his ignorance as to whether the property in Exhibit 11 was the self acquired or ancestral property of Thabgo Limboo. On the one hand however he admits that vide Exhibit C, his Written Statement in Title Suit No.07 of 2012, he had acknowledged executing the “Bandabast Patra” Exhibit A and that the contents of Exhibit C are correct. On the other hand, he states that he does not have knowledge of Exhibit A the “Bandabast Patra” dated 20.12.2008. Under crossexamination, he deposed that Exhibit 11 mentions reasons for non-allotment of share to his father Buddhi Raj Limboo. However, when confronted with Exhibit 11, he admitted that the document does not “give any reasons” for such non-allotment. He also testified that he had not admitted in Title Suit No.07 of 2012, in Exhibit C, that the lands mentioned in Exhibit 12 are the ancestral property of all sons and grandsons of late Thabgo Limboo and unpartitioned. Contrarily when confronted with Exhibit C, he admitted that on reading the contents of paragraphs 8 and 9 he had admitted therein that the lands were unpartitioned. The scribe of Exhibit 11 was not disclosed by this witness despite his assertion of personal presence when the document was prepared. He denied the suggestion that the attesting witnesses did not sign on Exhibit 11 in his presence. According to him, they transferred the lands in the year 2014 but again admitted that in Exhibit C he had stated that the lands had not yet been partitioned, while denying that Exhibit 11 was a false or fabricated document.
16. The evidence reveals inherent contradictions in that of PW1 and PW2. As per PW1, his grandfather Buddhi Raj Limboo brought the Defendant along with him when he returned from Nepal, to their home i.e. home of Durga Singh Limboo. PW2 Buddhi Lall Limboo however had a tangential narration stating that the Defendant had approached him for accommodation and requested him to let him in his house as he was in search of a job and in return he assured to give tuitions to his children. PW2 does not state why the Defendant approached him for accommodation or disclose the actual identity of the Defendant and he denies that the Defendant was the son of Buddhi Raj Limboo and his second wife Jasmaya Limboo, therefore his half brother. His evidence is also contrary to the evidence of Plaintiff No.1 with regard to Exhibit A and Exhibit B since the Plaintiff No.1 under oath would have the Court believe that the Defendant entered into possession of “Schedule B’ property having purchased the land from PW2 vide Exhibit A and that the execution of the said document was told to him by PW2 before he filed Title Suit No.7/2012, which was subsequently withdrawn. That, PW2 told him that he had given the suit property mentioned in “Schedule B’ of the Plaint to the Defendant vide Exhibit B. As per PW1, he had personal knowledge of the existence of the two “Bandabast Patras” Exhibit A and Exhibit B. According to him, both his uncles had personally acknowledged to him of having executed the subsequent document dated 14.11.2010 as well. However, PW2 when confronted with the “Bandabast Patras” Exhibit A and Exhibit B denied knowledge either of preparation or execution of the two documents. In the same breath he admitted that in Exhibit C he had acknowledged executing the “Bandabast Patra” dated 20.12.2008 in favour of the Defendant. He claims that Exhibit 11 was in his safe keeping but failed to enlighten the Court as to why he kept the document with him despite knowledge of the filing of Title Suit No.07 of 2012. The vacillating evidence of this witness and the statements made in contradiction to the evidence of the Plaintiff No.1 himself renders this witness and his evidence unreliable.
17. Plaintiffs' witness PW 3 Dilip Kumar Rai deposed that he is a family friend of the Plaintiffs but in cross-examination claimed to be their relation. According to this witness, Buddhi Raj Limboo returned to the village in the year 2004. He admitted the possibility of Buddhi Raj Limboo having married Jasmaya Limboo during his absence from the village. He could not say whether the Defendant was or was not the son of Buddhi Raj Limboo although he denied that the Defendant and Buddhi Raj Limboo came back to the village “together” in the year 2004. He admitted that Exhibit 3, the certified copy of the order of the Additional District Magistrate (West) did not indicate that the COI of the Defendant was cancelled on account of a finding that the Defendant was not the son of Buddhi Raj Limboo. He further admitted that Exhibit 4/A, the attested copy regarding verification of Birth Certificate of the Defendant, issued by the Principal of the concerned Government Senior Secondary School does not say that the Defendant is not the son of Buddhi Raj Limboo. Pertinently it may be noticed that the Principal who issued Exhibit 4/A was not produced by the Plaintiffs as a witness. PW3 has given no evidence with regard to either the Partition Deed Exhibit 11 or Exhibit A and Exhibit B.
