Mingma Sherpa vs Phurba Dokpa Sherpa and Others

Sonam Phintso Wangdi, J—By filing this Appeal, the Appellant-Plaintiff seeks to assail judgment dated 26-10-2013 passed by the Learned District Judge, South Sikkim at Namchi, in Title Suit No. 12 of 2008, by which a suit for declaration, confirmation of title, recovery of possession, mandatory injunction and consequential reliefs in respect of land bearing plots No. 558, 559, 560 and 553 measuring about 3.5080 hectares, situated at Perbing Block, South Sikkim, filed by the Appellant-Plaintiff against the Respondent-Defendant No. 1 and Proforma Respondents-Defendants No. 2 to 5, was dismissed.

The Appellant-Plaintiff and his Late brother, Phurba Sherpa, are the sons of Late Tempa Dorjee Sherpa and the Respondents-Defendants No. 1 to 4 are the sons and Respondent-Defendant No. 5, the grandson of Late Nim Dorjee Sherpa respectively. Late Tempa Dorjee Sherpa and Late Nim Dorjee Sherpa were brothers.

The disputed land bearing plots No. 330, 331 and 332, as per old survey record situated at Perbing Block, Namthang Elaka, South Sikkim (hereinafter referred to as the "suit land"), was earlier recorded in the name of Late Phurba Sherpa, brother of the Appellant. In the year 1958, the Appellant left Sikkim in search of employment leaving his property standing in the name of his pre-deceased brother Phurba Sherpa, which is adjacent to the Perbing Junior High School, in the care and custody of his paternal uncle Late Nim Dorjee Sherpa, who was alive at the material time. In and around the year 1982, Late Nim Dorjee Sherpa was approached by the School Authorities for sale of a portion of the land to the School as additional land was required for its upgradation. Since the suit land stood recorded in the name of the brother of the Appellant, Late Phurba Sherpa, it was felt necessary to mutate first it in the name of Nim Dorjee Sherpa to facilitate the transfer to the School.

Thus, in a meeting held on 20-10-1982, Nim Dorjee Sherpa executed a document, Exhibit 3, in presence of the Panchayat, villagers and members of the School Management Committee declaring, inter alia, that the land which actually belonged to the Appellant, was being taken care of it by him and that the remaining area after sale of the portion to the School was intact for the Appellant to take over if he returned and that no one else including his own heirs would have any claim over it. The document, Exhibit 3, was scribed by one Nima Rinchen Sherpa, P.W.2, who was a Primary Teacher of the School and was attested by 50 (fifty) persons including the Late Nim Dorjee Sherpa and the Respondent No. 1 as witnesses. Eventually, the suit land was mutated in the name of Nim Dorjee Sherpa who then gifted a portion of plot No. 559 measuring 0.2780 hectare in favour of the School by a registered Deed of Gift dated 02-05-1994, filed as Annexure A1 in CM Appl No. 370 of 2014.

These events took place during the absence of the Appellant, of which he came to know after his return to Sikkim sometime in the month of April, 2007. On coming to know of these facts, the Appellant approached the Respondent No. 1 and the rest of the Respondents for return of the land and its mutation in his name from the name of Late Nim Dorjee Sherpa who by then had already also expired. Although the Respondents No. 3 to 5 unhesitatingly agreed to his request, the Respondent No. 2 was reluctant as he was in cultivation of a portion of it although he accepted the ownership of the Appellant over the suit land. The Respondent No. 1, however, completely refused to accede to his request and also disputed the genuineness of the document dated 20-10-1982, Exhibit 3, and instead claimed the suit property to be his own by virtue of inheritance from his Late father Nim Dorjee Sherpa.

This led the Appellant to approach the Village Panchayat on 01-07-2007 with a written application requesting settlement of his right, title and interest over the suit land. This was followed by a meeting on 03-07-2007 during which the Respondent No. 2 agreed, in presence of the villagers and the Panchayat, to return the portion of the suit property under his cultivation to the Appellant after a couple of years and an agreement, Exhibit 5, was executed to that effect between them. However, the Appellant''s effort with the intervention of his relatives for settlement with the Respondent No. 1 failed.

When the Appellant came to learn that the Respondent No. 1 had got the suit land mutated in his name from the name of Late Nim Dorjee Sherpa and had taken possession over it, the Appellant and the Respondents No. 3 to 5 approached the SDO, Namchi, with an application for cancellation of the mutation. The SDO, Namchi, upon making necessary enquiries, found that the mutation had been allowed on the basis of a false affidavit filed by the Respondent No. 1 declaring that he was the only legal heir of Late Nim Dorjee Sherpa and also without submitting any ''NOC'' as required. Thus, the SDO ordered for cancellation of the mutation directing the parties to approach the appropriate Court.

These are the substantial pleadings of the Appellant in the suit which is resisted by the Respondent No. 1 by filing a written statement denying all material facts. The Respondent No. 1 asserted that the Appellant was not the son of Late Tempa Dorjee Sherpa but, was an outsider and son of some other person named ''Pem Dorjee Sherpa''. This, as per him, was apparent from a Criminal Complaint filed by the Appellant where he had claimed to be the son of that person. It was also asserted that the land was infact recorded in the name of Phurba Lama, his grandfather, and not Phurba Sherpa, the father of the Appellant which later was recorded in the name of his father Nim Dorjee Sherpa and after his demise, in his own name. The execution of the document Exhibit 3 dated 20-10-1982 by his father Nim Dorjee Sherpa was also denied. He also denied that Late Phurba Sherpa, father of the Appellant, as being his paternal uncle. The document, Exhibit 3, is also assailed on the ground that it mentions one ''Phurba Chotey Sherpa'' and not ''Phurba Sherpa'' and that Mingma Sherpa, the Appellant, has not at all been mentioned. Neither plot numbers of the land nor boundaries nor its identification have been set out in the said document. It is asserted that the document pertains to some other land. The signature on the document said to be that of Nim Dorjee Sherpa has also been denied. It is asserted that apart from the fact that the document has not been executed on a judicial paper, even the signatures appearing on it, as per him, were doubtful.

