RFA/8/2000 of Bir Bahadur Rai Vs Aringdas Rai on 27 September 2000

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IN THE HIGH COURT OF SIKKIM

R.F.A. No. 8 of 2000

DateofDecision:27thSeptember2090.

Bir Bahadur RaiResident of uttar Regu BustyPost Office and Police StationRangli, in the East Districtof sikkim.

Appellant/Defendant.

VERSUS

Aringdas Raison of Late Charandas Ratresident of Dalepchand BustyPost Office and Police StationRangli in the East District ofSikkim.

Respondent/Plaintiff.

Coram :

The Hon'ble M. Justice Anup Deb2 Judge.

Present: Mr. N.B. Kharga, Advocate for the appellant.M. A. Moulik, Advocate for the respondent.

JUDGRENT

DEB. J.

This appeal is directed against the jndgmept and decree passed bythe Civil Judge, East Silckin at Gangtok on 30th October 1999 in CivilSuit No. 14 of 1985 by which the Suit was decreed in favour of the€/`.respondent-plaintiff.

2. The fact of the case as set out in the plaint is that the suit propertybelonged to one `.RIld Dhan who had two sons Rajman and Chandras.Rajman died in 1933. Chandradas died in 1943. Rajman had one sonPadan Dhoj and one daughter Dhanrupi. Chandradas had only one sonAringadas who is the plaintiff in the suit and respondent in the appeal.

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Dharmpi died issueless. Padam Dhoj left his house around in the year1955 and since then there is no trace of his existence. Respondent-plaintiff s case is that Rj]d Dhan was the owner of the properdesmentioned in Schedule-`M'. Since Dhanrupi died issueless and PadanDhoj has sustained civil death because of being traceless for over 30years, the other half of the `M' schedule properdes devolved upon therespondent-plaintiff who thus became the owner of the suit property. `M'schedule properties have been broken up to Schedule `A' to `K'.Properties mentioned in Schedule `A' was in occupation of one ChandraBahadur tin 1970 as Adhiyar. Thereafter, Bir Bahadur Rai, appellant who``,is deft;ndant rio. 1 in the Suit has been inducted in those properties by therespondent as Adhiyar under bin. Schedule `A' comprises three plotsbeing Nos. 102 to 104. A house was existing in a portion of plot No.102where the appellant was permitted to reside. The said house was, aftersometime, demolished by the appellant who constructed a new housethereon. Respondent-plaintiff objected to it. The appellant alsocommitted theft of cardanom fruits. Respondent drew the attention of the •..,:'\ .--`

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Panchayat -land throuch their intervention the matter was settled.Ultimately, the appellant filed a petition, being Misc. Case No. 78 of1981, before the Prescribed Authority. As tits decision on 9th February,1984 went against the respondent, he filed wit petition No. 13 of 1984wliich was disposed of on 16th March 1985 with the observation that since}the appellant was in possession of the same land the respondent shouldnot dispossess him without taking recourse to the procedure establishedby law. The respondent filed the present suit in the year 1985 praying fora decree for declaration of his right title and interest over `M' Schedule oflands, for permanent injunction against Bin Baliadur Raiappellanrfu6fen'dant No. 1 restraining bin from disturbing peacefulpossession of the respondent/plaintiff over Schedule `A' lands and alsofor recovery of possession of Schedule A lands by evicting theappellant/defendant No. 1 therefrom. The schedule `A' land set out in theplaint reads as follows: - "All that entire plots of land comprising of dy and cardamomfields situated at Block Uttar Rigu, Elaka RIgu District East :.-i::-.-,...--.

Sikkim falling under Khasra No: 84 Plot Nos: 102, 103 and 104measuring about 0.4200, 0.1860 and 2.600 hectors respectivelywhich fall within the same compound are butted and boundedas follows: - iNorth: -Boundary of Plot Nos 105 and 108 of tlrisplaintiff.South: -Boundary of plot'No: 101 of the plaintiff.East : -Boundary of plot No: 108 of the plaintiff.West: - Boundary of plot No: 105 of the.plaintiff. "

The house is situated inside plot No.102 to its South comer.(Thehouseandthelandinthescheduleisshownbyredlining).

