JUDGMENT Wangdi, J. 1. This Appeal arises out of judgment dated 25-03-2013 in Title Suit Case No.2 of 2008 passed by the Learned District Judge, South and West Sikkim at Namchi by which suit for partition, recovery of possession, damage and consequential reliefs filed by the Appellant was dismissed. 2(i). To state briefly, the case of the Appellant-Plaintiff was that his father Late Harka Bahadur Chettri, resident of Salangdang, West Sikkim, had two wives. While the Appellant-Plaintiff, Tula Rama Chettri and the Respondent-Defendant No.4, Dilli Ram Chettri, are the issues out of first wife, the Respondents-Defendants No.1 and 2 are the sons and the Respondent-Defendant No.3 is the grandson of Late Harka Bahadur Chettri born from Late Tara Kumar Chettri, his eldest son, from his second wife, Smt. Bhagi Maya Chettri, Respondent-Defendant No.5. (ii) It is stated that on 01-01-1974, the properties held by Harka Bahadur Chettri were partitioned in equal shares amongst the Appellant and the Respondents and that the peculiar feature of the partition was that the apportionment of the properties was made in equal halves between the two wives of Late Harka Bahadur Chettri. On the same day, another document was prepared by which the liability of a loan amounting to Rs.1,400/-(Rupees fourteen hundred) outstanding against Late Harka Bahadur Chettri was also apportioned equally in the same manner. The Appellant’s case is that although the partition did take place, it was never given effect to and their father continued to act as a ‘karta’ of the Hindu Undivided Family constituted by himself, the Appellant and the Respondents and, that the partition deed still remains unregistered. That in 1984, Late Harka Bahadur Chettri, in the capacity of ‘karta’ of the family sold out a portion out of the joint property described in Schedule ‘B’ as Plot No.447 measuring about 1.29 acres as per the survey of 1950-54 corresponding to Plot Nos.760 and 762 measuring 0.1080 and 0.6900 ha. situated at Lungchok Block, West Sikkim, to one Dik Maya Gurung, wife of Bom Bahadur Gurung of Dodak for a consideration value of Rs.19,000/-(Rupees nineteen thousand). (iii) Harka Bahadur Chettri died in June/July, 2003, without affecting a fresh partition although he had desired to do so and that the expenditure towards his death ceremony was met out of the common kitty of the joint family. (iii) Harka Bahadur Chettri died in June/July, 2003, without affecting a fresh partition although he had desired to do so and that the expenditure towards his death ceremony was met out of the common kitty of the joint family. (iv) In June-July, 2006, a link road was constructed under the PMGSY Scheme from Daramdin to Lungyam through their land against which compensation amounting to Rs.27,000/-(Rupees twenty seven thousand) was sanctioned which was illegally received by the Respondent No.5, Smt. Bhagi Maya Chettri, who refused to share it with the Appellant. The Appellant asserts that he had a right over an equivalent share of that amount. Against this, he had approached the concerned Panchayat Member and Village elders who forwarded the matter to the SDM, Soreng and District Collector, West Sikkim at Gyalshing, but without any result. The Appellant claims that he is in exclusive possession of an area measuring 0.40 acres out of Schedule ‘A’ land while the Respondents 1, 2, 3 and 5 are in possession and enjoyment of land out of Schedule ‘A’ far in excess of their shares. (v) The Respondents, on the other hand, have not denied that the partition had taken place on 01-01-1974, vide ‘Banda Patra’ (deed of partition) Exhibit ‘A’, and that by agreement Exhibit ‘B’ executed on the same day the liability of Rs.1,400/- was also to be shared equally between the Appellant and the Respondents. However, as per them, contrary to the case of the Appellant, immediately after the partition the parties had taken over possession of their respective shares and the position continues even today. Plot No.447 measuring about 1.29 acres, i.e., the Schedule ‘B’ property which is a portion of the share of the Appellant, was sold by the Appellant to one Dik Maya Gurung vide Sale Deed, Exhibit 1, to meet his own expenditure. The sale deed was signed by the father, Harka Bahadur Chettri, as the land stood recorded in his name. 3. The Learned Trial Court, upon consideration of the pleadings and submission on behalf of the respective parties, had framed as many as 9 (nine) issues which we may reproduce below:- (i) Whether the Schedule ‘A’ property is a joint family property and is liable to be partitioned amongst plaintiff and defendants? (ii) Whether Late Harka Bahadur Chettri paid the loan amount outstanding against him after