Bir Bahadur Rai v. Aringdas Rai

thereon. Respondent-plaintiff objected to it. The appellant also committed theft of cardanom fruits. Respondent drew the attention of the •..,:'\ .--` e! HEZ= RE Panchayat -land throuch their intervention the matter was settled. Ultimately, the appellant filed a petition, being Misc. Case No. 78 of 1981, before the Prescribed Authority. As tits decision on 9th February, 1984 went against the respondent, he filed wit petition No. 13 of 1984 wliich was disposed of on 16th March 1985 with the observation that since the appellant was in possession of the same land the respondent should } not dispossess him without taking recourse to the procedure established by law. The respondent filed the present suit in the year 1985 praying for a decree for declaration of his right title and interest over `M' Schedule of lands, for permanent injunction against Bin Baliadur Rai appellanrfu6fen'dant No. 1 restraining bin from disturbing peaceful possession of the respondent/plaintiff over Schedule `A' lands and also for recovery of possession of Schedule A lands by evicting the appellant/defendant No. 1 therefrom. The schedule `A' land set out in the plaint reads as follows: - "All that entire plots of land comprising of dy and cardamom fields situated at Block Uttar Rigu, Elaka RIgu District East :.-i::-.-,...--. Sikkim falling under Khasra No: 84 Plot Nos: 102, 103 and 104 measuring about 0.4200, 0.1860 and 2.600 hectors respectively which fall within the same compound are butted and bounded as follows: - i North: -Boundary of Plot Nos 105 and 108 of tlris plaintiff. 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 cardanom fields situated at Block Uttar Rigu, Elakha, Rigu Dist: Gangtok, popularly known as "Sudamlakha" under Khasara No: 84, PlotNos: 101,102, 103,104, 105 and 108 measuring `4.4760, .4200, .1860, .2600, 8.3040 and 4.9340 Hectors respectively; which as per survey operation of 1950-52 falls under masara No: 59, plot Nos: 18, 22, 23, 24 and 24/520 measuring 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, Aringdas Rai's rigiv title and interest over any of the properties mentioned in I Schedule `A' or `M'. According to appellant, the entire property belonged to Rajman Rai who had a son Daulat, besides the other son Padam Dhoj and daughter Dhanrupi. The appellant was the son of Daulat and Asar Baladur Rai was the son of Dhanrupi Ralni. Daulat died sometime in 1950 leaving the appellant/defendant No. 1 as sole heir. Thouch the appellant/defendant No. 1 admitted that Padan Dhoj became traceless since 1955, he asserted that while Dhanrup died in 1970, she had a surviving son Asser Baliadur. The appellant/defendant No. 1 further clained that he became the sole owner over the properties mentioned in the schedule of the written statement. The appellant- defendant No. 1 denies the clain of the respondent-plaintiff and other defendants that defendant Nos. 2 to 10 are Adhiyars with respect to the properties mentioned in Schedule `8' to `J'. The appellant/defendant No. 1 made out a counter claim over an the properties besides the properties described in Schedule-A of the plaint. But he did not stick to the counter \claim. \.` .- S