Based on the pleadings and upon hearing the parties, the Trial Court framed the following issues:--

"(i) Whether the Plaintiff has locus standi to file the suit?

(ii) Whether the Plaintiff is the rightful owner of the suit property(s)?

(iii) Whether the suit property(s) was transferred from the name of late Phurba Sherpa to Nim Dorjee Sherpa in 1982 vide document dated 20.10.1982 to enable the latter to transfer a piece of land to the village school?

(iv) Whether the document dated 20.10.1982 is valid and binding upon the Defendant and Proforma Defendants?

(v) Whether the Defendant No. 1 is the absolute owner of the suit property(s)?

(vi) Whether the suit is undervalued?

(vii) Whether the document dated 03.07.2007 is a fake document?

(viii) Whether the Proforma Defendant No. 2 has right, title and interest over the suit property(s) by way of adverse possession/ouster?

(ix) Whether the Plaintiff is entitled for relief/reliefs?"

The Learned District Judge upon consideration of the evidence, both oral and documentary, decided all the issues against the Appellant except for issue No. (vi).

Before commencing with the discussions on the rival contentions, it is relevant to note that, on behalf Appellant, an application dated 27-11-2014 registered as CM Appl No. 370 of 2014 was filed seeking leave to place on record a Gift Deed dated 02-05-1994 pertaining to the suit land and to permit him to adduce additional evidence. On 28-07-2015 when the application was taken up and this Court was inclined to allow the prayers for adducing additional evidence, Mr. N. Rai, Learned Senior Counsel for the Respondent No. 1, on instructions, submitted that he had no objections if the document was taken on record and admitted to evidence. Accordingly, the document was taken on record and admitted to evidence to be considered along with the other evidence on record at the time of the arguments. It is also relevant to note that it was primarily the Respondent No. 1 who was contesting the Appeal. The registered Deed of Gift filed as Annexure A1 in CM Appl No. 370 of 2014, was executed by Nim Dorjee Sherpa, the father of the Respondent No. 1 in favour of the Perbing (Parbing) School, Department of Education, Government of Sikkim, in respect to a portion of plot No. 559 measuring .1880 and .0900 hectare which, as per the Appellant, was the new plot number of the portion of the suit land.

There is also another aspect that requires to be recorded. On 29-07-2015 after the matter was heard at length, it was noticed that Exhibit 5 which was one of the crucial documents, was neither proved by the Appellant nor did he identify the signature appearing on it and also that no questions appear to have been put to the other 10 (ten) witnesses who obviously had signed on the document as attesting witnesses. Even the Proforma Respondents had not been questioned on this. It prima facie appeared to this Court that the case of the Appellant who was a rustic villager, was not appropriately handled by his Counsel. Accordingly, upon hearing the Learned Counsel for the parties, this Court by order dated 29-07-2015, remanded the case to the Trial Court for the limited purpose of exhibiting the document, Exhibit 5, which was already on record, in accordance with law. After compliance of the aforesaid direction, the Trial Court returned the case file to this Court for further consideration.

After having so observed, we may now proceed to consider the rival submissions of the Learned Senior Counsel.

Mr. K.T. Bhutia, Learned Senior Counsel for the Appellant, reiterated what had been pleaded in the plaint, the substance of which have been alluded to earlier. It was urged that the Appellant who was the younger brother of Late Phurba Sherpa, who had predeceased him and the son of Late Tempa Dorjee Sherpa, left Sikkim sometime in the year 1958. His landed property recorded in the name of his deceased elder brother, Phurba Sherpa, was left in the care and custody of his paternal uncle Nim Dorjee Sherpa. He returned sometime in the month of April, 2007 and in the process of getting his land back, he came to learn that several events had taken place during his absence. In the year 1982, the Perbing Junior High School, situated adjacent to the suit land, had approached his uncle Nim Dorjee Sherpa for sale of portion of it to the School for the purpose of its expansion and upgradation. Nim Dorjee Sherpa having agreed to do so, was unable to part with it directly as the land was not recorded in his name. In order to get over this, it was decided to first mutate it in his name to facilitate such transfer. Accordingly, a document dated 20-10-1982, Exhibit 3, was executed by him in a meeting which was attended by the Panchayat and a large number of villagers including his own son, the Respondent No. 1. By the said document, it was, inter alia, declared that he was holding the suit land on behalf of the Appellant and after sale of a portion to the School the remaining area which was intact would be handed over to the Appellant whenever he returned. A copy of this document, as per the Appellant, had been handed over to him by the Proforma Respondent No. 4 when he had approached the latter enquiring about the property narrating to him also the events that led to the execution of the document, Exhibit 3.