The `M' schedule land as set out in the plaint reads as follows: - "AIl that entire plots of lands cQmprising of dry and cardanomfields situated at Block Uttar Rigu, Elakha, Rigu Dist:Gangtok, popularly known as "Sudamlakha" under KhasaraNo: 84, PlotNos: 101,102, 103,104, 105 and 108 measuring`4.4760, .4200, .1860, .2600, 8.3040 and 4.9340 Hectorsrespectively; which as per survey operation of 1950-52 fallsunder masara No: 59, plot Nos: 18, 22, 23, 24 and 24/520measuring 20.38, 2.16, 5.00, 16.70 and 2.28 acres respectively.(Schedule A to K lands fall inside tlris Schedule M land)."

3. The case ofBir Bahadur Rai, appellant-defendant No.1, as made out in the witten statement, is denial of respondenvplaintiff, AringdasRai's rigiv title and interest over any of the properties mentioned in Schedule `A' or `M'. According to appellant, the entire propertybelonged to Rajman Rai who had a son Daulat, besides the other sonPadam Dhoj and daughter Dhanrupi. The appellant was the son of Daulatand Asar Baladur Rai was the son of Dhanrupi Ralni. Daulat diedsometime in 1950 leaving the appellant/defendant No. 1 as sole heir.Thouch the appellant/defendant No. 1 admitted that Padan Dhoj becametraceless since 1955, he asserted that while Dhanrup died in 1970, she hada surviving son Asser Baliadur. The appellant/defendant No. 1 furtherclained that he became the sole owner over the properties mentioned inthe schedule of the written statement. The appellant- defendant No. 1denies the clain of the respondent-plaintiff and other defendants thatdefendant Nos. 2 to 10 are Adhiyars with respect to the propertiesmentioned in Schedule `8' to `J'. The appellant/defendant No. 1 madeout a counter claim over an the properties besides the properties describedin Schedule-A of the plaint. But he did not stick to the counter \claim.

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4. M. N. a. Kharga, leaned Counsel appearing for the appellantargued that respondent-plaintiff had claimed the suit land as his ownbeing the properties of his grand father. But subsequently respondent-plaintiff has come forward with the case that the same property belongs toPadam Dhoj and being the nearest relation he is entitled to succeed to thesane. The suit was remanded for linrited purpose to ascertain about therelationship of Padam Dhoj, Charandas and Aringdas. To deterfue thelinrited question, the respondent examined two winesses Jardas Rai andBirkhanan Das who are his relatives and respondent-plaintiff produced adocument dated 15th February 1966 which is exhibit P.P.1. PW Jardasadmits in his cross examination that it is true that there is no thumbinpression of Dhanrupi Raini on exhibit P.P.1. He also stated that theexistence of erfubit P.P.-1 was not mentioned in the document of 8thAugust 1983 for mutation and he had not signed the said document as amember of the Panchayat. Birkhanan Das Rai is the next witless.Witness Birkhaman Das is the father-in-law of the respondent-plaintiffwho married his only dauchter. He is not a signatory to the P.P.1. He \C+-- does not know the name of Padam Dhoj and mentions bin as Padam Das.M. Kharga argued that the genuineness of the document exhibit P.P.1 isdoubtful. It does not bear the thumb inpression of the executant. It isalso not possible`how a person who knows about the value of olddocuments will keep such an inportant document about the property innegligent marmer. He had kept all the rent receipts properly except thisvital document. The other independent living persons who are still alivehave not been exarined. M. Kharga argues that the appellant, as per theevidence of the respondent-plaintiff and others, was inducted as anadhiyar. The khatian parcha of padan Dhoj in the remarks colunm showsthe name of appellant as kabjadar in respect iof plot Nos.102 and 108. Tnesurvey took place in 1975-78 when his possession has been recorded forseven years. The suit was filed in 1985 and this covers the prescribedperiod of 12 years. The appellant has perfected his richt in respect thesetwo plots which will be evideint from the documents filed by therespondent-plaintiff hinself. The genuineness or otherwise of thedocument exhibit P.P.1 is doubtful for other reasons and the appellant- \\\-...

defendant doubts that it has been subsequently made out after the casewas remanded back to the trial Court for finding this limited question ofrelationship. The relationship of the respondent-plaintiff with Charandasand Padam Dhoj has also been made out in this document and hasconnected the same with the respondent-plaintiff. If such a document wasmade and was in existence previously then it oucht to have come out inthe pleadings or in the evidence of the respondent-plaintiff earhier. It wasthe case of the respondent-plaintiff previously that the land belonged tobin and that it was wrongly recorded in 1975 survey in the name ofPadam Dhoj Rat. It was in the possession of Dhan Rupi Raini. After thedeath Qf Dhan Rupi Raini the panchayat and the elders gave the saidproperty to the respondent-plaintiff. But the case now made out iscompletely different and therefore, no reliance should be placed upon thedocument exhibit P.P.1 :