selling the Schedule ‘B’ property to Dik Maya Gurung? (ii) Whether Late Harka Bahadur Chettri paid the loan amount outstanding against him after selling the Schedule ‘B’ property to Dik Maya Gurung? (iii) Whether Late Harka Bahadur Chettri wanted to effect a fresh partition deed after selling the Schedule ‘B’ property based on meets and bounds after cancelling the ‘Banda Patra’ dated 01.01.1974? (iv) Whether the plaintiff is entitled for his share in the compensation amount of Rs.27,000/-(Rupees Twenty Seven Thousand) only received by the defendants under P.M.G.S.Y. Scheme with 5% per month? (v) Whether the plaintiff is entitled to the relief as prayed for? (vi) Whether the suit of the plaintiff suffers from cause of action and has been brought against the defendants for illegal gains? (vii) Whether all the landed properties once owned by Late Harka Bahadur Chettri including ‘Schedule A’ and ‘Schedule B’ were equally and evenly partitioned on mutual consent of the parties and the same was reflected in the ‘Banda Patra’ and family agreement dated 1.1.1974? (viii) Whether ‘Schedule B’ property had fallen in the share of the plaintiff and the same was later sold by him to Dik Maya Gurung? (ix) Whether the land acquired under P.M.G.S.Y. was solely in the share of the defendant No.2 as per the ‘Banda Patra’ and family agreement dated 1.1.1974 and hence the compensation amount of Rs. 27,000/-(Rupees Twenty seven Thousand) only, cannot be shared among the other parties? However, while dealing with the above, the Learned Trial Court had taken up issues No. 1, 7 & 8, 2 & 3, 4 & 9 and, No. 5 & 6, together for the sake of convenience. Upon consideration of the evidence on record, the Learned Trial Court decided all the issues against the Appellant thereby dismissing the Suit in terms of the impugned judgment. 4(i). Pressing the Appeal, Mr. A.K. Upadhyaya, Learned Senior Counsel, appearing on behalf of the Appellant, stressed on the fact that the property had although been partitioned on 01-01-1974 vide Exhibit ‘A’ it continued to remain a joint property and recorded in the name of their father, Late Harka Bahadur Chettri in the revenue records as the partition was never given effect to. It was submitted that the father during his lifetime had, in the capacity of a ‘karta’ of the Hindu Undivided Family, sold plot no.447 described in Schedule ‘B’ to pay off certain debts which he owed. It was submitted that the father during his lifetime had, in the capacity of a ‘karta’ of the Hindu Undivided Family, sold plot no.447 described in Schedule ‘B’ to pay off certain debts which he owed. As per him, this fact alone would go to show that the property had remained joint. It is submitted that the sale deed, Exhibit 1, would clearly reveal that it was Harka Bahadur Chettri, their father who had sold the land. (ii) By referring to the evidence of Nand Keshav Sharma, P.W.2, it was submitted that the fact that it was the father who had actually sold the land stands established by the evidence of this witness who was the scribe of the sale deed, Exhibit 1, when it is stated by him that “on 06/01/84 said Harka Bahadur Chettri came and told me that he wanted to sale plot No. 447 standing in his name to Smt. Dik Maya Gurung of Dodak, West Sikkim for the consideration value of Rs. 19,000/-(Rupees Nineteen thousand) only and therefore, requested me to scribe Exbt.1.” This fact, as per him, is corroborated by Keshar Singh Chettri, P.W.3, an attesting witness to the sale deed, Exhibit 1 and had in most categorical terms deposed that “the above said Plot was not sold by the Tula Ram Chettri in fact it was sold by his father, Harka Bahadur Chettri”. It is strongly urged that the Learned District Judge in her impugned judgment failed to appreciate such glaring evidence in deciding the relevant issues against the Appellant. (iii) Relying upon the portion of the statement of P.W.3 in his evidence that “I heard the plaintiff’s father telling Tula Ram the plaintiff that he would settle the matter with regard to the suit land”, it was submitted that the father Harka Bahadur Chettri had intended to have a fresh family partition since the sale of Schedule ‘B’ property had altered the position and the partition deed dated 01-01-1974, Exhibit ‘A’, had been rendered redundant. In view of this, it was urged that the Learned District Judge ought to have held that the compensation of Rs.27,000/- against land affected by the PMGSY road was liable to be shared equally amongst the members of the joint family. 5(i). Mr. In view of this, it was urged that the Learned District Judge ought to have held that the compensation of Rs.27,000/- against land affected by the PMGSY road was liable to be shared equally amongst the members of the joint family. 