An appellate court cannot grant a declaration of title to a respondent in the absence of a filed counterclaim or specific prayer for such relief. Furthermore, secondary evidence and property documents must be strictly proven regarding execution for them to establish legal title.

JUDGMENT :

Bhaskar Raj Pradhan, J.

1. Krishna Bahadur Chettri and five others (the appellants) have preferred a second appeal under section 100 of the Code of Civil Procedure, 1908.

2. The provision reflects that an appeal shall lie to this Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is “satisfied that the case involves a substantial question of law”.

3. The sole respondent is Rameshwar Mandir Committee represented by its President. The appellants had filed a declaratory suit No.18 of 2016 (the suit) against the respondent. For the purpose of this appeal the parties shall be referred to as the plaintiffs and the defendant hereinafter.

4. The plaintiffs’ case in short was that they were the heirs of late Harka Maya Chettri who owned the suit land purchased in the year 1963 from one Kul Bahadur Tamang through a registered sale deed. They asserted that late Harka Maya Chettri was the grandmother of plaintiff nos. 2 to 4 and mother of plaintiff nos. 1 and 5. In the cause title the plaintiff no.1 is reflected as son of late John Jackson. Plaintiff nos. 2 to 5 are reflected as sons of late Harka Bahadur Chettri and plaintiff no. 6 is reflected as wife of late Harka Bahadur Chettri and daughter of late Harka Maya Chettri. They claimed that neither late Harka Maya Chettri nor her husband late John Jackson had parted with the suit land during their lifetime. However, the plaintiffs could not locate the sale deed or the property papers in their ancestral house until in proceedings relating to R.F.A. No.06 of 2015 the defendant filed the sale deed. It was then the plaintiffs realized that the sale deed and other property papers relating to the suit land were with the defendant and alleged that the defendant had by some illegal and surreptitious means, taken the sale deed.

5. The plaintiffs stated that they filed the suit when the defendant started claiming the suit land to be theirs. The plaintiffs asserted that there was no partition between the parties and the suit land is still the joint and undivided property under common enjoyment of the plaintiffs. The plaintiffs sought to rely upon purported certified copies of the registered sale deed of 1963 and the parcha khatiyan in the name of the plaintiffs. On such pleadings the plaintiffs prayed for:-

(a) A decree confirming right, title and possession of the plaintiffs with respect to the suit land.

(b) A decree declaring that the defendant has got no right, title and interest in and over the lands belonging to late Harka Maya Chettri and is nothing but a rank tresspasser.

(c) A decree declaring that the record of rights showing the suit land recorded in the name of the defendant is bad in law, void ab initio, illegal and be set aside and or cancelled.

(d) A decree for permanent injunction restraining the defendant and their men and agents from disturbing the possession and enjoyment of the suit land by the plaintiffs.

(e) A decree for the costs of the suit, and for

(f) A decree for any other relief or reliefs to which the plaintiffs may be found entitled to under law.

6. The defendant in its written statement took various legal objections on the maintainability of the suit. They asserted that in fact late Harka Maya Chettri had alienated the suit land to the defendant in the year 1965 and therefore, the parcha khatiyans prepared after the survey of 1950-52 and thereafter, in 1980-82 reflects the name of the defendant as the owner of the suit land. The defendant claimed to have regula