5. M. A.Moulik, learned Counsel appearing for the respondent-plaintiff has drawn attention of the Court to paragraph 5 of the Judgment

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passed in Civil Review Application No. 5 of 1998 which reads asfollows:-

"5. So far as the claim of Defendant No.1 is concernedregarding ownership over the land in question, it has been held in,the judgment that the Defendant No.1 £uled to establish that.That becomes a closed chapter which would not be reopenedbefore the trial Court."

After the case was remanded back to the trial Court for hearing on theaforesaid question regarding relationship of Chandradas Rat with RajamnRaf; the respondent-plaintiff led evidence in the case on 27th September1999. The appellant-defendant No.I had to lead evidence on 7th october `1999. However, on 7th October 1999 the appellant-defendant No. 1represented by a lawyer could not produce his witnesses on his behalf.On the other hand, the appellant-defendant No.1 submitted that he wasunable to bring his witness as the witness was not in a condition to deposedue to illness. M. Moulik submitted that one witness was lying ill, therewas no bar for the appellant-defendant to produce another witness.However, he was given tine till llth October 1999 to produce witness tosupport his defence. On llth October 1999 the appellant-defendant No.1

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neither produced witness .nor he had made any prayer for examination ofwitness on conmission or any prayer for summoning any witness orprayer for a date to exarie any witness was made by the appellant-defendant and it cannot be said that the appeuant-defendant No.1 was notgiven sufficient opportunity to lead evidence in support of his case. Mr.MoulikaguedthatafterconsideringtheevidenceonrecordandkeepinginHind the Judgment of the trial Gout passed in Civil 1St Appeal No. 1 of1998 and the Judgment of Civil Review Application No. 5 of 1998, theCivil Judge had considered the statements of the witnesses namely JardasRai and Birkhanan Das. After duly consideing the statements on oath ofthese two witnesses, the Civil Judge delivered Judgment on 30th October1999 and had come to definite fading that Charon Das was the brotherand co-sharer of Rajman Rai. M. Moulik argued that appellant in hisappeal did not urge any point indicating fault with the judgment andorders of the Civil Judge. M Moulik has drawn attention of the Court tothe paragraph 34 of the judgment dated 30th October 1999 which reads asfollows :- •-If "34. Nevertheless, it must be noted that PW-2, has also deposedthat the defendant No.1 is also related to him being the husbandof PW-2's grand daugiver. This fact in my opinion mititates thepossibility of PW-2 being an interested party and hence PW-2can thus be relied upon by this Court as an independent witness."

M. Maulik argues that the trial Court observed that witness Jardas Rai iswell conversant with the family ties of the' parties. According to witnessJardas Rai, he knows the sons of Rikidhan Rai, who are Charandas Raiand Rajman Rai and who have already died. Rajman Rai has one son andone dauchter, Padamdhoj and Dhan Rupi Rai. The trial Court hasobserved that the relationship between Charandas Rai and Rajman Rai asbrothers has been established. Under cross-examination this fact has notbeen controverted. The dial Cout at paragraph 38 of the Judgment hasgiven fading that the respondent-plaintiff has been able to establish thefact that RIki Dhan Rai has two sons Charandas Rat and Rajman Rai. Atparagraph 41, the trial Court has come to conclusion that the issue,namely the relationship between Charandas Rai and Rajman Rai asbrothers and co-sharer has been proved and established in favour of the \ ,-.`

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plaintiff. Winess Jardas Rai has categorically stated that he knows thesons of Rikidhan Rai who are Charandas Rai and Rajman Rai, both ofwhom are no more. He has further established that Charandas Rai has oneson, who is the respondent-plaintiff. Rajman Rai has one son and onedauchter. He further stated that Bir Bahadur Rai, appellant-defendantNo.1 has migrated from Nepal. This witless does not know any one,n.aned Lakhman Rai and Daulat Rai. In cross-examination, nothing couldbe brougiv out by the appellant-defendant No.1 to support that witnessJardas Rat is an interested witness and that he has not broucht out thetnrfu in his evidence. In cross-exarination, only some formal suggestionuhas been given to this witness and the witness has just denied suchsuggestions. Except such negative suggestion, no concrete evid;nee hascome forward from the witness to support the case of the appellant.M.Moulik argued that the relationship between Charandas Rat- ,andRajman Rai has also been proved by the respondent-plaintiff. The relevantportion of the deposition of Aringdas Rai reads as fonows :- .`:.,,.