The Learned Senior Counsel submitted that although the Respondents No. 3, 4 and 5 had accepted that the Appellant was the owner and had agreed to give him ''NOC'' for transfer of the suit land in his name, the Respondent No. 1 on the other hand was adamant and refused to accede to his request. The Respondent No. 2 who is the brother next to the Respondent No. 1, on his part also accepted the ownership of the Appellant over the suit land but, requested him to allow him the use of the portion being cultivated by him for 2 (two) years to which the Appellant had agreed and accordingly, an agreement, Exhibit P5 to that effect was entered into between them executed on 03-07-2007. Later, when it was learnt that the Respondent No. 1 had surreptitiously mutated the suit land in his own name, the Appellant and the Respondents No. 3, 4 and 5 approached the SDO, Namchi, for cancellation of the mutation. The SDO, Namchi, having found that the mutation had been allowed on the basis of a false affidavit filed by the Respondent No. 1 stating that he was the only legal heir and successor of Late Nim Dorjee Sherpa cancelled the mutation. That all efforts made by the Appellant to persuade for Respondent No. 1 having failed, he first approached the District Lok Adalat, South and West at Namchi and, when it could not be resolved there, the present suit was preferred by him in the Court of the Learned District Judge, South Sikkim, at Namchi.

It is submitted that the document, Exhibit 2, which is the original copy of the parcha-khatiyan in respect of the suit land whereby it stood recorded in the name of his father Tempa Dorjee Sherpa; the declaration, Exhibit 3 termed as a "Lekhapari Rajinama"; the ''NOC'' dated 08-10-2007, Exhibit P4 by the Respondents No. 3, 4 and 5; the agreement, Exhibit P5 entered into between Respondent No. 2 and the Appellant; the order of the SDO dated 09-07-2008, Exhibit 16 and the parcha-khatiyan, Exhibit 17 by which the suit land was recorded in the name of Nim Dorjee Sherpa, his paternal uncle, considered along with the evidence of the Appellant''s witnesses, completely established the case of the Appellant that he was the rightful owner of the suit land which had been left in the care and custody of his paternal uncle, Nim Dorjee Sherpa.

It is submitted that the Trial Court had fallen in error in overlooking the evidence of P.W.8, Bhim Bahadur Gurung, only on the ground that he was not offered for cross-examination before the Pleader Commissioner when the evidence is otherwise. It is also submitted that finding of the Trial Court that the document, Exhibit 3, could not be relied upon as it was only a photocopy and that, the evidence of P.W.2 Nima Rinchen Sherpa, the scribe of the document and the other witness, P.W.6, Mingma Dorjee Sherpa, could not be relied upon, were wholly incorrect. The Trial Court having erroneously interpreted the document, Exhibit 3 and misread the evidence of the Appellant''s witnesses, the findings on issues No. (iii) and (iv) were liable to be set aside. It is submitted that the rejection of parcha-khatiyan, Exhibit 2, by the Trial Court was on a wrong premise that it was silent about the date of its issue when on a mere glance of the document, Exhibit 2, it would be apparent that it was issued by a competent authority under his seal and signature on a form printed on 22-11-61.

That the appreciation of Exhibit 17 by the Trial Court was fallacious as this document which is the parcha-khatiyan in respect of the suit land showing Late Nim Dorjee Sherpa, his paternal uncle as the owner, supported the contention of the Appellant that the suit land was mutated in the name of Nim Dorjee Sherpa in pursuance of the declaration made in the document, Exhibit 3. Thus, as per the Learned Senior Counsel, it was wrong on the part of the Trial Court to have held that Exhibit 17 was a recent record which was in conflict with the old record, Exhibit 2. It was his submission that from Exhibit 2 it was evident that earlier it was Phurba Sherpa who was the owner of the suit land, which was also the case of the Appellant and that, it got mutated in the name of Nim Dorjee following his declaration made vide document, Exhibit 3. It is contended that the Trial Court failed to appreciate the Appellant''s evidence in its entirety and had relied upon stay sentences and selective portions of the Appellant''s witnesses in their cross-examination to hold that there were inconsistencies and contradictions.

Similarly, the document, Exhibit 5, which was the subject-matter of issue No. (vii), executed by the Respondent No. 2 was rejected by glossing over the evidence overlooking the categorical and uncontroverted evidence of the Respondents No. 4 and 5 who have unequivocally proved the document, Exhibit 5, against which there was no cross-examination at all. The findings on issues No. (i) and (ii) having arrived at based on the findings on the issues discussed above, as per the Learned Senior Counsel, were not sustainable.

Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Respondent No. 1, on the other hand, contended that the Appellant has failed to prove that he is the son of Phurba Sherpa and, therefore, his very identity was questionable. He would submit that in a Criminal Complaint filed by him against the Respondent No. 1 being Criminal Complaint No. 11 of 2007, the Appellant claimed himself to be the son of one ''Pem Dorjee Sherpa'' which, as per him, has been admitted even by the Appellant in his cross-examination. Similarly, this has also been stated by Nima Rinchen Sherpa, P.W.2; Temba Sherpa, P.W.4; Chandra Bahadur Gurung, P.W.5; Mingma Dorjee Sherpa, P.W.6 and Dawa Nadar Sherpa, P.W.10. On the other hand, it has come in the evidence of Bhakta Bahadur Gurung, P.W.11, that the Appellant is the son of ''Pintso Sherpa'' and, Passang Ongdup Sherpa, P.W.12, had seen him only when Exhibit P5 was executed. Similarly, Pema Sherpa, D.W.2, did not know both the Appellant and Phurba Sherpa. It was contended by Mr. Rai that ''Phurba Sherpa'' named in the parcha-khatiyan, Exhibit 2, pertaining to the suit land, was actually the father of Nim Dorjee Sherpa who was also known by the name ''Phurba Lama Sherpa'' and that, Tempa Sherpa is actually the father of ''Phurba Sherpa'' alias ''Phurba Lama'' alias ''Phurba Lama Sherpa'' and, therefore, the grandfather of Nim Dorjee Sherpa. Therefore, as per the Learned Senior Counsel, the Appellant was not the son of Tempa Sherpa, a claim which, as per him, the Appellant was unable to prove by any documentary evidence.