#4. M. N. a. Kharga, leaned Counsel appearing for the appellant argued that respondent-plaintiff had claimed the suit land as his own being the properties of his grand father. But subsequently respondent- plaintiff has come forward with the case that the same property belongs to Padam Dhoj and being the nearest relation he is entitled to succeed to the sane. The suit was remanded for linrited purpose to ascertain about the relationship of Padam Dhoj, Charandas and Aringdas. To deterfue the linrited question, the respondent examined two winesses Jardas Rai and Birkhanan Das who are his relatives and respondent-plaintiff produced a document dated 15th February 1966 which is exhibit P.P.1. PW Jardas admits in his cross examination that it is true that there is no thumb inpression of Dhanrupi Raini on exhibit P.P.1. He also stated that the existence of erfubit P.P.-1 was not mentioned in the document of 8th August 1983 for mutation and he had not signed the said document as a member of the Panchayat. Birkhanan Das Rai is the next witless. Witness Birkhaman Das is the father-in-law of the respondent-plaintiff who 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 is doubtful. It does not bear the thumb inpression of the executant. It is also not possible`how a person who knows about the value of old documents will keep such an inportant document about the property in negligent marmer. He had kept all the rent receipts properly except this vital document. The other independent living persons who are still alive have not been exarined. M. Kharga argues that the appellant, as per the evidence of the respondent-plaintiff and others, was inducted as an adhiyar. The khatian parcha of padan Dhoj in the remarks colunm shows the name of appellant as kabjadar in respect iof plot Nos.102 and 108. Tne survey took place in 1975-78 when his possession has been recorded for seven years. The suit was filed in 1985 and this covers the prescribed period of 12 years. The appellant has perfected his richt in respect these two plots which will be evideint from the documents filed by the respondent-plaintiff hinself. The genuineness or otherwise of the document exhibit P.P.1 is doubtful for other reasons and the appellant- \\\-... i I defendant doubts that it has been subsequently made out after the case was remanded back to the trial Court for finding this limited question of relationship. The relationship of the respondent-plaintiff with Charandas and Padam Dhoj has also been made out in this document and has connected the same with the respondent-plaintiff. If such a document was made and was in existence previously then it oucht to have come out in the pleadings or in the evidence of the respondent-plaintiff earhier. It was the case of the respondent-plaintiff previously that the land belonged to bin and that it was wrongly recorded in 1975 survey in the name of Padam Dhoj Rat. It was in the possession of Dhan Rupi Raini. After the death Qf Dhan Rupi Raini the panchayat and the elders gave the said property to the respondent-plaintiff. But the case now made out is completely different and therefore, no reliance should be placed upon the document 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 .-:_:- 10 passed in Civil Review Application No. 5 of 1998 which reads as follows:- "5. So far as the claim of Defendant No.1 is concerned regarding 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 reopened before the trial Court." After the case was remanded back to the trial Court for hearing on the aforesaid question regarding relationship of Chandradas Rat with Rajamn Raf; the respondent-plaintiff led evidence in the case on 27th September