18. Plaintiffs' witness No.4 Padam Lall Limboo is the third son of late Thabgo Limboo and the grand uncle of the Plaintiffs hence he claimed to be conversant with the facts and circumstances of the case. Exhibit 11 according to him, was scribed by one Jas Bahadur Subba, a co-villager. Pausing here for a moment it is relevant to notice that PW2 Buddhi Lall Limboo is unaware of the scribe and although PW4 names the scribe, he was not produced before the Court as a witness. The witness is unaware as to whether the scheduled property was acquired by his father or was ancestral, suffice it to say that no document of the Plaintiffs sheds light on this aspect including Exhibit 11 or Exhibit 12 Khatiyan Parcha in the name of Thabgo Limboo. According to him, their respective shares of the partitioned property was mutated in their names sometime in the year 2013-14. However, if we are to revert to the evidence of Plaintiff No.1 he has stated categorically that the ancestral properties have not been mutated in the respective names of his uncles Buddhi Lall Limboo and Dhan Raj Limboo. PW4 shed no light on Exhibit A and Exhibit B.
19. The Defendant, to substantiate his claims relied on Exhibit A, “Bandabast Patra” dated 20.12.2008 and Exhibit B, “Bandabast Patra” dated 14.11.2010. He has denied having submitted a letter to the Principal of the Government Senior Secondary School, Hee Yangthang, West Sikkim being Exhibit 4/B. Relevantly, it may be noted that although the Plaintiff No.1 furnished Exhibit 4/B as a copy of the said letter written by the Defendant to the Principal, Government Senior Secondary School, Hee Yangthang, West Sikkim but the document remained unproved. His deposition was that Exhibit 11 is not binding upon him being a fabricated document besides which his father was not given a share. His possession over the suit property consequent upon the execution of Exhibit A and Exhibit B by PW2 and Dhan Raj Limboo has not been decimated in cross-examination. The Defendant’s witness Sudesh Kumar Subba (DW2) served as the Panchayat Secretary of 22 Hee Gram Panchayat from the year 2007 to 2012 and although an effort was made to demolish this aspect, the fact was supported by the evidence of Plaintiff No.1 himself, according to whom Sudesh Kumar Subba was the Panchayat Secretary during 2008 and 2010. DW2 testified that PW2, Dhan Raj Subba and the Defendant had approached him as they had agreed to draw up an agreement amongst themselves. Accordingly on 20.12.2008 he prepared Exhibit A. He failed to recall the contents of Exhibit A but the fact that he prepared both the documents Exhibit A and Exhibit B remained uncontroverted. According to him, he had then read over the contents of Exhibit A and Exhibit B to both PW2 Buddhi Lall Subba and Dhan Raj Subba on which they signed. DW3 Ran Bahadur Subba witness to the execution of Exhibit B while substantiating the foregoing evidence, identified it as the document prepared by Sudesh Kumar Subba DW2, the contents of which were read over to the three brothers being Buddhi Lall Limboo, Dhan Raj Limboo and the Defendant, whereupon all of them affixed their signatures in his presence and of their own free will and consent. He denied the suggestion that the signatures of Dhan Raj Limboo and Buddhi Lall Limboo which were affixed in his presence were forged signatures. He shed no light on Exhibit 11. He was unaware of the possession of a COI by the Defendant’s father but asserted that the Defendant’s COI was cancelled by the authority. No grounds for such cancellation were detailed.
20. The legality of Exhibit 11, the alleged Partition Deed is now to be examined. Admittedly, this is an unregistered document. The Sikkim State General Notification No.385/G provides as follows;
Notification No. 385/G;
All Kazis, Thikadars and Managers of Estates.
In continuation of the previous rules on the subject, His Highness the Maharaja of Sikkim is pleased to order that the Law of Registration applicable in the State shall be amended. Notification No. 314 and 2283-36/G., dated the 23rd January, 1907 and 19th July, 1922, respectively shall be read and applied as under:
“Any document such as mortgage and sale deeds, and other important documents and deeds, etc. will not be considered valid unless they are duly registered.