"The suit land originally belonged to late Rikidhan Raiwho obtained the law from the Maharaja of Sikkin about 100years ago. Late RIkidhan had two sons namely Charandas Raiand Rajman Rai. I am the only tiving son of Charandas Rai.Rajman Rai had only one son Padamdhoj Rai who is traceless forthe last ab.out 32 years and he has no issue as he was not evenmarried. Rajman had only one dauchter namely Dhanrupi Raini.Dhanrupi died in the year 1971 without being marred and shehad led the life of a Sannyashi. After the death of my grand-father the suit land devolt upon my father Charandas Rai hebeing the eldest son. Rajman died expired before 10 years of thedeath of my father Charandas Rai. My father died in the year1943. I have been enjoying the suit land fi-om my very childhood along with my father, uncle and grandfather. The suit landaccording to the 1951 record stands recorded in my name."

Mr. Moulik has drawn attention of the Court to the relevant portion of the deposition of the plaintiff as PW which reads as follows :- "I enjoyed the suit lands even during the life time ofPadamdhoj Rat and Dhanrupi Raini. I was in joint farfuly withPadandhoj Rai and as such I `was in possession of the suit landas owner with them. On the death of Dhanrupi Raini Iperformed all her death rites."

M. Moulik argued that the deposition of PW Sangay Tshering will show that the relationship between Charandas Rai and Rajman Rai has also been proved by the evidence of the PW Sangay Tshering alid relevantportion reads as follows :- "I know Padamdoj Rai who happened to be the son ofRajman Rai. Charandas Rai was the father of Aringdas Rai.Charan Das Rai and Rajman Rai are brothers. I know bothCharandas and Rajman. Both of them are dead. Charandas Raiis the elder brother. Charan Das Rai and the Rajman are the fullblood brothers. Padamdhoj had one sister named Dhanrupi whois also dead. Whereabout of Padamdhoj is not known sinceabout 30/35 years. Both Padamdhoj and his sister wereurmarried."

M.Moulik argued that Aringdas Rai is a "BANTWA" Rai and hisgrandfather RIkidhan Rai is also a "BANTWA" Rai whereas BirBahadur is a "KULUNG" Rai. This statement of PW-3 Ram KaranDas Rai was not controverted by app61lant-defendant No.1. Therefore,the relationship of Aringdas Rai son of Charandas Rai with another sonof RIkidhan Rai namely Rajman Rai is established beyond reasonabledoubt. M. Moulik has argued that the khatiyan parcha relating to thesuit land shows the name of the respondent-plaintiff as the owner. Thekhatiyan parcha shows that the respondent-plaintiff has all along paidrent relating to the suit land. Document signed by the respondent-

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plaintiff and the appellant-defendant No.1 shows that the appellant-defendant No. 1 is an Adhyar under the respondent-plaintiff. ExhibitP-12 is an application by the appellant-defendant No.1 to the ChiefMinister. In this application he never claimed hinself as the relative ofPadandhoj .Rai or that of Dhanrupi Raini. On the other hand, therespondent-plaintiff Aring Das Rai has kept him in his sister's land.The said sister is none but Dhanrupi Raini, the dauchter of Rajman Rai.Mr. Moulik argued that at no point of time, in none of the litigationsbetween the respondent-plaintiff and the appellant-defendant No.1, theappellant-defendant No.1 had ever claimed as the relative of latePadamdhoj Rai or that of Dhalirupi Raini. Mr. Moulik argued that inparagraph 13 of the Judgment passed in Civil lst Appeal No.1 of 1998,the H8h Cout observed that the appellant-defendant No.1 neverclaimed ownership over any portion of the suit land by virtue ofinheritance or by way of adverse possession.