As regards the document, Exhibit 3, it was submitted that, being a photocopy, it was not admissible in evidence. This document, as per him, was in fact a fabricated document which, even if admissible in evidence, would not prove the case of the Appellant. It was further asserted that apart from Exhibit 3 being an unregistered and unstamped document, the Appellant had failed to produce its original. It was pointed out that Exhibit 3 was obviously with regard to a sale for a consideration value of Rs. 1,000/- (Rupees one thousand) but, the Deed of Gift dated 02-05-1994, Annexure A1, in the column for consideration value indicated only as ''Gift''. The other discrepancy pointed out was that as per Exhibit 3 the date on which possession of the suit land was handed over to the School was stated to be 20-10-1982 but, in the Gift Deed Annexure A1, the date of issue of the property has been mentioned as ''02-05-1994''. The document also did not contain the plot number and the name of the Appellant. There was also discrepancy in the name of the brother of the Appellant inasmuch as it was stated to be ''Phurba Chotey Sherpa'' when it was the Appellant''s claim that the name was ''Phurba Sherpa''.

Apart from the above, Mr. Rai drew the attention of this Court to various portions of the evidence of the Plaintiff''s witnesses to emphasise on the discrepancies appearing therein which, as per him, belied the authenticity also of the document, Exhibit P4. It was submitted that neither the plot numbers nor boundaries of the land had been mentioned therein and, therefore, it could not be said that it pertained to the suit land.

Similar discrepancies were pointed out as regards Exhibit P5. It was submitted that this document did not contain description of the boundaries of the land and even the name of the scribe was not written. It was, therefore, the submission of the Leaned Senior Counsel that the document did not pertain to the suit land. The order of the SDO, Exhibit 16, was assailed in submitting that it was passed hastily without permitting the parties to produce evidence. It was then submitted that the suit was barred by the law of limitation under Articles 58 and 64 and 65 of the Limitation Act, 1963. It was neither brought within 3 (three) years when the right to sue first arose nor within 12 (twelve) years of the Respondent''s possession. It was thus contended that the Respondent No. 1 had perfected his right, title and ownership over the suit land by way of adverse possession openly and adversely against the whole world including the Appellant which was within his knowledge. In support of his various contentions, Mr. Rai relied upon the following decisions:--

"(i) Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others, AIR 1971 SC 1865 : (1972) 4 SCC 562 : (1971) 3 UJ 644 ;

(ii) State of Karnataka and Others Vs. M. Muniraju, AIR 2002 Kar 287 : (2002) ILR (Kar) 2923 : (2003) 1 KarLJ 291 : (2002) 2 KCCR 135 SN ; and

(iii) All India Anna Dravida Munnetra Kazhagam Vs. L.K. Tripathi and Others, AIR 2009 SC 1314 : (2009) 5 JT 17 : (2009) 4 SCALE 547 : (2009) 5 SCC 417 : (2009) 6 SCR 583 : (2009) 3 UJ 1488 ."

I have heard the Learned Counsel for the parties and carefully examined both oral and documentary evidence appearing on the records. In my considered opinion, the Trial Court has mis-directed itself in passing the impugned judgment as it has fallen in error in appreciating the evidence by rejecting and overlooking crucial parts of the oral and documentary evidence appearing in the records.

In the first instance, the Trial Court rejecting the evidence of Bhim Bahadur Gurung, P.W.8, on the assumption that he had not been offered for cross-examination was, in my view, an incorrect approach. The records of the Trial Court show that the Pleader Commissioners appointed for conducting cross-examinations of the Appellant''s witnesses had done so in two phases. In the first phase, report of cross-examination of 7 (seven) witnesses had been submitted which is reflected in the order of the Trial Court dated 09-09-2011 while the report in respect of the next 3 (three) others, were filed on 20-03-2012 as would be evident from the order passed on that day. It thus appears that all the witnesses of the Appellant had been cross-examined. P.W.8, whose evidence on affidavit was confirmed on 16-09-2010, appears not to have been cross-examined. The impugned judgment was pronounced by the Trial Court on 26-10-2013. During the entire period commencing from 20-03-2012 when report of cross examination of last 3 (three) Plaintiff''s witnesses was submitted, until the date of the judgment, neither the Respondent No. 1 nor any of the other Respondents appears to have raised any objection on this. It is thus reasonable to presume that although P.W.8 had been offered for examination, the Respondents, including the Respondent No. 1, had chosen to decline cross-examining him. It is also of relevance to note that it was never the case of the Respondents including the Respondent No. 1 that they were not given an opportunity of cross-examining P.W.8. It was thus erroneous on the part of the Trial Court to have rejected the evidence of this witness.

Having held so, we may now proceed to consider as to whether the Appellant had been successful in proving his case.

As noted earlier already, the case of the Appellant is that he had left Sikkim sometime in the year 1958 after his first wife had left him, leaving his landed property, the suit land, which stood recorded in the name of his pre-deceased brother, Phurba Sherpa, in the care and custody of his uncle Nim Dorjee Sherpa. On his return in April, 2007, it was found that the suit land had been mutated in the name of Nim Dorjee Sherpa who by then had already died and, a portion of it had been taken over by the adjacent Perbing Junior High School. Later, he was told by the Proforma Respondent No. 4 that when the School Management Committee requested his uncle for a portion of the suit land for expansion and upgradation of the School, a document was executed by him in a meeting dated 20-10-1982 which was convened by the School Management Committee during which document, Exhibit 3, was executed in the nature of "Lekhapari (Rajinama)" declaring that the land was being mutated in his name for facilitating transfer of a portion to the School and that he was holding the suit land on behalf of the Appellant and further, that the remaining portions which were kept intact would be handed over to the Appellant on his return. The proforma Respondent No. 4 also handed over to the Appellant the copy of the document filed as Exhibit 3.