The contents of an unregistered document (which ought in the opinion of the court to have been registered) may be provided in court but a penalty upto fifty times the usual registration fee shall be charged.
Exception:- Handnotes duly stamped shall be exempt from registration penalty”.
BY ORDER OF HIS HIGHNESS THE MAHARAJA OF SIKKIM
The 11th April, 1928
General Secretary to
H.H. the Maharaja of Sikkim.”
Thus the Notification supra makes it clear that it is not only Title Deeds that are to be compulsorily registered but any “important document.” The said Notification while indicating that other important documents will not be considered valid unless they are duly registered does not define what are “important documents.” The term “important documents” is indeed a relative term. Consequently in the absence of definition of the term, we may seek guidance from the provisions of Section 17 of the Registration Act, 1908, which enumerates documents which are compulsorily to be registered and at Section 17(1)(b) it is detailed as follows;
“17. Documents of which registration is compulsory.-(1)
(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; …”
21. Taking assistance from this provision it emerges with clarity that Exhibit 11 being a Partition Deed would necessarily have to be registered, as also Exhibit A and Exhibit B. Undoubtedly a partition, as held by the learned trial Court, can be verbal and has legal validity but of course when contested or controverted before a Court of law the difficulty of proof arises. A Partition Deed is essentially executed to divide property amongst family members so that each person entitled to a share is allotted the same. It is clear that Exhibit 11 was sought to be filed before the Court by the Plaintiffs only on 08.07.2016 almost one and a half years subsequent to the filing of the instant Suit, being Title Suit No.06 of 2014. Exhibit 11 “Banda Patra” dated 12.03.1988 is alleged to be the document vide which the properties described therein including the plot number in dispute i.e. 534 was partitioned by Thabgo Limboo. The attesting witnesses to the documents allegedly were one Ganga Ram Limboo, Jas Bahadur Subba, Man Dhoj Limboo and Mangla Dhoj Limboo. The reason for calling an attesting witness is that he is witness to the execution of the document and would vouch for its truth. However none of these attesting witnesses were produced by the Plaintiffs to prove execution of the document contrary to the provisions of Sections 67 and 68 of the Indian Evidence Act, 1872 (for short the “Evidence Act”). It emanates from the evidence of PW2 Buddhi Lall Subba that Ganga Ram Limboo one of the witnesses to the execution of Exhibit 11 has passed away but he failed to recount the position with regard to the other attesting witnesses. According to PW4 Padam Lall Limboo, the document was scribed by J.B. Subba. The name of one Jas Bahadur Subba appears as a witness on Exhibit 11. Even assuming that Jas Bahadur Subba or J.B. Subba the alleged scribe of the document are different persons, neither were called by the Plaintiffs to establish the contents of Exhibit 11. In other words, none of the attesting witnesses to Exhibit 11 or its scribe were called by the Plaintiffs to prove execution and contents of the document as required by law nor their fate discussed prompting this Court to draw an adverse inference under illustration (g) of Section 114 of the Evidence Act. It is admitted by PW2 Buddhi Lall Subba that Exhibit 11 was given to him for safe keeping by his grandfather Thabgo Limboo. It is also admitted by him that he had filed Exhibit C, his Written Statement in Title Suit No.07 of 2012 in the Court of the learned District Judge, (South and West) Sikkim at Namchi but even in the said Civil Suit, he failed to furnish Exhibit 11 to establish partition. Admittedly, that Civil Suit was withdrawn and the instant Civil Suit being Title Suit No.06 of 2014 filed at which time also Exhibit 11 continued to be in his possession but Buddhi Lall Limboo chose to keep Exhibit 11 under wraps and not to disclose its existence or contents to the Plaintiffs who were evidently unaware of it. PW4 Padam Lall Subba claimed to be present when Exhibit 11 was prepared and stated that a share for his elder brother Buddhi Raj Limboo was also set aside when the document was prepared but retracted the statement by deposing that as the whereabouts of Buddhi Raj Limboo was not known, his share was not set aside. From the evidence on record Exhibit 11 appears to have sprouted rather belatedly and with startling suddenness in the matter and the circumstances surrounding its production renders it a suspicious document, fit for exclusion from consideration. There are no independent witnesses to its execution to vouch for its contents besides PW2 Buddhi Lall Limboo an interested