5(i). Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Respondents, on the other hand, submitted that the partition deed 01-01-1974 effected vide Exhibit ‘A’ and the share of liability fixed by Exhibit ‘B’ had assumed finality on the very day of the partition as in accordance with the partition, they along with the Appellant had taken over possession of their apportioned shares. That it was the Appellant who had himself sold the Schedule ‘B’ land to Dik Maya Gurung out of his share to meet his own liabilities. The father, Harka Bahadur Chettri, had simply lent his signature at the request of the Appellant since the land stood recorded in the name of the father, Harka Bahadur Chettri. (ii) The land which was affected by the PMGSY road was a portion which fell in the share of Ghana Shyam Chettri, Respondent No.2 and, therefore, the compensation of Rs.27,000/- had been received by his mother, Smt. Bhagi Maya Chettri, the Respondent No.5. (iii) As per him, the Learned District Judge had decided the case against the Appellant after proper appreciation of the evidence. 6. On a careful consideration of the records and the respective submissions on behalf of the parties, I am inclined to conclude that there is no merit in the Appeal as the impugned judgment appears to be a well-considered one except to the extent that shall be recorded later. 7(i). Before entering into the merits of the case, it is felt appropriate to deal with the finding of the Learned Trial Court on issue no.(vi), i.e., “Whether the suit of the plaintiff suffers from cause of action and has been brought against the defendants for illegal gains?” as the Appellant has raised this question quite seriously. (ii) The Learned Trial Court has held that no cause of action for filing the suit has been made out in the Plaint as in its view the averments contained in the Plaint are obviously vague and there are no material facts and particulars in the Plaint. This finding, in my view, is on a bare reading of the Plaint, quite erroneous and also perverse. This finding, in my view, is on a bare reading of the Plaint, quite erroneous and also perverse. (iii) As already discussed, the case of the Appellant’s is that although there was a partition of the properties amongst the Appellant and the Respondents on 01-01-1974 by virtue of ‘Banda Patra’ executed on that day, it was not given effect to and the property continued to remain joint and recorded in the name of the father, Late Harka Bahadur Chettri. It was also his case that the father intended to have a fresh partition but died in June/July, 2003 without doing so. In this backdrop, the cause of action for filing the suit has been found set out in paragraphs 10 to 14 which may reproduce below for convenience:- “10) That during the month of June-July 2006, a link road from Daramdin to Lungyam was constructed under the P.M.G.S.Y. scheme and a compensation amounting to Rs. 27,000/-(Rupees Twenty Seven thousand) only, was sanctioned the said compensation amount of Rs. 27,000/- was most illegally received by Smt. Bhagi Maya Chettri, the Defendant No. 5 and they did not share with the plaintiff even a single paisa. Even defendant No. 4 was not paid any share of the said compensation money. In all fairness the compensation amount ought to have been paid by the authority only after obtaining succession certificate in favor of all the legal representatives of Late Harka Bahadur Chettri and the person claiming under the legal representatives, as they are liable to pay the share of the compensation money as well as interest at the market rate @ 5% per month to the plaintiff. 11) That the plaintiff also requested the ward Panchayat member and other village elders to settle the issue of the non-sharing of the compensation amount of Rs. 27,000/-(Rupees Twenty seven) only. The Panchayat forwarded the matter to S.D.M. Soreng & D.C. West at Gyalshing, West Sikkim and requested that the authority may take necessary steps. However, the matter has not been settled and the compensation amount has not been paid to the plaintiff so far. Hence thus suit for partition. 27,000/-(Rupees Twenty seven) only. The Panchayat forwarded the matter to S.D.M. Soreng & D.C. West at Gyalshing, West Sikkim and requested that the authority may take necessary steps. However, the matter has not been settled and the compensation amount has not been paid to the plaintiff so far. Hence thus suit for partition. 