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6. Vide judgment dated 30th January 1997 passed by the civil Judge, East in Civil Suit No.14 of 1985, the case of Aringdas Rai, therespondent-plaintiff was dismissed. Thereafter, the respondent-plaintiffpreferred an appeal before the ffich Court. Vide judgment dated 7thSeptember 1998 passed in Civil First Appeal No.1 of 1998 (Aringdas Ratv. Bir Bahadur Rai), the Ifi8h Court allowed the appeal and the judgmentand decree passed by the trial court was set aside and the case wasremanded to the ulal court for deciding the issue whether Charan Das wasthe brother and co-sharer of Rajman Rai. For this purpose, the HchCout also held that the parties should be given opportunity to adducefurther evidence. The operative part of the Judgment dated 7th September1998 is reproduced below :- "20. Coming down to the case of plaintiffrfumust be noted that inthe instant case he has first to establish his title over the propertywhich is possible only if he can tie up Chandradas with Rajman asclained by bin in his plaint and evidence; but the evidence in thisrespect is not thorouchly independent and trustworthy. ThePlaintiff s case would have failed for want of such evidence but thatwould keep the dispute between the paties alive which is notdesirable. The Plaintiff should be given a chance to prove this \"^`.,..

aspect.of the case before the trial Court with rigiv to the defence totry to disprove the claim. It is, hence, ORDERED

that the Appeal be and the same is allowed on contest without costs.The judgment and decree Passed by the leaned trial Court is setaside and the case is remanded back to the dial Court for decidingthe issue whether Chandradas was the brother and cosharer ofRajman. For that purpose the parties should be given opportunityto adduce further evidence. After coming to a decision on theaforesaid point and in consideration of the observations made in thebody of this judgment regarding other points, the leaned trial Courtwould finally decide the case."

Thereafter, Aringdas Rai, the appellant in Civil 1st Appeal No. 1 of

1998 and respondent herein filed a Review application being CivilReview Application No.5 of 1998 with the following prayers :- "In the circumstances the petitioner most humbly prays thatYour Lordship may be graciously pleased enouch to consider thisreview petition and review the judgment and orders passed on7.9.98 in Civil Appeal No: 1 of 1998 and be further pleased to passthe following orders to the effect :-

a) to consider and hold that on the basis of the evidence onrecord both oral and documentary it has been proved andestablished that Charandas Rai was the full brother ofRajman Rai and accordingly Charandas Rai was a co-sharer W

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with Rajman Rai in respect of the properties left by RikidhanRat the father of Charandas Rai and Rajman Rai;

b) to Consider and hold and declare that the petitioner plaintiffhas been able to prove that even independently of therelationship between Charandas Raf and Rajman Rat, he isthe owner of 8 annas share in the suit properties and he isentitled to get declaration to that effect.

c) to consider and hold that the petitioner/plaintiff has provedthat he has right, title and interest on the entire suit propertyand he is entitled to get a decree in the suit to that effect;

d) to consider and hold and pass a decree in the suit for thereliefs as prayed for by the petitioner/plaintiff in the suit;

e) to pass any other order/orders which the Hon'ble court maydeem fit and proper in this case in the interest of justice."

in Civil Review Application No. 5 of 1998 this Court Observed thatwhile dealing with the judgment of the dial Court, it never rejected theevidence either oral or documentary available within the record toestablish the plaintiff s interest over the suit property. The onlydeficiency as noted by this Court was that a little more evidence.on behalfof the. plaintiff was/is necessary to prove the plaintiffs case conclusively.That is the reason for which the case was remanded to the trial cout` for W`'

giving opporfurity to the plaintiff. In paragraph 5 of the judgment passedin the Review application, this Cout held so far as the claim of thedefendant No. 1 is concerned regarding ownership over the land inIquestion, it has been held in the judgement that the defendant No. 1 fuledto establisli that. That becomes a closed chapter which would not be re-opened before the thal court. Paragraphs 2 to 7 of the Judgment dated 7thNovember 1998 passed by this Cout in Civil Review Application No. 5of1998(AringdasRal,appellant-petitioner-vs-BirBaliadurRai&Ors.)are reproduced below :- "2. There was a dispute between the Appellantffetitioner and the Respondent No.1. ` Traversing throuch various litigations theAppellant ultinately cane to this Gout with Civil Appeal No.1of 98 which was disposed of by this Cout on 07.09.1998 by anorderofremandtothelowerCoutforalimitedpulpose.

3. The Appenant has come up with this Review petition withthe contention that the ounership of atleast. 8 anas sliare ofCharandas in the suit properties should have been specificallydeclared in the Appellate Cout judgment. It has firfuer beencontended that fi.om the evidence on record the Appellate CootshouldhaveheldthatCharandaswasthebrotherofRajman.

4. It is the contention of the Petitioner that there aresufficient materials on record to hold that Charandas and Rajman \i\/.'