#1999. The appellant-defendant No.I had to lead evidence on 7th october `

#1999. However, on 7th October 1999 the appellant-defendant No. 1 represented by a lawyer could not produce his witnesses on his behalf. On the other hand, the appellant-defendant No.1 submitted that he was unable to bring his witness as the witness was not in a condition to depose due to illness. M. Moulik submitted that one witness was lying ill, there was no bar for the appellant-defendant to produce another witness. However, he was given tine till llth October 1999 to produce witness to support his defence. On llth October 1999 the appellant-defendant No.1 a 11 neither produced witness .nor he had made any prayer for examination of witness on conmission or any prayer for summoning any witness or prayer 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 not given sufficient opportunity to lead evidence in support of his case. Mr. Moulikaguedthatafterconsideringtheevidenceonrecordandkeepingin Hind the Judgment of the trial Gout passed in Civil 1St Appeal No. 1 of 1998 and the Judgment of Civil Review Application No. 5 of 1998, the Civil Judge had considered the statements of the witnesses namely Jardas Rai and Birkhanan Das. After duly consideing the statements on oath of these two witnesses, the Civil Judge delivered Judgment on 30th October 1999 and had come to definite fading that Charon Das was the brother and co-sharer of Rajman Rai. M. Moulik argued that appellant in his appeal did not urge any point indicating fault with the judgment and orders of the Civil Judge. M Moulik has drawn attention of the Court to the paragraph 34 of the judgment dated 30th October 1999 which reads as follows :- © •-If 12 "34. Nevertheless, it must be noted that PW-2, has also deposed that the defendant No.1 is also related to him being the husband of PW-2's grand daugiver. This fact in my opinion mititates the possibility of PW-2 being an interested party and hence PW-2 can thus be relied upon by this Court as an independent witness." M. Maulik argues that the trial Court observed that witness Jardas Rai is well conversant with the family ties of the' parties. According to witness Jardas Rai, he knows the sons of Rikidhan Rai, who are Charandas Rai and Rajman Rai and who have already died. Rajman Rai has one son and one dauchter, Padamdhoj and Dhan Rupi Rai. The trial Court has observed that the relationship between Charandas Rai and Rajman Rai as brothers has been established. Under cross-examination this fact has not been controverted. The dial Cout at paragraph 38 of the Judgment has given fading that the respondent-plaintiff has been able to establish the fact that RIki Dhan Rai has two sons Charandas Rat and Rajman Rai. At paragraph 41, the trial Court has come to conclusion that the issue, namely the relationship between Charandas Rai and Rajman Rai as brothers and co-sharer has been proved and established in favour of the \ ,-.` 13 plaintiff. Winess Jardas Rai has categorically stated that he knows the sons of Rikidhan Rai who are Charandas Rai and Rajman Rai, both of whom are no more. He has further established that Charandas Rai has one son, who is the respondent-plaintiff. Rajman Rai has one son and one dauchter. He further stated that Bir Bahadur Rai, appellant-defendant No.1 has migrated from Nepal. This witless does not know any one, n.aned Lakhman Rai and Daulat Rai. In cross-examination, nothing could be brougiv out by the appellant-defendant No.1 to support that witness Jardas Rat is an interested witness and that he has not broucht out the tnrfu in his evidence. In cross-exarination, only some formal suggestion u has been given to this witness and the witness has just denied such suggestions. Except such negative suggestion, no concrete evid; nee has come forward from the witness to support the case of the appellant. M.Moulik argued that the relationship between Charandas Rat- ,and Rajman Rai has also been proved by the respondent-plaintiff. The relevant portion of the deposition of Aringdas Rai reads as fonows :- .`:.,,. 14 "The suit land originally belonged to late Rikidhan Rai who obtained the law from the Maharaja of Sikkin about 100 years ago. Late RIkidhan had two sons namely Charandas Rai and Rajman Rai. I am the only tiving son of Charandas Rai. Rajman Rai had only one son Padamdhoj Rai who is traceless for the last ab.out 32 years and he has no issue as he was not even married. Rajman had only one dauchter namely Dhanrupi Raini. Dhanrupi died in the year 1971 without being marred and she had led the life of a Sannyashi. After the death of my grand- father the suit land devolt upon my father Charandas Rai he being the eldest son. Rajman died expired before 10 years of the death of my father Charandas Rai. My father died in the year 1943. I have been enjoying the suit land fi-om my very child hood along with my father, uncle and grandfather. The suit land according 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 of Padamdhoj Rat and Dhanrupi Raini. I was in joint farfuly with Padandhoj Rai and as such I `was in possession of the suit land as owner with them. On the death of Dhanrupi Raini I performed 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 relevant portion reads as follows :- "I know Padamdoj Rai who happened to be the son of Rajman Rai. Charandas Rai was the father of Aringdas Rai. Charan Das Rai and Rajman Rai are brothers. I know both Charandas and Rajman. Both of them are dead. Charandas Rai is the elder brother. Charan Das Rai and the Rajman are the full blood brothers. Padamdhoj had one sister named Dhanrupi who is also dead. Whereabout of Padamdhoj is not known since about 30/35 years. Both Padamdhoj and his sister were urmarried." M.Moulik argued that Aringdas Rai is a "BANTWA" Rai and his grandfather RIkidhan Rai is also a "BANTWA" Rai whereas Bir Bahadur is a "KULUNG" Rai. This statement of PW-3 Ram Karan Das Rai was not controverted by app61lant-defendant No.1. Therefore, the relationship of Aringdas Rai son of Charandas Rai with another son of RIkidhan Rai namely Rajman Rai is established beyond reasonable doubt. M. Moulik has argued that the khatiyan parcha relating to the suit land shows the name of the respondent-plaintiff as the owner. The khatiyan parcha shows that the respondent-plaintiff has all along paid rent relating to the suit land. Document signed by the respondent- wh, 16 plaintiff and the appellant-defendant No.1 shows that the appellant- defendant No. 1 is an Adhyar under the respondent-plaintiff. Exhibit P-12 is an application by the appellant-defendant No.1 to the Chief Minister. In this application he never claimed hinself as the relative of Padandhoj .Rai or that of Dhanrupi Raini. On the other hand, the respondent-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 litigations between the respondent-plaintiff and the appellant-defendant No.1, the appellant-defendant No.1 had ever claimed as the relative of late Padamdhoj Rai or that of Dhalirupi Raini. Mr. Moulik argued that in paragraph 13 of the Judgment passed in Civil lst Appeal No.1 of 1998, the H8h Cout observed that the appellant-defendant No.1 never claimed ownership over any portion of the suit land by virtue of inheritance or by way of adverse possession. I ® 17