12) That from the time of the lifetime of the father the plaintiff is in exclusive possession of the landed property measuring approximately 0.40 Acers (40 decimals) from the schedule ‘A’ land which may be taken into consideration at the time of partition of the entire schedule ‘A’ land. 13) That the defendant no. 1, 2, 3 and 5 are in possession & enjoyment more than their share property as such they are also liable to pay damages as such they are liable to make god of the damages to be paid to the plaintiff. 14) That the cause of action to file the instant suit arose sometimes in the month of June-July 2006, when the defendants No. 1, 2, 3 and 5 refused to share the compensation of Rs. 27,000/-(Twenty Seven Thousand) among all the legal representative of Late Harka Bahadur Chettri that is the plaintiff and the defendants No. 1, 2, 3 and 4.” (iv) As can be made out from the aforesaid pleadings the cause of action to file the suit arose when the compensation for the land affected by the PMGSY road was received by the Respondent No.5 in exclusion of the others including the Appellant. In my view, cause of action to file the suit has been clearly made out rendering the finding of the Learned Trial Court erroneous and perverse and accordingly this part of the finding of the Learned Trial Court in the impugned judgment stands set aside. 8(i). In my view, cause of action to file the suit has been clearly made out rendering the finding of the Learned Trial Court erroneous and perverse and accordingly this part of the finding of the Learned Trial Court in the impugned judgment stands set aside. 8(i). Now, moving on to the merits of the Appeal it is found that the crux of the Appellant’s case is that although the partition of the family properties had taken place in terms of the partition deed, Exhibit ‘A’, it was never given effect to and the properties had continued to remain joint which is borne out by the fact that it remained recorded in the name of the father Harka Bahadur Chettri and also by virtue of the fact that the father had sold Schedule ‘B’ land in the capacity of ‘karta’ of the Hind Undivided Family constituted by the Appellant and the Respondents as late as in the year 1984 which is about 10 years after the partition of 01-01-1974. (ii) In support of the Appellant’s contention, the only documentary evidence available is the sale deed, Exhibit 1, in respect of Plot No.447 executed by Late Harka Bahadur Chettri in favour of Dik Maya Gurung, the purchaser. The question as to whether or not that sale transaction was entered into by Harka Bahadur Chettri as a ‘karta’ of the Hindu Undivided Family is, in my view, the most crucial one requiring consideration in the light of the evidence adduced by the Appellant. (iii) P.W.2, Nand Keshav Sharma, has no doubt stated that on 06-01-1984 Harka Bahadur Chettri had told him that he wanted to sell Schedule ‘B’ land to Dik Maya Gurung and requested him to scribe sale deed, Exhibit 1 and, that it was not the Appellant, Tula Ram Chettri, who had sold the land but his father, Harka Bahadur Chettri. This, however, does not shed light on the question as to whether partition of 01-01-1974 had been given effect to as asserted on behalf of the Respondents or abandoned as asserted by the Appellant. (iv) His statement appearing in the cross-examination to the effect that “I do not know the details of all the landed property of late. Harka Bahadur Chettri father of the plaintiff and defendants. (iv) His statement appearing in the cross-examination to the effect that “I do not know the details of all the landed property of late. Harka Bahadur Chettri father of the plaintiff and defendants. I am not aware of any “Banda Patra” prepared between the family members of the plaintiff and the defendants nor am I aware of the contents if such a document had actually been prepared. ……………. It is true that at the relevant time i.e 6.1.1984 the plaintiff did not tell me anything on this matter.”, would clearly indicate that the witness was not aware of the ‘Banda Patra’ (partition deed), Exhibit ‘A’ and whether or not the partition, had been given effect to. It, therefore, does not, in my view, support the case of the Appellant that the sale transaction vide Exhibit 1, even if it was entered by the father Harka Bahadur Chettri, was being entered as a ‘karta’ of the joint property as claimed by him. (v) Similar is the case as regards the evidence of P.W.3, Keshar Singh Chettri. His evidence is limited only to the factum of the sale having taken place as he was one of the attesting witnesses in the sale deed, Exhibit 1. To the contrary, his evidence in fact corroborates the case of the Respondents that the Appellant had assumed possession of his own share in pursuance of ‘Banda Patra’ (partition deed) of which the Schedule ‘B’ land was a part where he has stated that “It is true that the suit land was being cultivated and in the