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were two brothers inheriting equal interest over the suitproperties from common ancestor. In the judgment it has beencleady indicated that it is the Plaintiff (Appellant here) who is toprove his title over. the suit properties. It has been observed inthe judgment that the evidence on record are not sufficient tocome to a definite conclusion. This Court while dealing with thejudgment never rejected the evidence, either oral or documentaryavailable within the record to establish the Plaintiff's 16 armasinterest over the suit properties. The only deficiency as noted bythis Court was that a little more evidence on behalf of thePlaintiff was/is necessary to prove the Plaintiff s caseconclusively. That is the reason for which the case wasremanded to the trial Court for alving opportunity to thePlaintiff.

5. So far as the clain of Defendant No.1 is concernedregarding ownership over the land in question, it has been held inthe judgment that the Defendant No.1 fuled to establish that.That becomes a closed chapter which would not be reopenedbefore the trial Court.

6. We may note once again that before the trial Court, onremand, the Plaintiff would get scope to get his case proved inconclusive manner by producing additional evidence. DefendantNo.I has however been given an opportunity to rebut theevidence which might be adduced by the Plaintiff before the 'trialCout after remand.

7. Therefore, we find liffie ground to reopen the matter on theapplication for review. We camot accept the plea of theAppellant that the matter should be settled by this Court itself byreviewing its judgment on the basis of the evidence on record asotherwise the matter would get delayed."

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7. The trial. court, therefore, decided the issue whether Charan Daswas the brother and co-sharer of Raj Man Rai and it is only for thislimited purpose that the case was remanded and the parties were givenopportunity to adduce further evidence.

8. The plaintiff by way of further evidence producred a documentdated 15th February 1966 executed by Dhan Rupi Raini in the presence ofwitnesses in respect of the suit property. Tvyo witnesses Jardas Rai andBirkha Man Rai were examined on 27th September 1999. The defendantdid not produce any witnesses and cross-examined these witnesses.

Witness Jardas Rai in his deposition has stated that he knows thesons of RIki Dhan as Charan Das Rai and Raj Man Rai. As per thiswitness, Charan Das had one son, i.e Aring Das, the respondent-plaintiff.Raj Man Rai had one son called Padam Dhoj Rai and one dauchter namedDhan Rupi Raini. This witness further deposed "Padam Dhoj became \,, : -

traceless and was not married. Dharmipi also did not many. She died in1971. Bir Bdr. Rai Def. No.1 has migrated from Nepal. I do not knowanybody named Lhakman Rai and Daulat Rai." This witness fu[therdeposed that the document dated 15th February 1966 was prepared by•Dhan Rupi Ralni in presence of witnesses by which the suit property wasgiven to the plaintiff being the `hawkala' in pres.ence of witnesses such asSukman Rai, Mandal, Kesherman Gurmg, Sanman Rat, Man Bahadur Rafand Witness Jardas Rai himself and that exhibit P.P.1 was scribed by oneM.B. Tanang on the request of Dhan Rupi Raini. Jardas Rai identifiedand proved his signature on exhibit P.P.1 as exhibit P.P.1 `a' and thesignature of Mandal Sukman Rai as erdihit P.P.1 `b', KeshemanGurung's signature as exhibit P.P.1 `c' and signature of San Man Rat andMan Bahadur Rai as exhibit P.P.1 `d' and P.P.1 `e' respectively. ExhibitP.P.1 `f' was identified as the signature of the scribe M.B. Tamang andexhibit P.P.1 `g' was identified as the partially visible thumb inpressionof Dhan Rupi Raini. This witness deposed that the scribe no longerresides in Sikkim and of the four, other witnesses only San Man Rai is •-ir still alive but is aged 75 years and hard of hearing. Trial Court recordedthat the learned Counsel for the defendant No. 1 strongly objected to thedocument dated 15th February 1996 being exhibited and marked as exhibitP.P.1 and to the identification of exhibit P.P.1 by PW-1, and theidentification of ezrfuibit P.P.1 `c' to P.P.1 `g.'. After a thorouch discussionthe trial cout is of the view that reliance carmot be pressed on thedocuments dated 15th February 1966 and while rejecting the saiddocument the trial court observed as follows :- "37...................... the plaintiff has not been able to satisfythis Court as to how the same'has nriraculously beenproduced at this stage despite the fact that it pertains to theroot of the dispute between the parties and which dispute hasbeen adduced and advanced before several foruni. Further,the plain.tiff s clain that he was unable to produce the sameearlier but has only "very recently recovered one docunientdated 15.2.66 from the waste paper basket after a greatsearch" is a most unconvincing explanation especially whenit pertains to so vital a document, and hence in my opinionby no stretch of imagination can a Court of law rely on sucha document."

