The burden of proof lies with the party asserting a legal right or liability dependent on the existence of facts. The court may permit additional evidence to address lacunae in the evidence, as prescribed under Order XLI Rule 27 of the Code of Civil Procedure.

PERMOD KOHLI, J.

This Regular First Appeal arises out of Judgment and Decree dated 28-02-2011 passed in Civil Suit No. 5 of 2010 by the learned District Judge, Special Division II, East Sikkim at Gangtok, dismissing the suit filed by the plaintiffs-appellants herein for declaration, recovery of possession and consequential reliefs.

2. The brief and relevant facts leading to the filing of the present appeal are recapitulated hereinafter.

3. Parties to the suit are relations. The following pedigree depicts the interrelation between the parties :

(See Table on next page)

4. It is the common case of the parties that the suit property was owned by late Athup Tshering Lepcha, father of Late Nochi Tongden Lepcha, father of Defendant and Late Rinzing Tongden Lepcha, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 and 3. The plaintiffs case, as projected in the suit, is that late Athup Tshering Lepcha, who was the absolute owner of the cardamom field bearing plot Nos. 71 and 76, during his lifetime gifted the suit land to his son Rinzing Tongden Lepcha by way of an oral gift as was prevalent during that period. Rinzing Tongden Lepcha, thus became the absolute owner of the property i.e. land measuring 5.2300 Hectares. It is further stated that Rinzing Tongden Lepcha died on 09-01-1996 leaving behind the plaintiffs as his legal heirs and successors. It is further alleged that his name is still recorded in the records of rights maintained in the office of the District Collector, Mangan, North Sikkim. Two plots, bearing plot Nos. 71 and 76 later came to be recorded into one plot bearing plot No. 80 in the revenue records. The plaintiffs further assertion is that late Rinzing Tongden Lepcha out of love and affection had left the suit land in the care of his brother Nochi Tongden Lepcha who predeceased Rinzing Tongden Lepcha and after the death of Nochi Tongden Lepcha his son Passang Tongden Lepcha, i.e. the defendant, became the caretaker of the suit land on behalf of the plaintiffs. It is further stated that plaintiff No. 3 for and on behalf of all the plaintiffs filed an application dated 07-06-2002 before the District Collector, North for the mutation of the suit land in the name of the plaintiffs for which a notice was issued inviting objections from the public. The defendant objected to the mutation claiming the entire suit land by virtue of a Partition Deed dated 10-06-1971. The S.D.M., Mangan after hearing both the parties advised them to approach the appropriate Court for settlement of the title over the suit property. It is under these circumstances, the plaintiffs filed the present suit.

5. The defendant contested the suit claiming that the suit property came to the share of late Nochi Tongden Lepcha, father of defendant and Rinzing Tongden Lepcha, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 and 3 by virtue of Partition Deed of 1955 (Annexure A-1). The predecessors of the parties thus became co-sharers of suit property. It is further alleged that suit property further fell in the share of late Nochi Tongden Lepcha, his father, on the basis of the Partition Deed dated 10-06-1971 executed between the Nochi Tongden Lepcha and Rinzing Tongden Lepcha. It is further stated that the property was further partitioned between the defendant, his two brothers and two sisters, i.e. the sons and daughters of late Nochi Tongden Lepcha by virtue of another Partition Deed dated 09-11-1991. He also raised various pleas including the limitation.

6. On the basis of the pleadings of the parties, the trial Court framed following issues, vide its order dated 07-08-2004 :

ISSUES

1. Whether the suit land belongs to late Rinzing Tongden, husband of the plaintiff No. 1 and the father of plaintiff Nos. 2 and 3 who got the suit land from late Athup Lepcha.

2. Whether the suit land belonged to late Nochi Tongden, father of defendant and late Rinzing Tongden, the husband of plaintiff No.1 and father of plaintiff Nos. 2 and 3 jointly till 1