possession of the plaintiff”. I find the position further reinforced when in his own evidence, the Appellant as P.W.1, has admitted that “it is true that plot of land sold by my father to Dik Maya Gurung fell within my partitioned share. …………………. I remained in my father’s house even after the partition”. Even the Appellant’s claim that the father had decided to partition the properties afresh is not supported by any credible evidence. The stray sentence appearing in the evidence of P.W.3 that “I heard the plaintiff’s father telling Tula Ram the plaintiff that he would settle the matter with regard to the suit land” does not appear to support such contention being obviously vague and not at all indicative of such intention. The stray sentence appearing in the evidence of P.W.3 that “I heard the plaintiff’s father telling Tula Ram the plaintiff that he would settle the matter with regard to the suit land” does not appear to support such contention being obviously vague and not at all indicative of such intention. (vi) The entire story set out by P.W.3 in his examination-in-chief gets diminished when he states “since I am illiterate I cannot read the contents of the affidavit in evidence filed by me I also cannot write in Nepali although I can sign in Nepali”, and gives rise to grave suspicion on the veracity of the Evidence on Affidavit affirmed on 27-11-2009 and its confirmation on 18-02-2010. (vii) Unlikelihood of the Appellant’s case being truthful stands firmly demonstrated by the evidence of P.W.4, Dilli Ram Chettri, who is the uterine brother of the Appellant, i.e., born from the same mother, the first wife of Late Harka Bahadur Chettri. After clearly admitting the execution of the “Banda Patra’, Exhibit ‘A’ on 01-01-1974 and the family agreement, Exhibit ‘B’, to share the liability of father’s loan in two equal halves, he has stated as under:- “9. That though the possession of particular shares were taken over by the family members as per the guideline of the “Banda Patra”, however it was unanimously decided by them to continue the registration of the entire landed properties in the name of late Harka Bahadur Chettri since he was the “head and the Karta” of the entire family. 10. It is submitted that the properties mentioned in the “Scheduled A” are not a joint family property since the entire landed properties has already been equally and evenly partitioned through “Banda Patra” dated 01.01.74 between the family member of late Harka Bahadur Chettri and the respective shares were instantly taken over in possession by the members as per the guidelines of the “Banda Patra” despite the fact that the entire landed properties were still registered in the name of “Late Harka Bahadur Chettri”. 11. It is denied that late Harka Bahadur Chettri in the capacity of “Karta” of the family decided to sell the land mentioned in the “Schedule B” to Smt. Dik Maya Gurung. 12. 11. It is denied that late Harka Bahadur Chettri in the capacity of “Karta” of the family decided to sell the land mentioned in the “Schedule B” to Smt. Dik Maya Gurung. 12. It is submitted that as per the “Banda Patra” dated 01.01.74 the “Schedule B” properties was contentedly taken in possession by the plaintiff as his share and started cultivation but later during the year 1984, the plaintiff voluntarily and to meet out his own expenses sold his share i.e. the “Schedule B” property to Smt. Dik Maya Gurung as such he never made any objection before the authorities for the same. 13. It is submitted that late Harka Bahadur Chettri never wanted to affect a fresh partition based on meets and bounds. It is submitted that as per mutual family agreement a “Banda Patra” dated 01.01.74 had already been executed between the family members of late Harka Bahadur Chettri and therefore there was/is no need to affect any fresh family partition with respect to the landed properties registered in the name of late Harka Bahadur Chettri. …………………………………………………………………………….. 15. It is submitted that the said plot of land which was acquired by the government under the P.M.G.S.Y. scheme for road construction was under the occupation and possession of the defendant no.-2 as his share (as per the “Banda Patra”) hence the defendant no.-2 is sole entitled person to accept the compensation of Rs. 27,000/- from the authorities. …………………………………………………………………………….. 20. It is submitted that on 01.01.74, all the family members including late Harka Bahadur Chettri mutually agreed to share the entire landed properties equally and evenly among the family members through a “Banda Patra” and the possession of the particular shares were instantly taken over by the family members as per the guideline of the said “Banda Patra”. 