9. Under cross-examination, this witness stated that he does not know the name of the father of REd Dhan Rai or when Rjki dhan died. He does

not know the wife of Charan Das as he had never seen her. Charan Dasdied in the year 1943 when witness Jardas Rai was aged abou't 7 years. Incross-examination, he fi}rther admitted that Aringdas Rai, the respondent-plarfuiff is, his brother and he also admitted that the plaintiff s contentionthat the suit land stands recorded in his name in the first survey operationin 1950-54 and the` second survey operation of 1979-80 is correct. In thecrossTexamination, this witness has stated C:statement of the plaintiff thathe is the owner of suit land but in the survey operation of 1979-80 the saidland was wronaly recorded in the name of Padam Dhoj Rai is a colTectstatement of the plaintiff. It is also collect that when the suit land waswrongly recorded in the name of Padam Dhoj Rai the plaintif had made acomplaint to the Amin. The statement of the plaintiff that, thouch the suitland was wrongly recorded in the name of Padam Dhoj Rai, but he is incontinuous possession from his childhood is a correct statement. The suitland is the personal property of plaintiff inherited from Charan Das Rai.The statement of the plaintiff that the suit land never belonged to Padam ur Dhoj Rat is a coITect statement. It is not a fact that my above statementare false statement."

10. Birkha Man Das, another witness was exalnined on 27th september1999. He deposed that the respondent-plaintiff Aringdas Rai is his son-in-law and that the defendant No.1 Bin Baladur Rai is the husband of hisgrand danchter. He further stated that he had seen Riki Dhan Rai in hischildhood and that Charan Das R,ai and Raj Man Rai were the two sons ofRiki I)han. Rai. According to this witness, Aringdas Rai, the respondent-plaintiff is the son of Charan Das and Padam Dhoj Rat and Dhan RupiRaini are the son and dauchter of Raj Man Rai. Padam Dhoj Rai wentmissing and remained trmarried. This witness stated that Dhan RupiRaini died about 30 years ago and was a Lamini (nun) and was notmarried. He has also stated that he does not know anyone by the name ofLalman or Daulat Man Ral. It is also stated that the respondent-plaintiffhas been cultivating the land since he was 9 to 10 years old. Under cross-exarination, Birkha Man Das stated that one Hari Das Rai is his own son and he lives at Dalapchen and cultivates his own land at RIgu. Besidescultivating his own land he does not cultivate any other land of any otherperson. Aring Das Rai, respondent-plaintiff has not filed the suit againstthe son of this witness, IIari Das Rai in respect of the suit land of thepresent case. 'Ihis witness under cross-examination admitted thatrespondent-plaintiff is the husband of his only dauchter. He does notknow the wife of of Riki Dhan Rain or about his brothers. He does notkliow when Rife Dhan expired. He does not know the wife of Charan DasRat or when either of them died, nor does he know where Charan Dasused to live during his life time.

11. Oral evidence of the respondent-plaintiff's witnesses examined bythe trial Court clearly goes to establish the relatiouship between CharanDas and Padan Dhoj Rat as brothers. Jardas Rai proved that therespondent-plaintiff and Padam Dhoj Rai were brothers being sons ofCharan Das Rai and€Raj Man Rai, who in ttm were the sons of RIld DhanRai. The respohdeut-plaintiff's witness Jardas in his evidence had clearly ``\`: ,.`

established that the father of the respondent-plaintiff Charan Das Rai andRaj Man Rai are brothers. The witness is related to the respondent-plaintiff and knows all family ties of the respondent-plaintiff. Jardas Rai isa village elder and is well acquainted with his villagers and was also awitness. Birkha Man Das is 86 years old and shows that witness Birkhahas knowledge of the family ties of both parties. Witness Birkhaman hadseen REd Dhan and deposed that Charan Das and Raj Man are the twosons of REd Dhan and Aring Das, respondent-plaintiff is the son ofCharan Das while Raj Man had a son called Padan Dhoj Rai andudauchter Dhan Rupi Raini. The evidence of both witnesses carmot bedisregarded. The evidence of these two withesses estabrished that Charan•bas Raf and Raj Man Raf are brothers. I agree with the conclusionreached by the leaned dial Cout that both the witnesses Jardas Rai andBirkha Man Rai produced by respondent-plaintiff are elderly persons ofthe village and there is no reason that their evidence is to be doubted asthe witness, Jardas Rai is 65 years old and witness Birkhanan Das is aged86 years. Jardas Rai and Birkhaman Das are related to the respondent- t` tr.