#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, the respondent-plaintiff was dismissed. Thereafter, the respondent-plaintiff preferred an appeal before the ffich Court. Vide judgment dated 7th September 1998 passed in Civil First Appeal No.1 of 1998 (Aringdas Rat v. Bir Bahadur Rai), the Ifi8h Court allowed the appeal and the judgment and decree passed by the trial court was set aside and the case was remanded to the ulal court for deciding the issue whether Charan Das was the brother and co-sharer of Rajman Rai. For this purpose, the Hch Cout also held that the parties should be given opportunity to adduce further evidence. The operative part of the Judgment dated 7th September 1998 is reproduced below :- "20. Coming down to the case of plaintiffrfumust be noted that in the instant case he has first to establish his title over the property which is possible only if he can tie up Chandradas with Rajman as clained by bin in his plaint and evidence; but the evidence in this respect is not thorouchly independent and trustworthy. The Plaintiff s case would have failed for want of such evidence but that would keep the dispute between the paties alive which is not desirable. The Plaintiff should be given a chance to prove this \"^`.,.. i-__ 18 aspect.of the case before the trial Court with rigiv to the defence to try 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 set aside and the case is remanded back to the dial Court for deciding the issue whether Chandradas was the brother and cosharer of Rajman. For that purpose the parties should be given opportunity to adduce further evidence. After coming to a decision on the aforesaid point and in consideration of the observations made in the body of this judgment regarding other points, the leaned trial Court would 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 Civil Review Application No.5 of 1998 with the following prayers :- "In the circumstances the petitioner most humbly prays that Your Lordship may be graciously pleased enouch to consider this review petition and review the judgment and orders passed on 7.9.98 in Civil Appeal No: 1 of 1998 and be further pleased to pass the following orders to the effect :- a) to consider and hold that on the basis of the evidence on record both oral and documentary it has been proved and established that Charandas Rai was the full brother of Rajman Rai and accordingly Charandas Rai was a co-sharer W 19 with Rajman Rai in respect of the properties left by Rikidhan Rat the father of Charandas Rai and Rajman Rai; b) to Consider and hold and declare that the petitioner plaintiff has been able to prove that even independently of the relationship between Charandas Raf and Rajman Rat, he is the owner of 8 annas share in the suit properties and he is entitled to get declaration to that effect. c) to consider and hold that the petitioner/plaintiff has proved that he has right, title and interest on the entire suit property and 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 the reliefs as prayed for by the petitioner/plaintiff in the suit; e) to pass any other order/orders which the Hon'ble court may deem fit and proper in this case in the interest of justice." in Civil Review Application No. 5 of 1998 this Court Observed that while dealing with the judgment of the dial Court, it never rejected the evidence either oral or documentary available within the record to establish the plaintiff s interest over the suit property. The only deficiency as noted by this Court was that a little more evidence.on behalf of 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`' 20 giving opporfurity to the plaintiff. In paragraph 5 of the judgment passed in the Review application, this Cout held so far as the claim of the defendant No. 1 is concerned regarding ownership over the land in I question, it has been held in the judgement that the defendant No. 1 fuled to 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 7th November 1998 passed by this Cout in Civil Review Application No. 5 of1998(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 the Appellant ultinately cane to this Gout with Civil Appeal No.1 of 98 which was disposed of by this Cout on 07.09.1998 by an orderofremandtothelowerCoutforalimitedpulpose.