21. It is further submitted that the plaintiff was provided an equal and even share with respect to the other co-sharer of the joint family but it was the plaintiff who sold his own share of land i.e. (schedule B) to one Dik Maya Gurung, wife of Shri Bom Bahadur Gurung and consequently his share of the landed properties became smaller.” [underlining mine] This witness has remained firm and unshaken in his cross-examination on all materials particulars as set out in his Evidence on Affidavit and nothing of substance has been extracted in his cross-examination to contradict those. (viii) As is obvious from the foregoing, the evidence of P.W.4 has been dealt with at length as he is the uterine brother of the Appellant to emphasise that had the Appellant’s case been true, it was expected of him to have supported the Appellant. D.W.1 (Respondent No.1) is the son of Harka Bahadur Chettri and brother of Appellant and Respondent No.4 through their step mother, Smt. Bhagi Maya Chettri, Respondent No.5, and so is Respondent No.2. The Respondent No.3 is the grandson of Harka Bahadur Chettri through the deceased son, Tara Kumar Chettri, from Smt. Bhagi Maya Chettri, Respondent No.5. In the evidence of Respondents No.2 and 3 as D.Ws 1 and 2, there is consistency and have corroborated the evidence of D.W.4 in all material particulars. In fact, the cross-examination of D.W.1, i.e., the Respondent No.1, makes an interesting reading, portions of which we may reproduce below for convenience:- “It is true I know late Harka Bdr. Chettri who is my father. It is true late Harka Bdr. Chettri had two wives. Late Harka Bdr. Chettri married my mother Bhagi Maya Chettri(defendant No. 5) after the demise of the first wife. It is true as per the family partition deed dated 01.01.1974, Plaintiff got paddy field of Lungchuk block and dry field at Salangdang block. It is true Plaintiff has his house constructed in the dry field at Salangdang. It is not a fact that the half of the house of Plaintiff is under our possession. It is true the compensation from PMGSY scheme in respect of land at Salangdang block was received by Ghana Shyam Chetttri as the said land taken by PMGSY scheme was the share of Ghana Shyam Chettri(defendant No. 2). It is true all the suit properties is still recorded in the name of our later father. It is true my father had taken loan of Rs.1400/- during his lifetime. It is not a fact that our late father sold away the portion of share of the land partitioned in the name of Plaintiff to pay the loan of Rs. 1400/-. It is true the paddy field of Lungchuk block with fell in the share of the Plaintiff was actually sold by the Plaintiff and since the land was recorded in the name of our father, he only signed on the sale deed document but the land was actually sold by the Plaintiff himself. 1400/-. It is true the paddy field of Lungchuk block with fell in the share of the Plaintiff was actually sold by the Plaintiff and since the land was recorded in the name of our father, he only signed on the sale deed document but the land was actually sold by the Plaintiff himself. ……………………………………” [underlining mine] The statements that have come out in the cross-examination emphasised above are answers to the questions put to him in his cross-examination on behalf of the Appellant. On a perusal of his evidence one cannot but conclude that the Appellant has admitted the case of the Respondents. This position stands confirmed also from the evidence of Hem Lall Chettri, D.W.6 and Hari Shankar Sharma, D.W.7, the relevant portions of which are reproduced below in seriatim:- Hem Lall Chettri, D.W.6 “3. On 01.01.1974, I along with other co-villagers were called by Late Harka Bahadur Chettri in his residence at Sombaria, West Sikkim and informed us that he intend to execute partition of his entire landed properties between family members of his family. The plaintiff was also present on the relevant time. 4. That as per the desire and mutual consent of the plaintiff and the defendants, the entire landed properties owned by late Harka Bahadur Chettri were evenly and equally partitioned between them and after due satisfaction of all the family members one “Banda Patra” dated -01.01.74 was prepared and consequently signed by the plaintiff, late Harka Bahadur, defendant no.5 and including me on the same. 5. Exhibit-A is the “Banda Patra” dated 01.01.74 executed between the family members of late Harka Bahadur Chettri bearing my signature marked as Exhibit-A (e). …………………………………………………………………………….. 8. It is further stated that the partition of the landed properties and the liabilities of late Harka Bahadur Chettri was implemented through the “Banda Patra” and “Family agreement” as per the mutual family settlement and soon after, the possession of particular shares were taken over by the family members as per the guidelines of the “Banda Patra”. …………………………………………………………………………….. 