plaintiff as Jardas is plaintiff s brother and Birkhanan is plaintiff s father-in-law. Birkhanan Das has also deposed that the appellant-defendantNo.1 Bir Bahadur Rai is also related to him being the husband ofBirkhanan Das's grand daughter. Therefore, Birkhanan Das camot besaid to be interested witness and evidence of Birkhanan Das was richtlyrelied upon the thal Court as an independent witness. As regards theevidence of Jardas Rai, it also clearly goes to show that he is conversantwith the family ties of the parties. Jardas Rai has deposed "I know thesons of RIki Dhan Rai, they are Charan Das and Rajman Rai, both ofwhom are no more." Jardas Rai also stated that Rajman had one son andone dauchter named Padam Dhoj Rai and Dhan Rupi Raini. The evidenceof Birkhanan Das in establishing the relationship between Charan DasRai and Rajman Rai as brothers is clear as he deposed " I also 'knowCharan Das and Rajman Rai who are the two sons of Riki Dhan Rai."Under cross-exarination, this fact has not been controverted and there isnothing in cross-examination of Birkhanan Das to demolish that

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statement and therefore, the trial Court has richtly relied upon theLevidence of these witnesses. The trial Court came to the conclusion thatthe plaintiff has been able to establish the fact that Rjki Dhan Rai had twosons Charan Das and Raj Man Rai, as is evident from the oral evidenceadduced by plaintiff s witnesses before the trial Court. Paragraph 39 of the judgment of the dial Court is reproduced below :- C`39. At this state I would like to briefly refer to the relevantobservations of the Hon'ble Ifich Court in Civil Appeal No.1/98Aringdas Rai Vs/- Bin Bahadur Rai and another, in that theHon'ble lfich Court held that (`a) Padan Dhoj Rai must be presumed to be dead, under thedven circumstances Q'ara 8)

(b) Dhan Rupi Raini dies issueless Q?ara 9)

(c) That the claim of acquisition of title over the property byway of adverse possession is belated and casual in nature.The evidence in this respect is very scanty. DefendantNo.1 put main stress ori long possession but. we havealready noticed that mere long possession cannot confertitle Q'ara 11).

(d) The status of defendant No.1 carmot be more than an`adhiayar' Q'ara 19) " as till before 1984 the, defendantNo.1 never clained ownership, rather he accepted the _-:-r------,- plaintiff as the owner of the property and hinself as an`Adhiyar' under bin." foara 13)"

in Civil Review Appeal No. 5 of 1998 Aringdas Rai Vs/-Bir Baladur Raiand others this Court held that so far as the claim of defendant No.1(appellant)isconcemedregardingownershipoverthelindinquestion,ithas been held in the judgment passed in Civil lst Appeal No. 1/98 that thedefendant No.1 (appellant) faded to establish that. That becomes a closedchapter twhich would not be reopened before the trial Court.q12. Records show that the respondent-plaintiff led evidence in the casebefore the trial Court on 27th September 1999. The appellant-defendantj>had to lead evidence on 7th October 1999. But the appellant did notproduce his witnesses on 7th October 1999. The appellant-defendant`submitted that he was unable to bring his witness as the witness was notin a condition to depose due to illness. One witness may be lying fll, butthere was no bar for the appellant-defendant No. 1 to produce anotherwhessTheappeuantwasrepresentedbyla#thouchm the trial Court. However, the appellant was given tine till llth October1999 to produce witness to support his defence. On llth October 1999,the appellant neither produced witness nor fie applied for .examination ofwitness on commission. This is a Civil Suit of 1985. I am of the viewthat sufficient opportunity was given to the appellant by the trial Cqurtand he did not avail of it.

13. I hold that Charan Das Rai was the brother and co-sharer of Rajt-Man Rai. I am in full agreement of the findings of the trial Court. I amalso in the agreement with trial Court that respondent-plaintiff is entitledto the reliefs as claimed by bin and enumerated in paragraph 21(i), (ii)and (iii) of the plaint.

14. in the result, the appeal is dismissed. However, there will be noorder as to costs.

( ANUP DEB )JUDGE