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2020 Supreme(Sikk) 26
IN THE HIGH COURT OF SIKKIM : GANGTOK
MEENAKSHI MADAN RAI, J.
Nil Kumar Dahal and Another - Appellants
Versus
Indira Dahal and Others - Respondents
RFA No.10 of 2017
Decided On : 12-11-2020
For the Appellant :Mr. A. Moulik, Senior Advocate with Ms. K.D. Bhutia and Mr. Ranjit Prasad, Advocates
For the Respondent:Mr. Jorgay Namka, Mr. Sudesh Joshi, Additional Advocate General with Mr. Sujan Sunwar and Mr. Hissey Gyaltsen, Assistant Government Advocates, Ms. Kunzang Choden Lepcha and Ms. Neetu Tamang, Advocates
Headnote:
The Plaintiffs, blood brothers, filed a Suit for declaration, recovery of possession, injunction and other consequential reliefs, against the Respondents No.1 to 4 herein, who were the Defendants No.1 to 4 in the said Title Suit. The dispute between the parties pivots around the “jiwni” land described in the Schedule to the Plaint, kept aside by their late father from the ancestral properties, for his upkeep and sustenance during his lifetime at Raley Block, East Sikkim, after partitioning the ancestral properties amongst his sons. By the “banda patra” (“Partition Deed”), Exhibit “A,” their father devised dual conditions for the “jiwni” land to be passed on to his sons i.e. “father’s “jiwni” share would go to the son who would look after and perform death rites.” On his passing on 23.09.2001, the Plaintiffs and the father of the Defendant No.4, each laid claims to the said “jiwni” land on grounds that each of them fulfilled the conditions laid out in Exhibit “A.” Defendant No.1, for her part, while denying governance by the Mitakshara School of Hindu Law, claims the property on grounds that she has been in unencumbered physical possession of the property since the execution of Exhibit “A” and exercising all rights over it as its owner, sans interference from any quarter.
Fact of the Case:
The Plaintiffs, blood brothers, filed a Suit for declaration, recovery of possession, injunction and other consequential reliefs, against the Respondents No.1 to 4 herein, who were the Defendants No.1 to 4 in the said Title Suit. The dispute between the parties pivots around the “jiwni” land described in the Schedule to the Plaint, kept aside by their late father from the ancestral properties, for his upkeep and sustenance during his lifetime at Raley Block, East Sikkim, after partitioning the ancestral properties amongst his sons. By the “banda patra” (“Partition Deed”), Exhibit “A,” their father devised dual conditions for the “jiwni” land to be passed on to his sons i.e. “father’s “jiwni” share would go to the son who would look after and perform death rites.” On his passing on 23.09.2001, the Plaintiffs and the father of the Defendant No.4, each laid claims to the said “jiwni” land on grounds that each of them fulfilled the conditions laid out in Exhibit “A.” Defendant No.1, for her part, while denying governance by the Mitakshara School of Hindu Law, claims the property on grounds that she has been in unencumbered physical possession of the property since the execution of Exhibit “A” and exercising all rights over it as its owner, sans interference from any quarter.
Finding of the Court:
The Court held that the Plaintiffs and late Bal Krishna are entitled to an equal share each of the “jiwni” land of late Devi Prasad as described in the Schedule to the Plaint and are also entitled to take steps with regard to their respective shares. Defendant No.4 being the daughter of Bal Krishna would be entitled to his share of the “jiwni” property.
Issues: 1. Whether the Mitakshara School of Hindu Law was applicable to the Plaintiffs?;2. Whether the Plaintiffs have right, title and interest in the suit property i.e., ‘jiwni land’ being plot No.450?;3. Whether the Plaintiffs are entitled to recover the suit land i.e. the ‘jiwni land’ from the possession of the Defendant No.1?;4. Whether the ‘jiwni land’ can be mutated in the name of the Defendant Nos.1 and 4?;5. Whether the Defendant Nos.1 and 4 are entitled to any share in the ‘jiwni land’ as per ‘banda patra’ dated: 17.05.1985?;6. Whether the Defendant Nos.1 and 4 have already got their shares as per ‘banda patra’ dated 17.05.1985?;7. Whether the Plaintiffs have looked after and performed the death rites of the late Devi Prasad Dahal?;8. Whether Devi Kala Sharma has right to act as a guardian of the minor i.e. Defendant No.4 in force of Guardianship Certificate?;9. Whether Devi Kala Sharma has obtained the guardianship certificate fraudulently?;10. Whether the Defendant No.1, being the wife of Late Devi Prasad Dahal have (sic) any right, title and interest over the property recorded in the name of Late Devi Prasad Dahal?;11. To what relief or reliefs, if any, are the Plaintiffs entitled?