10. That though the possession of particular shares were taken over by the family members as per the guideline of the “Banda Patra”, however it was unanimously decided by family members including the plaintiff to continue the registration of the entire landed properties in the name of late Harka Bahadur Chettri since he was the “head and the Karta” of the entire family. …………………………………………………………………………….. 17. It is further submitted that the plaintiff was provided an equal and even share with respect to the other co-sharer of the joint family but it was the plaintiff who sold his own share of land i.e. (schedule B) to one Dik Maya Gurung, wife of Shri Bom Bahadur Gurung and consequently his share of the landed properties became smaller. 18. It is submitted that the descendants of late Harka Bahadur Chettri are in the possession of equal and even shares of the entire landed properties which was provided to them through a “Banda Patra” dated 01.01.74.” Cross examination by Ld. Legal Aid Counsel Mr. Prabhat Rai for the Plaintiff. “………………………….. It is true the family partition took place in the year 1974 and I have also signed in the partition deed. During the partition, the Plaintiff got paddy field named Taakibotey of Lungchuk and dry field at Salangdang in his share. ………………… The paddy field named Taakibotey of Lungchuk was sold by Tula Ram Chettri(Plaintiff). The land from where compensation of Rs.27,000/- was received was the share of Ghana Shyam Chettri(defendant No.2). It is not a fact that Harka Bdr. Chettri during his lifetime wanted to make fresh partition deed by canceling the family partition deed of 1974. ………………………” Hari Shankar Sharma, D.W.7 “3. On 01.01.1974, I along with other co-villagers were called by Late Harka Bahadur Chettri at his residence at Sombaria, West Sikkim and we were informed by him that he intends to execute a partition of his entire landed properties between his family members. The plaintiff was also present on the relevant time. 4. That as per the desire and mutual consent of the plaintiff and the other family members, the entire landed properties owned by late Harka Bahadur Chettri were evenly and equally partitioned between them and after due satisfaction of all the family members one “Banda Patra” dated – 01.01.74 was prepared and was signed by late Harka Bahadur Chettri, the plaintiff and the defendant no. 5. I also signed the said Banda Patra. As per the “Banda Patra” dated 01.01.1974, certain portion of land i.e. “Schedule B” was given in the share of the plaintiff. 5. Exhibit-A is the “Banda Patra” dated 01.01.74 executed between the family members of late Harka Bahadur Chettri bearing my signature marked as Exhibit-A (h). …………………………………………………………………………….. 8. 5. I also signed the said Banda Patra. As per the “Banda Patra” dated 01.01.1974, certain portion of land i.e. “Schedule B” was given in the share of the plaintiff. 5. Exhibit-A is the “Banda Patra” dated 01.01.74 executed between the family members of late Harka Bahadur Chettri bearing my signature marked as Exhibit-A (h). …………………………………………………………………………….. 8. That after the “Banda Patra” dated-01.01.1974, the plaintiff took the possession of his share of land “Schedule-B” and started cultivation on the same, however it was unanimously decided by family members including the plaintiff to continue the registration of the entire landed properties in the name of late Harka Bahadur Chettri since he was the “head and the Karta” of the entire family. …………………………………………………………………………….. 10. That the partition of the landed properties and the liabilities of late Harka Bahadur Chettri was implemented through the “Banda Patra” and “Family agreement” and soon after the possession of particular shares were taken over by the family members as per the guideline of the “Banda Patra”. …………………………………………………………………………….. 12. That during the year 1984, the plaintiff made initiative to sale the plot of land which was given in his share as per “Banda Patra” dated – 01.01.1974 and finally he voluntarily sold his share i.e. the “Schedule B” property to Smt. Dik Maya Gurung. 13. That since the entire plots of land which were partitioned vide “Banda Patra” dated – 01.01.1974 were still in the name of late Harka Bahadur Chettri, therefore late Harka Bahadur was required to put his signature on the sale deed concerning the plots of land mentioned in the “ Schedule-B” of the plaint. …………………………………………………………………………….. 