In his efforts to get the land restored in his name, the Appellant had approached all concerned including the Respondent No. 1 and the Proforma Respondents. The Proforma Respondents No. 3, 4 and 5 readily agreed to do so and had accordingly executed a ''NOC'', Exhibit P4, on 08-10-2007, expressing that since the suit land indeed belonged to the Appellant, they had no objections if it was transferred in the name of the Appellant from that of their father, Nim Dorjee Sherpa. The Respondent No. 2 who was in cultivation of a portion of the suit land although initially was hesitant to concede, later agreed and agreement dated 03-07-2007, Exhibit P5, was executed between him and the Appellant whereby the Respondent No. 2 was permitted to continue with the cultivation for the years 2008 and 2009. Later on, when it was learnt that Respondent No. 1 had got the suit land surreptitiously mutated in his name, the Appellant and the Proforma Respondents applied to the SDO, Namchi for cancellation of the mutation. The SDO, Namchi, after making necessary enquiries found the mutation to have been effected based on a false affidavit filed by the Respondent No. 1 affirming that he was the only son of Late Nim Dorjee Sherpa, directed its cancellation by his order dated 09-07-2008, Annexure 16.

It is needless to state that the Appellant''s further efforts to get his land back having failed, the present suit was preferred in the Court of the Learned District Judge, South Sikkim at Namchi. The sequence of events stated set out above is briefly the case of the Appellant which he was required to prove in order to succeed in his suit.

On a careful examination of the oral evidence of the Appellant''s witnesses, I find that the Appellant has indeed been successful in establishing his case. As noted earlier, apart from the Appellant himself appearing as P.W.1, 12 (twelve) other witnesses were also examined by him and amongst them P.W.7, P.W.8, P.W.9 are consistent in their evidence and have supported the Appellant in full measure.

In the evidence of Lakpa Rinchen Sherpa, P.W.7, a co-villager, who used to be a frequent visitor to the house of Nim Dorjee Sherpa and also used to perform pujas during his illness, has stated that Late Nim Dorjee Sherpa used to confide in him regarding the suit land and in such manner had told him that it actually belonged to the Appellant and that he was enjoying it until the latter returned. That he had mutated the suit land in his name to facilitate transfer of a portion of it to the School when the School had approached him with such request and, further that he had apprehended that if the Appellant returned after his death, his son, the Respondent No. 1, may not agree to this fact.

Bhim Bahadur Gurung, P.W.8, is found to have supported the version of the Appellant that he had left his village around the year 1958 leaving his personal effects and properties with his uncle Late Nim Dorjee Sherpa. That he was a Member of the School Management Committee around the year 1982 when additional land for upgradable of the School was sought for from Late Nim Dorjee Sherpa. This led to a meeting being convened by the Panchayat and the School Managing Committee on 20-10-1982 which he and other villagers attended. That during the meeting a document was prepared by Nima Rinchen Sherpa, P.W.2 at the request of Late Nim Dorjee Sherpa declaring that since the land was recorded in the name of Phurba Sherpa, the deceased elder brother of the Appellant, he would be mutating it in his own name only for the purpose of facilitating transfer of a portion to the School. That in the said document, Exhibit 3, Nim Dorjee Sherpa had also given an undertaking in presence of all those present that he would return the remaining land mutated in his name to the Appellant or his descendants whenever he or they returned. P.W.8 is found to have identified the signature of Late Nim Dorjee Sherpa, Exhibit 3(a) and of the Respondent No. 1, Exhibit 3(b) which were said to have been affixed by them in his presence. He also identified the signature of Harilal Gurung, P.W.3 and Bhakta Bahadur Gurung, P.W.11, as Exhibits 3(c) and 3(d) respectively and his own signature, Exhibit 3(f). Land measuring about 1 (one) acre out of the suit land adjoining the School was thus given to the School in the year 1983 which was later mutated in its name.

Similarly, Pem Nima Sherpa, P.W.9, also confirmed the Appellant''s case that he had left the village after his wife had left him and returned only sometime in the year 2007. This witnesses who was cultivating a portion of the suit land under Nim Dorjee Sherpa, deposed that Late Nim Dorjee Sherpa had personally told him that the land under his cultivation and other parties of the suit land actually belonged to the Appellant which he had mutated in his name to facilitate transfer of a portion measuring about 1 (one) acre to the village School. He was further told that the suit land including the land under his cultivation would be returned to the Appellant or his descendants on their return even if his sons objected and that, he expected the villagers to see that this was done in case he was not alive.

P.W.7 and P.W.9 in their cross-examinations remained firm and unshaken on all material particulars and P.W.8 was not cross-examined. Thus, their evidence along with the evidence of Appellant as P.W.1 indubitably supports the case of the Appellant.

In his evidence, Nima Rinchen Sherpa, P.W.2, the scribe of document, Exhibit 3, has found to have proved the execution of the document unerringly. This witness who is 64 years of age, although has stated that he saw the document Exhibit 3 for the first time in the Court record which was the only reason for the Trial Court to discard his evidence, is found to have remained firm on all material particulars and was not shaken in his cross-examination. That apart, we find his statement consistent on all material particulars with the oral evidence of P.W.8, P.Ws 7 and 9.