#3. The Appenant has come up with this Review petition with the contention that the ounership of atleast. 8 anas sliare of Charandas in the suit properties should have been specifically declared in the Appellate Cout judgment. It has firfuer been contended that fi.om the evidence on record the Appellate Coot shouldhaveheldthatCharandaswasthebrotherofRajman.

#4. It is the contention of the Petitioner that there are sufficient materials on record to hold that Charandas and Rajman 0 \i\/.' 21 were two brothers inheriting equal interest over the suit properties from common ancestor. In the judgment it has been cleady indicated that it is the Plaintiff (Appellant here) who is to prove his title over. the suit properties. It has been observed in the judgment that the evidence on record are not sufficient to come to a definite conclusion. This Court while dealing with the judgment never rejected the evidence, either oral or documentary available within the record to establish the Plaintiff's 16 armas interest over the suit properties. The only deficiency as noted by this Court was that a little more evidence on behalf of the Plaintiff was/is necessary to prove the Plaintiff s case conclusively. That is the reason for which the case was remanded to the trial Court for alving opportunity to the Plaintiff.

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

#6. We may note once again that before the trial Court, on remand, the Plaintiff would get scope to get his case proved in conclusive manner by producing additional evidence. Defendant No.I has however been given an opportunity to rebut the evidence which might be adduced by the Plaintiff before the 'trial Cout after remand.

#7. Therefore, we find liffie ground to reopen the matter on the application for review. We camot accept the plea of the Appellant that the matter should be settled by this Court itself by reviewing its judgment on the basis of the evidence on record as otherwise the matter would get delayed." © I I I W, 22

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

#8. The plaintiff by way of further evidence producred a document dated 15th February 1966 executed by Dhan Rupi Raini in the presence of witnesses in respect of the suit property. Tvyo witnesses Jardas Rai and Birkha Man Rai were examined on 27th September 1999. The defendant did not produce any witnesses and cross-examined these witnesses. Witness Jardas Rai in his deposition has stated that he knows the sons of RIki Dhan as Charan Das Rai and Raj Man Rai. As per this witness, 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 named Dhan Rupi Raini. This witness further deposed "Padam Dhoj became \,, : - 23 traceless and was not married. Dharmipi also did not many. She died in