16. That the plaintiff was provided an equal and even share with respect to the other co-sharer of the joint family, but it was the plaintiff who sold his own share of land i.e. (schedule-B) to one Dik Maya Gurung, wife of Shri Bom Bahadur Gurung and consequently his share of the landed properties became smaller. 17. That the descendants of late Harka Bahadur Chettri are in the possession of equal and even shares of the entire landed properties which was provided to them through a “Banda Patra” dated 01.01.74.” Cross examination by Ld. Legal Aid Counsel Mr. Prabhat Rai for the Plaintiff. It is true I was present when the family partition deed was executed in the year 1974. Legal Aid Counsel Mr. Prabhat Rai for the Plaintiff. It is true I was present when the family partition deed was executed in the year 1974. I know Plaintiff Tula Ram Chettri, he is the son born from the first wife of Harka Bdr. Chettri. Tula Ram got paddy field in his share during the partition. If I correctly remember he also got dry field where he has constructed his house. During the partition Tula Ram had already separated and was living separately with his family. …………….. I heard that Plaintiff Tula Ram sold away his share of land i.e. paddy field to one Dik Maya Gurung. …………………” (ix) On a careful examination of the evidence led on both the sides, the preponderance of probability lie heavily in favour of the Respondents and, as can be made out, undeniably it is an admitted case of the Appellant that all the members of the family had taken over possession of their respective shares in terms of the ‘Banda Patra’ dated 01-01-1974 and, have been possessing and enjoying those even as on today. It stands established that the Appellant was living with the father in the house which was located in his share of the land and that the Schedule ‘B’ land which was sold to Dik Maya Gurung was a portion out of his own share. (x) A curious aspect noticed in this case is that the purchaser, Dik Maya Gurung, was neither arrayed as a Defendant nor examined as a witness. She would have been the best person to have disclosed as regards the land transaction and as such her appearance in the witness box as an Appellant’s witness was vital. In my view, withholding of such witness would attract an adverse inference against the Appellant. (xi) In such view of the matter, I find it reasonable to hold that the partition affected by the “Banda Patra” dated 01-01-1974 was given effect to immediately on the very day of its execution and the parties assumed possession of their respective shares thereafter. The sale transaction in respect of Schedule ‘B’ land was entered into with the purchaser, Dik Maya Gurung, at the behest of the Appellant and, the father Late Harka Bahadur Chettri had only lent his signature as the entire property continued to remain recorded in his name as decided by all during the partition of 01-01-1974. The sale transaction in respect of Schedule ‘B’ land was entered into with the purchaser, Dik Maya Gurung, at the behest of the Appellant and, the father Late Harka Bahadur Chettri had only lent his signature as the entire property continued to remain recorded in his name as decided by all during the partition of 01-01-1974. (xii) The Appellant has failed to prove the existence of a Hindu Undivided Family constituted by him and the Respondents and, that it was his father Harka Bahadur Chettri who had entered into the sale transaction with Dik Maya Gurung vide sale deed, Exhibit 1, as the ‘karta’. Exhibit 1 does not indicate that Harka Bahadur Chettri was the ‘karta’ of the family as no such entry is found recorded therein. (xiii) As regards the compensation of Rs.27,000/- against the land affected by the PMGSY road, it stands established that it fell in the share of Respondent No.2 as would be evident from the evidence of the Respondent No.1 as D.W.1, reproduced above and reiterated by him in his cross-examination extract of which also been reproduced. There is complete corroboration on this in the evidence of Respondent No.2 as D.W.2 and the Respondents No.3, 4 and 5 as D.Ws 3, 4 and 5. 9. In the result, the Appeal is allowed in part. 10. No order as to costs. 11(i). A copy of this judgment and the original case records be transmitted forthwith to the Court of the Learned District Judge, West Sikkim at Gyalshing, for compliance, as the suit properties are situated in West Sikkim and the parties to the suit also ordinarily reside in that District. (ii) This has been necessitated in view of the creation of West Judicial District bifurcating South and West District at Namchi, South Sikkim, vide Notification No.14/Home/2012 dated 15-02-2012. (iii) A copy of the judgment be also sent to the Court of the Learned District Judge, South Sikkim at Namchi, for its record.