witness. Although it is now established law that merely because a witness is interested his evidence cannot be brushed aside, however evidence of such a witness must be cogent, consistent and reliable. The evidence of PW 2 when gauged on these principles is palpably unreliable, vexed as it is with contradictions as already discussed supra. Exhibit 11 therefore suffers from the defect of being an unregistered document, its contents unproved, compounded by the failure of the Plaintiffs and their witnesses to establish the whereabouts of the attesting witnesses to prove execution or contents of the document. The circumstances surrounding the emergence of Exhibit 11 into the Suit rather belatedly and for the reasons supra, the document is rendered suspicious and fit for exclusion from consideration. So far as its applicability to the Defendant is concerned, we may refer to Parvinder Singh v. Renu Gautam and Others (2004) 4 SCC 794) wherein it was held that the rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. Nevertheless, a stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. At the same time it is worth mentioning that the learned trial Court took into consideration Exhibit 11 in its entirety despite absence of proof of its execution. This document is clearly an afterthought and prepared for the purposes of this case as already stated and lends no support or credence to the Plaintiffs’ Suit. Even if its non-registration is factored out based on the consideration that it is an alleged family settlement, it still suffers from the defects enumerated above and thus requires no consideration.
22. On the other hand, the execution of Exhibit A and Exhibit B has been established by the Defendant, DW2 Sudesh Kumar Subba and also obtained support from the evidence of the Plaintiff No.1 himself as also PW2 Buddhi Lall Limboo who has admitted that he had acknowledged executing Exhibit A in favour of the Defendant in Exhibit C. Although Exhibit A and Exhibit B may suffer from the same defect of non-registration, however the contents thereof have been proved as also admitted by the evidence of PW1 and PW2 themselves fulfilling the requirements of Section 58 of the Evidence Act. In this context, reference is made to Thulasidhara & Another v. Narayanappa & Others (2019) 6 SCC 409) wherein it was held thus;
“9.4. …The High Court has refused to look into the said document and/or consider document dated 23-4-1971 (Ext. D-4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in Kale [Kale v. Director of Consolidation, (1976) 3 SCC 119] that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. …………
9.5. As held by this Court in Subraya M.N. [Subraya M.N. v. Vittala M.N., (2016) 8 SCC 705 : (2016) 4 SCC (Civ) 163] even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23-4-1971 and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the plaintiff that there was an oral partition on 23-4-1971, the document, Ext. D-4 dated 23-4- 1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Ext. D-4 dated 23-4-1971. …………”
The circumstances pertaining to Exhibit A and Exhibit B are similar to the circumstances discussed in the ratio supra and thereby sets to rest the legal position of Exhibit A and Exhibit B. The documents are found to be genuine and executed by PW2 and Dhan Raj Subba.
23. So far as the question of cancellation of the COI of the Defendant is concerned, the reason for cancellation as given in Exhibit 3 is “False Birth Record.” The order is indeed cryptic. The cancellation order does not deny the Defendant’s paternity. The evidence of the Plaintiff No.1, no less, establishes that Buddhi Raj Limboo had on his arrival to Sikkim brought along with him his second wife and the Defendant and informed his family that the Defendant was his son from his second marriage. This has not been demolished under cross-examination. DW2 Sudesh Kumar Subba the Panchayat Secretary serving the Government would have to be given his due considering that on oath he has deposed the fact of execution of Exhibit A and Exhibit B supported by the evidence of DW3. Admittedly from 2004 Buddhi Raj Limboo came to Sikkim and continued to live with the Defendant till his death in 2013. It is rather incongruous that Exhibit 11 was never mentioned to Buddhi Raj Limboo by his three sons till his demise and it was only in 2014, the property of Plaintiff No.1 came to be recorded hurriedly in his name on 21.08.2014 (Exhibit 1) after the first Title Suit was withdrawn. The registration was evidently carried out with a view to strengthen the Plaintiffs’ case. The funeral and death rites of deceased Buddhi Raj Limboo