#1971. Bir Bdr. Rai Def. No.1 has migrated from Nepal. I do not know anybody named Lhakman Rai and Daulat Rai." This witness fu[ther deposed that the document dated 15th February 1966 was prepared by •Dhan Rupi Ralni in presence of witnesses by which the suit property was given to the plaintiff being the `hawkala' in pres.ence of witnesses such as Sukman Rai, Mandal, Kesherman Gurmg, Sanman Rat, Man Bahadur Raf and Witness Jardas Rai himself and that exhibit P.P.1 was scribed by one M.B. Tanang on the request of Dhan Rupi Raini. Jardas Rai identified and proved his signature on exhibit P.P.1 as exhibit P.P.1 `a' and the signature of Mandal Sukman Rai as erdihit P.P.1 `b', Kesheman Gurung's signature as exhibit P.P.1 `c' and signature of San Man Rat and Man Bahadur Rai as exhibit P.P.1 `d' and P.P.1 `e' respectively. Exhibit P.P.1 `f' was identified as the signature of the scribe M.B. Tamang and exhibit P.P.1 `g' was identified as the partially visible thumb inpression of Dhan Rupi Raini. This witness deposed that the scribe no longer resides in Sikkim and of the four, other witnesses only San Man Rai is •-ir 24 still alive but is aged 75 years and hard of hearing. Trial Court recorded that the learned Counsel for the defendant No. 1 strongly objected to the document dated 15th February 1996 being exhibited and marked as exhibit P.P.1 and to the identification of exhibit P.P.1 by PW-1, and the identification of ezrfuibit P.P.1 `c' to P.P.1 `g.'. After a thorouch discussion the trial cout is of the view that reliance carmot be pressed on the documents dated 15th February 1966 and while rejecting the said document the trial court observed as follows :- "37. ..................... the plaintiff has not been able to satisfy this Court as to how the same'has nriraculously been produced at this stage despite the fact that it pertains to the root of the dispute between the parties and which dispute has been adduced and advanced before several foruni. Further, the plain.tiff s clain that he was unable to produce the same earlier but has only "very recently recovered one docunient dated 15.2.66 from the waste paper basket after a great search" is a most unconvincing explanation especially when it pertains to so vital a document, and hence in my opinion by no stretch of imagination can a Court of law rely on such a 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 25 not know the wife of Charan Das as he had never seen her. Charan Das died in the year 1943 when witness Jardas Rai was aged abou't 7 years. In cross-examination, he fi}rther admitted that Aringdas Rai, the respondent- plarfuiff is, his brother and he also admitted that the plaintiff s contention that the suit land stands recorded in his name in the first survey operation in 1950-54 and the` second survey operation of 1979-80 is correct. In the crossTexamination, this witness has stated C:statement of the plaintiff that he is the owner of suit land but in the survey operation of 1979-80 the said land was wronaly recorded in the name of Padam Dhoj Rai is a colTect statement of the plaintiff. It is also collect that when the suit land was wrongly recorded in the name of Padam Dhoj Rai the plaintif had made a complaint to the Amin. The statement of the plaintiff that, thouch the suit land was wrongly recorded in the name of Padam Dhoj Rai, but he is in continuous possession from his childhood is a correct statement. The suit land is the personal property of plaintiff inherited from Charan Das Rai. The statement of the plaintiff that the suit land never belonged to Padam 26 Dhoj Rat is a coITect statement. It is not a fact that my above statement are false statement."

#10. Birkha Man Das, another witness was exalnined on 27th september

#1999. 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 his grand danchter. He further stated that he had seen Riki Dhan Rai in his childhood and that Charan Das R,ai and Raj Man Rai were the two sons of Riki I)han. Rai. According to this witness, Aringdas Rai, the respondent- plaintiff is the son of Charan Das and Padam Dhoj Rat and Dhan Rupi Raini are the son and dauchter of Raj Man Rai. Padam Dhoj Rai went missing and remained trmarried. This witness stated that Dhan Rupi Raini died about 30 years ago and was a Lamini (nun) and was not married. He has also stated that he does not know anyone by the name of Lalman or Daulat Man Ral. It is also stated that the respondent-plaintiff has 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 27 and he lives at Dalapchen and cultivates his own land at RIgu. Besides cultivating his own land he does not cultivate any other land of any other person. Aring Das Rai, respondent-plaintiff has not filed the suit against the son of this witness, IIari Das Rai in respect of the suit land of the present case. 'Ihis witness under cross-examination admitted that respondent-plaintiff is the husband of his only dauchter. He does not know the wife of of Riki Dhan Rain or about his brothers. He does not kliow when Rife Dhan expired. He does not know the wife of Charan Das Rat or when either of them died, nor does he know where Charan Das used to live during his life time.