Dawa Nadar Sherpa, P.W.10, is categorical in his evidence of the Appellant having married his sister, Pema Diki Sherpa and of them having separated after about 2 (two) years of their marriage and Appellant having left the village thereafter.

Bhakta Bahadur Gurung, P.W.11, aged about 76 years, has supported on the facts pleaded by the Appellant. In fact, in his cross-examination, he has answered in the affirmative to the questions put on behalf of the Respondent No. 1 that on the relevant day a meeting was called by the School Committee with regard to the extension of the School building and the donation of the land. Although a sentence was extracted from him in his cross-examination that Exhibit 3 was not prepared, it was categorically answered later that one N.N. Sir had indeed prepared the document. Identification of the Appellant as the one who had left the village could not be contradicted, although there was some discrepancy in the name of his father which he said was ''Pintso Sherpa'' but, on the fact that the Appellant was the very person, remained firm and unshaken.

Similar is the evidence of Harilal Gurung, P.W.3.

Temba Sherpa, P.W.4, has also proved all relevant facts pertaining to the departure of the Appellant from the village, his return in the year 2007 and claim over his suit land from the sons of Late Nim Dorjee Sherpa as well as the execution of the document dated 20-10-1982, Exhibit 3. It may be noted that this witness was the Vice President of the Perbing Chuba Gram Panchayat at the relevant time. In his evidence, he has also stated that the Proforma Respondents agreed to give ''NOC'' for mutation of the suit land in the name of the Appellant having found him to be the actual owner. Even Phur Lhaki Sherpa, wife of Late Nim Dorjee Sherpa, had, as per him, also agreed to do so. It was only the Respondent No. 1 who had refused stating that it was his father''s property. The execution of agreement, Exhibit P4 by the Proforma Respondents No. 3 to 5 and the Agreement, Exhibit 5, between the Appellant and the Respondent No. 2 was also proved by him. In his cross-examination, he has categorically denied the suggestion that Appellant was not the same person who had left the village in the year 1958 and that he was not the son of Late Tempa Dorjee Sherpa thereby establishing the Appellant''s identity. Although he has stated that he did not know anything about the document dated 20-10-1982, Exhibit 3, as he was not present with the meeting, he has remained firm as regards the execution of the ''NOC'', Exhibit P4, by the Proforma Respondents including the wife of Late Nim Dorjee Sherpa.

Chandra Bahadur Gurung, P.W.5, aged about 72 years, also has deposed on all the facts and the sequence of events narrated above consistent with the evidence of other witnesses and also identified the Appellant as the one who had left the village around the year 1958 whom he recognised when he returned in the year 2007. He has also confirmed the evidence of P.Ws 2, 8 and 11 as regards the execution of document, Exhibit 3, and the undertaking given by Nim Dorjee Sherpa to return the suit land to the Appellant on his return.

Similarly, Mingma Dorjee Sherpa, P.W.6 who is a common cousin brother of the parties also confirms the facts stated in the evidence of the other witnesses on the sequence of events and the execution of document, Exhibit 3, by Nim Dorjee Sherpa. He is found unequivocal in his identification of the Appellant and, except for certain minor discrepancies, he has remained firm on the fact as regards the execution of the document, Exhibit 3. In his cross-examination he has denied that he did not know the content of Exhibit 3 and that Exhibit 3 was a false document and the suggestion that Nim Dorjee Sherpa did not undertake to return the remaining land to the Appellant. He has also proved convincingly on the execution of Exhibit P4 by the Proforma Respondents and Phur Lhaki Sherpa, the wife of Late Nim Dorjee Sherpa. There is a categorical denial by him that on 20-10-1982, Exhibit 3 was not prepared in his presence and that Nima Rinchen Sherpa, P.W.2, who was his elder brother, had not prepared the document.

The value of oral evidence cannot be undermined or brushed aside lightly. It deserves equal weightage unless proved to the contrary by documentary evidence. In this regard, we may refer to Sections 59 and 60 of the Indian Evidence Act, 1872 which are reproduced below for convenience:--

"59. Proof of facts by oral evidence.- All facts, except the [contents of documents or electronic records], may be proved by oral evidence.

Oral evidence must be direct- Oral evidence must, in all cases whatever, be direct; that is to say-

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."

On the anvil of the above, when we analyse the evidence of the Appellant and his witnesses, I find it established that -

"(i) the Appellant had left Sikkim in or around the year 1958 leaving his landed property which stood recorded in his pre-deceased brother, Phurba Sherpa, in the care and custody of his paternal uncle, Nim Dorjee Sherpa, the father of the Respondent No. 1 and Proforma Respondents No. 2 to 4 and the grandfather of Respondent No. 5. He had left Sikkim after having separated from his wife of 2 (two) years'' marriage.

(ii) he returned to Sikkim in or around the year 2007 and sought to re-claim his property which by then had been recorded in the name of his uncle, Nim Dorjee Sherpa. Late Nim Dorjee Sherpa had got the suit land mutated in his name in order to facilitate transfer of a portion of it to the Perbing Junior High School which the School required for its upgradation, making a declaration on 20-10-1982 vide Exhibit 3 that the suit land standing in the name of Late Phurba Sherpa, the elder brother of the Appellant, actually belonged to the Appellant and the remaining land after transfer of a portion to the School, would be returned to the Appellant or his descendants whenever he or they returned.

(iii) the Proforma Respondents No. 2 to 5 admitted to the ownership of the Appellant over the suit land and accordingly execute a ''NOC'' for its transfer to his name vide document, Exhibit P4. The Proforma Respondent No. 2, also admitting to the ownership of the Appellant over the suit land, entered into an agreement, Exhibit P5, with him by which he was permitted to continue in cultivation of the portion he was holding for the year 2008 and 2009.