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was completed by the Defendant without any objection from his uncles Buddhi Lall Limboo and Dhan Raj Limboo indicating an acceptance of the Defendant as the son of Buddhi Raj Limboo. In any event, at no stage when Buddhi Raj Limboo was alive did Buddhi Lall Limboo and Dhan Raj Limboo or for that matter the Plaintiffs ever question the identity or lineage of the Defendant. The entire decision of the learned trial Court pivots around the failure of the Defendant to establish his possession of any Certificate of Identification. The learned trial Court held that the Defendant failed to produce any other document to show how he would be entitled to hold landed property in the State of Sikkim and that his witnesses and the witnesses of the Plaintiffs have stated that they have no idea where he was born and brought up. In this context, it is alarming that the learned trial Court has completely disregarded the evidence of the Plaintiff No.1 himself to the effect that Buddhi Raj Limboo had told them that the Defendant was his son. The learned trial Court also failed to consider the admission that the deceased Buddhi Raj Limboo continued to live with the Defendant with no questions asked. The learned trial Court has not considered the utterly suspicious circumstances of Exhibit 11, its belated entry in the matter and absence of attesting witnesses or its scribe. The contents of Exhibit A and Exhibit B reveal acceptance of the Defendant as the younger brother of Buddhi Lall Limboo and Dhan Raj Limboo by themselves. The contents of the documents have to be read and interpreted in its entirety and not piecemeal depending on its suitability to the Plaintiffs and PW2. The Defendant, according to the learned trial Court, did not challenge the records of the suit property in the name of the Plaintiff No.1, however it would be worthwhile noticing that the Plaintiff No.1 himself has admitted that the Defendant was ignorant of the transfer and had no opportunity to object to it. It may also relevantly be noted that the sister of the Plaintiffs Binita Limboo was being taken care of by the Defendant after the death of their father, while Bhim Lall Limboo took the Plaintiff No.1 under his care and Dhan Raj Limboo took the Plaintiffs' other sister Manita and the Plaintiff No.2. Had the Defendant not been the uncle of Binita Limboo and a blood relation the responsibility would neither have been shared nor befallen on him. The learned trial Court was rather concerned about the whereabouts of the Defendant prior to 2004 although the Plaintiff No.1 has admitted that Buddhi Raj Limboo was out of the State and returned home in 2004 along with the Defendant and his mother Jasmaya Limboo. According to the learned trial Court, the Defendant did not offer to name the School or Schools attended by him. In my considered opinion, this is not even relevant to the Issues at hand besides which in cross-examination the Plaintiffs did not seek to extract any such answers from him. So far as his Certificate of Identification is concerned, unless the entire facts with regard to furnishing false records are placed before any trial Court and what the false records contained and comprised of, the Courts cannot jump to assumptions and conclusions. The property was never transferred from the name of late Thabgo Limboo to his sons but suspiciously only plot No.534 came to be recorded in the name of the Plaintiff No.1 which therefore reeks of foul play. The argument of learned Senior Counsel for the Plaintiffs that the order of the authority cancelling the COI has attained finality holds no water since the paternity of the Defendant and rights accruing consequently cannot be denied. 24. In the end result on consideration of the evidence on record and the discussions that have emanated hereinabove it concludes that the Defendant (Appellant) is the grandson of late Thabgo Limboo being the son of late Buddhi Raj Limboo through his second wife. Exhibit 11 is evidently a document propelled by avarice and warrants no consideration by this Court for reasons already discussed. The property of late Thabgo Limboo remained unmutated in the name of any person except for plot No.534 in the name of the Plaintiff No.1 (Respondent No.1.). The Defendant nevertheless claims only a portion of land of which he is in possession measuring 25 feet x 45 feet, in plot No.593 vide Exhibit A, “Bandabast Patra” dated 20.12.2008 and Exhibit B, “Bandabast Patra” dated 14.11.2010, the land being butted and bounded as described in the Counter Claim. For the aforestated reasons it is found that the Defendant is in possession of the land supra, he is entitled to take steps to register it in his name. The recording of the said property in the name of the Plaintiff No.1 is consequently liable to be cancelled. 25. The Appeal is accordingly allowed. 26. The Judgment and Decree of the learned Trial Court is set aside. 27. Parties shall bear their own costs. 28. Records of the learned Trial Court be remitted forthwith.