#11. Oral evidence of the respondent-plaintiff's witnesses examined by the trial Court clearly goes to establish the relatiouship between Charan Das and Padan Dhoj Rat as brothers. Jardas Rai proved that the respondent-plaintiff and Padam Dhoj Rai were brothers being sons of Charan Das Rai and€Raj Man Rai, who in ttm were the sons of RIld Dhan Rai. The respohdeut-plaintiff's witness Jardas in his evidence had clearly ``\`: ,.` 28 established that the father of the respondent-plaintiff Charan Das Rai and Raj Man Rai are brothers. The witness is related to the respondent- plaintiff and knows all family ties of the respondent-plaintiff. Jardas Rai is a village elder and is well acquainted with his villagers and was also a witness. Birkha Man Das is 86 years old and shows that witness Birkha has knowledge of the family ties of both parties. Witness Birkhaman had seen REd Dhan and deposed that Charan Das and Raj Man are the two sons of REd Dhan and Aring Das, respondent-plaintiff is the son of Charan Das while Raj Man had a son called Padan Dhoj Rai and u dauchter Dhan Rupi Raini. The evidence of both witnesses carmot be disregarded. The evidence of these two withesses estabrished that Charan •bas Raf and Raj Man Raf are brothers. I agree with the conclusion reached by the leaned dial Cout that both the witnesses Jardas Rai and Birkha Man Rai produced by respondent-plaintiff are elderly persons of the village and there is no reason that their evidence is to be doubted as the witness, Jardas Rai is 65 years old and witness Birkhanan Das is aged 86 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-defendant No.1 Bir Bahadur Rai is also related to him being the husband of Birkhanan Das's grand daughter. Therefore, Birkhanan Das camot be said to be interested witness and evidence of Birkhanan Das was richtly relied upon the thal Court as an independent witness. As regards the evidence of Jardas Rai, it also clearly goes to show that he is conversant with the family ties of the parties. Jardas Rai has deposed "I know the sons of RIki Dhan Rai, they are Charan Das and Rajman Rai, both of whom are no more." Jardas Rai also stated that Rajman had one son and one dauchter named Padam Dhoj Rai and Dhan Rupi Raini. The evidence of Birkhanan Das in establishing the relationship between Charan Das Rai and Rajman Rai as brothers is clear as he deposed " I also 'know Charan Das and Rajman Rai who are the two sons of Riki Dhan Rai." Under cross-exarination, this fact has not been controverted and there is nothing in cross-examination of Birkhanan Das to demolish that --iv/ ^ 30 statement and therefore, the trial Court has richtly relied upon the L evidence of these witnesses. The trial Court came to the conclusion that the plaintiff has been able to establish the fact that Rjki Dhan Rai had two sons Charan Das and Raj Man Rai, as is evident from the oral evidence adduced 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 relevant observations of the Hon'ble Ifich Court in Civil Appeal No.1/98 Aringdas Rai Vs/- Bin Bahadur Rai and another, in that the Hon'ble lfich Court held that (`a) Padan Dhoj Rai must be presumed to be dead, under the dven circumstances Q'ara 8) (b) Dhan Rupi Raini dies issueless Q?ara 9) (c) That the claim of acquisition of title over the property by way of adverse possession is belated and casual in nature. The evidence in this respect is very scanty. Defendant No.1 put main stress ori long possession but. we have already noticed that mere long possession cannot confer title Q'ara 11). (d) The status of defendant No.1 carmot be more than an `adhiayar' Q'ara 19) " as till before 1984 the, defendant No.1 never clained ownership, rather he accepted the _-:-r------,- 31 ut**,i. 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 Rai and others this Court held that so far as the claim of defendant No.1 (appellant)isconcemedregardingownershipoverthelindinquestion, it has been held in the judgment passed in Civil lst Appeal No. 1/98 that the defendant No.1 (appellant) faded to establish that. That becomes a closed chapter twhich would not be reopened before the trial Court. q

#12. Records show that the respondent-plaintiff led evidence in the case before the trial Court on 27th September 1999. The appellant-defendant j> had to lead evidence on 7th October 1999. But the appellant did not produce his witnesses on 7th October 1999. The appellant-defendant` submitted that he was unable to bring his witness as the witness was not in a condition to depose due to illness. One witness may be lying fll, but there was no bar for the appellant-defendant No. 1 to produce another whessTheappeuantwasrepresentedbyla#thouchm 32 the trial Court. However, the appellant was given tine till llth October 1999 to produce witness to support his defence. On llth October 1999, the appellant neither produced witness nor fie applied for .examination of witness on commission. This is a Civil Suit of 1985. I am of the view that sufficient opportunity was given to the appellant by the trial Cqurt and he did not avail of it.

#13. I hold that Charan Das Rai was the brother and co-sharer of Raj t- Man Rai. I am in full agreement of the findings of the trial Court. I am also in the agreement with trial Court that respondent-plaintiff is entitled to 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 no order as to costs. ( ANUP DEB ) JUDGE