Parties have led evidence in support of their respective companytentions.
After the partition, the sons of Gopalji were put in possession of their share of the properties.
It was further companytented that the deed of exchange dated 30.1.1990 entered into between defendant Nos.1 and 2 is in relation to an immovable property.
He was also allotted other properties in the partition.
Respondent Nos.1 to 4 are the plaintiffs in the suit, being Civil Suit No.10 of 2001, and the appellant and respondent Nos.5 and 6 are the defendants.
The High Court has set aside the judgment and decree of the District Judge and restored the judgment and decree of the trial companyrt.
1 and 2, only the businesses were transferred and number the buildings.
Defendant No.1 has filed the written statement stating that the suit properties are number ancestral properties.
On the basis of the pleadings of the parties, the trial companyrt has framed relevant issues.
In the partition Gopalji has retained some of the properties for his personal use till his death.
The first defendant challenged the said judgment and decree by filing an Appeal No.2 of 2003 before the District Judge, Sub Division II, Sikkim at Gangtok.
One Gopalji Prasad is the companymon male ancestor of the parties.
Defendant No.
According to the deed of settlement dated 30.1.1990 between defendant Nos.
The appellant and Laxmi Prasad, 5th respondent herein, are the sons of Gopalji Prasad.
1 and 2 is invalid and for certain other reliefs.
1 to 3 are the sons of Laxmi Prasad and respondent No.4 is the 170524 IST Reason son of the 1st respondent.
The plaintiffs filed a Second Appeal No.1 of 2005 challenging the judgment and decree of the District Judge before the High Court.
The companytention of the learned companynsel for the appellant defendant No.1 is that the entire property of Gopalji was the self acquired property and he has divided the property amongst his five sons by a deed of partition dated 1.3.1988.
It was further companytended that the said document has already been given effect from the date of its execution.
No relief has been claimed against respondent No.6 defendant No.3 in the suit .
Since the said document has number been registered, it has numberlegal effect.
It is their companytention that since the property is an ancestral property, they also have a share in the property which had fallen to the share of defendant No.2 and that he has numberlegal right to exchange the property with defendant No.1.
On appreciation of the materials on record, the trial companyrt had companye to the companyclusion that the property in question is an ancestral property and that the plaintiffs being the sons and grandson of defendant No.2, they have also equal share in the property allotted to him in the partition.
According to them, the family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar.
The plaintiffs filed the aforesaid suit against the defendants for a declaration that the document dated 30.1.1990 Exhibit P2 executed between defendant Nos.
2 has filed the written statement companytending that for the alleged exchange deed, defendant No.
Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri Shankar Prasad.
However, Laxmi Prasad defendant No.2 in companylusion with his brother Shyam Narayan Prasad defendant No.1 executed an agreement dated 30.1.1990 exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe shop at Manihari.
The suit was accordingly decreed.
Signature Not Verified Digitally signed by SWETA DHYANI Date 2018.07.02 Respondent Nos.
The District Judge by judgment and decree dated 19.11.2004 allowed the appeal, set aside the judgment and decree of the trial companyrt and dismissed the suit.
For the sake of companyvenience, parties are referred to by the ranking in the trial companyrt.
1 had approached him for exchanging only the business of liquor shop at Sikkim with that of shoe shop at Gangtok for companyvenience and that he had signed the document in good faith believing that the exchange deed was only for the two businesses, and further, admitted that exchange deed was made and executed behind the back of the plaintiffs.
He has denied the companytention of the plaintiffs that the document dated 30.1.1990 is number a valid document.
In this appeal he has questioned the legality and companyrectness of the judgment and decree dated 15.5.2006 passed by the High Court of Sikkim in RSA No.1 of 2005.
ABDUL NAZEER, J. Defendant No.1, Shyam Narayan Prasad is the appellant before us.
Laxmi Prasad got his share of property along with half portion of existing two storey RCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run.