(iv) the Respondent No. 1 had surreptitiously got the suit land mutated in its name in the revenue records based on a false declaration and, on the application made by the Appellant and the Proforma Respondents, the mutation was cancelled reverting the property back in the name of Nim Dorjee Sherpa."

It was noticed that some discrepancies as regards the name of the father of the Appellant were extracted in the cross-examination as well as the existence and authenticity of Exhibit 3. But, in my view, these are of no consequence for the reason that all the Appellant''s witnesses have been found to have remained firm in their identification of the Appellant as Mingma Sherpa who had left the village in and around the year 1958 and who re-appeared in the year 2007. The factum of the meeting having held at the behest of the School Management Committee on 20-10-1982, stands established even though execution of the document, Exhibit 3, may have come under a cloud. Even if it is assumed that Exhibit 3 did not exist and is discarded, the facts emerging from the oral evidence of the Appellant''s witnesses that a meeting did take place on 20-10-1982 and that in that meeting, the declaration alluded to earlier was indeed made by Late Nim Dorjee Sherpa, could not be displaced on behalf of the Respondent No. 1 while cross-examining the Appellant''s witnesses. Even otherwise, Exhibit 3, would be relevant to a limited extent i.e., for the collateral purpose of confirming the facts emanating from the oral evidence.

Similarly, the document, Exhibit P4, which is an ''NOC'' given by the Proforma Respondents stands fully proved by the very evidence of the Proforma Respondents No. 4 and 5 who appeared in the witness box. Execution of the document, Exhibit P5, also stands established from the additional evidence that was adduced on the order of remand. Temba Sherpa, P.W.4; Mingma Dorjee Sherpa, P.W.6; Passang Ongdup Sherpa, P.W.12 and Dawa Tshering Sherpa, P.W.13, who were examined during the proceeding on remand, in their evidence have unequivocally proved execution of Exhibit P5 by the Proforma Respondent No. 2 by which he acknowledged the ownership of the Appellant over the suit land. The evidence of these witnesses could not be demolished on any material particulars in their cross-examinations.

Although Mr. N. Rai, Learned Senior Counsel for the Respondent No. 1, strongly emphasised on some of the discrepancies in the evidence of the Appellant/Plaintiff''s witnesses in his effort to discredit them, I find that the witnesses have been firm on the substantive facts. It is worth noting that the witnesses are either septuagenarians or those nearing that age. It is, therefore, quite natural for them to commit some error of facts when deposing on those after a passage of almost 15 (fifteen) years. I, therefore, find it difficult to accept the contention of Mr. Rai on this aspect.

Next, considering its nature, Exhibits P4 and P5 do not require necessarily to be registered under the law and, therefore, need to be proved as ordinary documents under Section 64 of the Indian Evidence Act, 1872. This requirement appears to have been fully met in the present case. I have, therefore, no hesitation to accept these documents as genuine having been proved as required under the law.

On a close examination of the documents, Exhibits 2 and 16 in the backdrop of the oral evidence discussed above, I find that those also support the case of the Appellant. In the owner''s column of Parcha-Khatiyan, Exhibit 2 (revenue records), the name of Phurba Sherpa, son of Temba Dorjee Sherpa, is found to have been recorded. As per the Appellant, ''Phurba Sherpa'' is his elder brother. Mr. N. Rai, of course, would argue that ''Phurba Sherpa'' is actually ''Phurba Lama Sherpa'' who was the grandfather of the Respondent No. 1 and that, the father of the said ''Phurba Sherpa'' alias ''Phurba Lama Sherpa'' is ''Temba Dorjee Sherpa''. He has put forth this argument by relying upon Parcha-Khatiyan, Exhibit 17, in the owner''s column of which the name of ''Nim Dorjee Sherpa'' son of ''Phurba Lama'' has been found entered. I find it difficult to agree to this since I find that in Exhibit 2, it is entered as ''Phurba'' son of ''Tempa Dorjee'' whereas in Exhibit 17 it is ''Phurba Lama''. The witnesses have been consistent in their evidence that the Appellant is the son of Tempa Sherpa and brother of Phurba Sherpa. Much was sought to be made out of the words spelt as ''Tempa'' and ''Temba'' by Mr. Rai to impress upon us that those were different persons. However, both the words mean one and the same thing i.e., ''firm'' in the Bhutia language to which community the parties belong. The word is pronounced interchangeably of which this Court takes judicial notice of. On the other hand, except for Parcha-Khatiyan, Exhibit 17, and his bald assertions, no evidence has been brought on behalf of the Respondent No. 1 to establish that ''Phurba Lama'' is actually ''Phurba Sherpa''. I, therefore, have no hesitation to reject this contention.

Much had been argued on the Criminal Case No. 11 of 2007 filed by the Appellant against the Respondent No. 1 in the Court of the Chief Judicial Magistrate, South Sikkim at Namchi, Exhibit D1, where he had claimed himself to be the son of Late Pem Dorjee but, having regard to the entirety of the evidence as discussed earlier, this would be of no consequence on the Appellant''s case. The affidavit, Exhibit D2, whereby the father of the Appellant was stated to be ''Late Prem Dorjee Sherpa'' is an unsigned and un-affirmed xerox copy of an affidavit having no evidentiary value at all and, therefore, is discarded from consideration.

