The court established that a plaintiff's knowledge of property encroachment is critical in determining the limitation period for filing a suit, and such knowledge must be substantiated by evidence.

JUDGMENT

Meenakshi Madan Rai, J. - Appellant is aggrieved by the Order dated 31-10-2019, of the Court of the Learned District Judge, Special Division -I, East Sikkim, at Gangtok, in Title Appeal No.03 of 2019 (Sarad Ghaley vs. Chewang Lhamu Bhutia and Others).

(i) Relevantly, it may be mentioned that the Learned First Appellate Court considered an Appeal preferred before it, against the Order dated 12-03-2019, of the Court of the Learned Civil Judge, East Sikkim, at Gangtok, in Title Suit No.01 of 2018 (Sarad Ghaley vs. Chewang Lhamu Bhutia and Others), which had rejected the Plaint of the Appellant herein, on an application filed by the Respondent No.2, under Order VII Rule 11, read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter, the 'CPC'). The Learned First Appellate Court upheld the Order of the Learned Trial Court. Assailing the Order of the Learned First Appellate Court, the Appellant is before this Court.

2. This Second Appeal was admitted on the following substantial question of law;

'Whether the plaintiff has rightly been non suited by the Courts below on the ground of limitation in the facts of the present case, however (sic., or whether), the judgment and decree passed by the Courts below are in accordance with law?'

3. The facts as per the Appellant are summarized hereunder;

(a) The great grandfather of the Appellant, late Dilu Singh Ghaley, purchased landed property located at Kazi Road, Gangtok, East Sikkim, on 01-02-1924 from one Gorey Singh Subedar Lepcha, duly executing a 'Rajinama' which described the property and its boundaries.

(b) The boundaries inter alia were as follows;

One side of the boundary extended towards the house of Dawa Sherpa Babu and Dhan Bir Babu, upwards to the house of Dorjee Bhotey and to the bamboo groove of Dakiya Muktiyar.

(c) The mother of the said Dawa Sherpa Babu, the boundary holder (supra), sold the landed property of her son bearing plot no.497 measuring 0.07 acres, to one Anand Bahadur Pradhan on 02-04-1949.

(d) Anand Bahadur Pradhan transferred the same property, i .e., plot no.497 measuring 0.07 acres on 10-12-1972, to one Chimi Lhamu Bhutia.

(e) On 28-05-1973 Chimi Lhamu Bhutia sold a portion of plot no.497, i.e., an area of 0.0337 acres, equivalent to 1470.46 sq. ft. to the Respondent No.3.

(f) The ancestral property registered on 07-03-1991 in the name of Jit Bahadur Ghaley, son of late Dilu Singh Ghaley, showed four plots of land bearing nos.496, 1229, 1237/ 1442 and 1230, measuring a total area of 0.41 acres.

(g) The Respondent No.3 on 10-02-1997 sought mutation of plot no.497 in his name, which was objected to by the three legal heirs of Dilu Singh Ghaley, namely, Randhir Singh Ghaley, Ranjan Ghaley and Uljhan Ghaley, vide written objection, dated 31-03-1997.

(h) That consequent site inspection and spot verification of the land holding of the Respondent No.3, as per notings in the report dated 23-04-1997, showed his landed property to be 6192 sq. ft., equivalent to 0.14 acres, instead of an area of 0.0337 acres equivalent to 1470.46 sq. ft. as purchased by him, from Chimi Lhamu Bhutia on 28-051973.

(i) In the year 2001, a partition of the ancestral property of the Appellant and his siblings was effected, where the Appellant was given a share in plot no.1229. Some portion of the ancestral property remained in the name of their grandfather Jit Bahadur Ghaley and has not been partitioned. Pursuant to the partition, plot no.2059/1229 was allotted to the Appellant's share of land, measuring an area of 0.02 acres, duly mutated in his name on 31-08-2001.

(j) The Revenue Authorities meanwhile registered the landed property bearing plot no.497, in the name of the Respondent No.3.

(k) On a spot verification on 22-04-2006, which arose on account of a dispute between one Shanti Pradhan and the Appellant's brother Nirmal Prasad Ghaley, it emerged that plot no.497, with an area of 0.07 acres, stood recorded in the name of Anand Bahadur Pradhan, son of Laxmi Prasad Pradhan, in the G