Ratio Decidendi: The Court held that the Plaintiffs and late Bal Krishna are entitled to an equal share each of the “jiwni” land of late Devi Prasad as described in the Schedule to the Plaint and are also entitled to take steps with regard to their respective shares. Defendant No.4 being the daughter of Bal Krishna would be entitled to his share of the “jiwni” property.
Final Decision: Appeal allowed to the extent above and disposed of accordingly. Pending applications, if any, also stand disposed of.No order as to costs.Copy of this Judgment be sent to the learned trial Court for information.Records of the learned trial Court be remitted forthwith.
JUDGMENT :
Meenakshi Madan Rai, J.
1. The Appellants were the Plaintiffs before the learned trial Court, in Title Suit No.08 of 2011 (Nil Kumar Dahal and Another vs. Indira Dahal and Others), a Suit for Declaration, Recovery of Possession, Injunction and other Consequential Reliefs, against the Respondents No.1 to 4 herein, who were the Defendants No.1 to 4 in the said Title Suit. The learned trial Court on consideration of the evidence and all materials on record dismissed the Suit of the Appellants, by the impugned Judgment, dated 26.07.2017. Dissatisfied thereof this Appeal has arisen.
2. Parties shall hereinafter be referred to in their order of appearance before the learned trial Court.
3. The Plaintiffs are blood brothers being the sons of one Devi Prasad Dahal. The Defendant No.1 is their step mother and the Defendant No.4 is their niece, being the daughter of their deceased step brother, Bal Krishna Dahal, the son of Defendant No.1 and the Plaintiffs’ father. Defendant No.4 is represented by her guardian Devi Kala Sharma. Defendants No.2 and 3 are Government officials inter alia concerned with registration of land. The Plaintiffs claim to be governed by the Mitakshara School of Hindu Law. The dispute between the parties pivots around the “jiwni” land described in the Schedule to the Plaint, kept aside by their late father from the ancestral properties, for his upkeep and sustenance during his lifetime at Raley Block, East Sikkim, after partitioning the ancestral properties amongst his sons. By the “Banda Patra” (“Partition Deed”), Exhibit “A,” dated 17.05.1985, their father devised dual conditions for the “jiwni” land to be passed on to his sons i.e. “father’s “jiwni” share would go to the son who would look after and perform death rites.” On his passing on 23.09.2001, the Plaintiffs and the father of the Defendant No.4, each laid claims to the said “jiwni” land on grounds that each of them fulfilled the conditions laid out in Exhibit “A.” Defendant No.1, for her part, while denying governance by the Mitakshara School of Hindu Law, claims the property on grounds that she has been in unencumbered physical possession of the property since the execution of Exhibit “A” and exercising all rights over it as its owner, sans interference from any quarter.
4.(i) Undisputedly, the property is ancestral having belonged to the Plaintiffs’ great-grandfather, one Parmananda Bahun. He had three sons Bishnu Lall (grandfather of the Plaintiffs), Purananda and Lok Nath. Bishnu Lall and Lok Nath passed away before the properties could be partitioned, Lok Nath having died issueless, as a result, the properties came to be partitioned amongst the four remaining sons of Bishnu Lall (out of his five sons) and Purananda Bahun. One of the sons of Bishnu Lall was their father Devi Prasad.
(ii) According to the Plaintiffs, on 26.03.2010, the Defendant No.1, who also allegedly maintains her Nepalese citizenship, filed an application before the District Collector (Defendant No.2), East Sikkim, seeking mutation of the “jiwni” land to her name from that of Devi Prasad. Despite objections raised by the Plaintiffs, by the impugned Order dated 03.11.2010, the Defendant No.2, allowed mutation of the “jiwni” land in the name of Defendant No.1 and ordered that Plots bearing No.450 and 452 measuring an area of 0.3050 hectares at Raley Khesey Block, be mutated in the name of the Defendant No.1 although Plot No.452 was already mutated in the name of the Plaintiff No.2, as his share, vide Exhibit “A.” That, the Order lacked jurisdiction as the Defendant No.2 was not vested with powers to decide Title disputes and exhibited lack of application of mind for ordering mutation of Plot No.452 in the name of the Defendant No.1. That, as the Plaintiffs have fulfilled the dual conditions laid down in Exhibit “A,” they are entitled to the “jiwni” land to the exclusion of Defendant No.1 and Defendant No.4, the latter allegedly having no locus to claim a share in the testamenta