I have thus no doubt that the identification of the Appellant as Mingma Sherpa son of Tempa Dorjee Sherpa stands well-established by the Appellant. The Parcha-Khatiyan, Exhibit 2, was sought to be assailed on the ground that it did not contain the date of its issue which even the Trial Court appears to have accepted but, on a close scrutiny of Exhibit 2, I find the same to be the original of the revenue record issued by a competent authority under his seal and signature which can be taken judicial notice of under Section 57(6) of the Indian Evidence Act, 1972. Although the exact date of the issue of the document, Exhibit 2, has not been specifically indicated, it is noticed that the form of the document was printed on 22-11-1961 as would appear from the entry at the left side bottom thereof which reads as "SDPG.81LR.35000.22.11.61". I, therefore, do not find any reason to doubt the authenticity of this document and reject all contentions contrary thereto.

The contention as regards the absence of the boundaries and description of the suit land in the various documents urged by Mr. Rai, in my view, also would be irrelevant and inconsequential as there is no doubt on that score amongst the parties. From the entire records, it is quite apparent that they have proceeded on the premise that the identification of the suit land is undisputed and the ones mentioned in the documents, Exhibits 2, 3, 16 and 17, is in fact the suit land.

Next, is the claim of adverse possession asserted on behalf of the Respondent No. 1 on the anvil of Article 65 of the Limitation Act, 1963. In the first place, the period of limitation of 12 (twelve) years under Article 65 of the Limitation Act, 1963, quite apparently has not lapsed. Since it has been proved by the Appellant that he had come to learn of the events pertaining to the land only after his return to his village in the year 2007, by natural corollary, therefore, the possession of the land by the Respondent No. 1 and the Proforma Respondent No. 2 would have come to the knowledge of the Appellant only in that year which is when the time to determine the period of limitation would commence. The suit having been filed by the Appellant on 08-11-2008, it would undeniably bring the claim of the Appellant within the period of limitation. Secondly, the principle underlying claim of adverse possession is that one claiming the title by such possession should be open and hostile to the interest of the real owner. This obviously is not the case here as the possession of the Respondent No. 1 over the suit land is claimed by him as its true owner having devolved upon him by inheritance. Thus, the possession claimed by Respondent No. 1 cannot be said to be adverse to the title of the Appellant. Thus, this contention is also found unsustainable deserving rejection.

Finally, there is another aspect that also calls for consideration. It is trite that the burden of proof of a fact is upon the one who asserts it as provided under Section 101 of the Indian Evidence Act, 1872. It is the case of the Respondent No. 1 that none of the claims made by the Appellant in the suit are correct. He has categorically denied that the Appellant is the brother of Late Phurba Sherpa and that they are in turn sons of Late Tempa Sherpa and nephews of his father, Nim Dorjee Sherpa. It is also his claim that the suit land first devolved upon his grandfather, Phurba Lama and then upon, his father Nim Dorjee Sherpa, and after the death of his father, he had inherited those. In order to prove these facts, the Respondent No. 1 himself appeared as a witness and produced two other witnesses, namely, Phur Nima Sherpa and Pema Tshering Sherpa. On careful examination of the evidence of Respondent No. 1, nothing has been found to have been brought to substantiate his pleadings and was rather found inconsistent in his cross-examination and, vague and evasive in his answer to the questions put to him. He has not denied categorically that the Appellant had left Sikkim in the year 1958 except to state that he did not know of it. Similarly, he did not know whether in the year 1958 the suit land was in the name of the Appellant''s brother and as to whether Phurba Sherpa was the elder brother of the Appellant. He has admitted that he had no documents to prove that the suit land was purchased either by his grandfather or his father but, that it was found already recorded in the name of his father prior to 1979-80 survey operation. He neither knew of his father having given portion of the suit land to the School in the year 1983 nor as to whether a meeting was held on 20-10-1982 to transfer the suit land in his father''s name from that of the Appellant''s brother. He also did not know about the document, Exhibit 3, and stated that it may have been prepared during the meeting. Surprisingly, he also did not know whether Phur Lhaki Sherpa was his mother. It has further been stated that he did not know as to whether the Appellant''s case that he had left Sikkim and joined the Indian Army after he separated with Pema Diki Sherpa, was true or not.

The evidence of D.Ws 1 and 2 are worthless when, apart from the fact that they have not stated anything of substance, it has come in their evidence that they did not know anything about the case. In my view, the Respondent No. 1 has failed to discharge his burden in proving his assertions. I am conscious of the law that a Plaintiff cannot succeed on the weakness of the Defendant''s case. However, it is also well-established position of law that the Courts shall weigh the evidence of the parties on the principle of preponderance of probabilities. When we considered the evidence of both the sides, I find that it weighs heavily in favour of the Appellant and the preponderance of probabilities lies in his favour.

It is eminently significant to note that Proforma Respondents No. 3 and 4 as well as the Respondent No. 2 are also the sons of Nim Dorjee Sherpa as was the Respondent No. 1. Mingma Dorjee Sherpa, P.W.6 is related as cousin to both the parties. The rest of the Appellant''s witnesses are of the same village numbering not less than 13 (thirteen). These witnesses have spoken unanimously in their evidence supporting the Appellant''s case except for some minor discrepancies. This also is a factor that lie in favour of the Appellant and against the Respondent No. 1 as he has neither witnesses of substance from the village nor documentary evidence to substantiate his claims.

The decisions cited at the bar by Mr. N. Rai will have no application in the facts and circumstances of the present case.

For all these reasons, I am inclined to hold that the Trial Court has fallen in error in dismissing the suit filed by the Appellant and accordingly quash and set aside the impugned judgment passed by it.

In the result, the Appeal is allowed.

Consequently, decree in Appeal is passed in favour of the Appellant in terms of the prayers contained in the plaint of the original suit.

No order as to costs.

A copy of this judgment and original case records be transmitted forthwith to the Court below for its compliance.