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10. Emphasizing that Exhibit 11, the alleged Partition Deed of 1988, allegedly executed by late Thabgo Limboo, grandfather of the Defendant Kiran Limboo, Durga Singh Limboo, Dhan Raj Limboo and Buddhi Lall Limboo and great grandfather of the Plaintiffs, was a document fabricated for the purposes of this case, learned Senior Counsel for the Defendant canvassed that this is evident from the fact that no physical partition took place thereafter and no steps were taken towards registration of their alleged respective shares. This was the position even when the Defendant and his father returned to Sikkim in 2004. Assuming that Exhibit 11 was indeed executed no reasons for exclusion of Buddhi Raj Limboo was revealed therein although the Plaintiff No.1 in his evidence did not deny Kiran Limboo vs. Kussang Limboo and Another that Buddhi Raj Limboo was the son of Thabgo Limboo. In fact he admitted that the Defendant was also one of the sons of Buddhi Raj Limboo but from his second wife, thereby admitting his lineage. Vide Exhibit A and Exhibit B Buddhi Lall Limboo and Dhan Raj Limboo have unequivocally accepted that the Defendant was their half brother, being the son of their father through his second wife. The Plaintiffs also failed to establish as to whether the property was the self acquired property of Thabgo Limboo or whether it was ancestral as no document to establish transfer of the property to Thabgo Limboo was furnished by the Plaintiffs. That, in fact mere recording of name in Khatiyan does not transfer title. To augment this submission strength was drawn from Karma Doma Gyatso alias Babila Kazi v. Mrs. Kesang Choden & Ors.1 and Bishnu Kumar Rai v. Minor Mahendra Bir Lama and Ors.2 as also Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others 3. That, while decreeing the Suit of the Plaintiffs the learned trial Court contemplated on the weaknesses of the Defendant‟s case, when in fact the relief ought to have been granted on the strength of the Plaintiffs‟ case, which was non-existent. That, in fact Buddhi Lall Limboo PW2 is the architect of this case who however had in the earlier Title Suit No.07 of 2012 in his Written Statement (Exhibit C) admitted the execution of documents viz. Exhibit A and Exhibit B as also in cross-examination and is therefore estopped from denying their existence and transfer of the suit property to the Defendant. On this count, reliance was placed on AIR 2009 Sikkim 6 AIR 2005 Sikkim 33 (2014) 2 SCC 269 Kiran Limboo vs. Kussang Limboo and Another B.L. Sreedhar and Others v. K.M. Munireddy (Dead) and Others 4. Reliance was also placed on Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr.5 in which it was held that estoppel cannot be elected, in other words, a party cannot approbate and reprobate. That, in the Suit (supra) the Plaintiffs had impleaded the father of the Defendant, Buddhi Raj Limboo, his uncles Buddhi Lall Limboo, Dhan Raj Limboo and the Defendant (Kiran Limboo) as Defendants, and sought a declaration that the property was ancestral for the Plaintiffs and Defendants Buddhi Lall Limboo and Dhan Raj Limboo but not for the Defendant, whose possession was alleged to be illegal and therefore he was liable to be evicted. That, for reasons best known to the Plaintiffs, they withdrew the Suit (Title Suit No.07 of 2012) which was allowed vide order dated 19.06.2014, till which time the suit property continued to remain recorded in the name of Thabgo Limboo. That, plot No.534 came to be registered in the name of the Plaintiff No.1 only in the year 2014 after the withdrawal of the Title Suit No.07 of 2012. In the surreptitious race to register the Suit Property in the Plaintiff No.1‟s name which was accomplished on 21.08.2014, in order to outwit and evict the Defendant, the name of Sukman Limboo the brother of Plaintiff No.1 was excluded in the Khatiyan Parcha, although he is also the son of Durga Singh Limboo and thereby an equal shareholder. That although the Plaintiffs‟ witnesses seek to deny the parentage of the Defendant by pointing to cancellation of his COI, however they concealed the fact that the cancellation was (2003) 2 SCC 355 AIR 2010 SC 2077 Kiran Limboo vs. Kussang Limboo and Another only on account of the School Certificate furnished by the Defendant of a School in which he had not studied. There is no finding by the concerned authority that the Defendant is not the son of Buddhi Raj Limboo. He is thus entitled to apply for and obtain a COI on the basis of his parentage. The finding of the learned trial Court that he cannot hold properties herein is therefore an erroneous finding. That, the Defendant lived with his father Buddhi Raj Limboo on the suit property till his demise in 2013 without questions or objections from any quarter which came to be raised only after his father‟s death despite Exhibit A and Exhibit B having been executed prior to his death. That, Exhibit A and Exhibit B are not required to be registered in view of the fact that the property was still standing in the name of Thabgo Limboo. Hence, the impugned Judgment and Decree be set aside and reliefs prayed for in the Counter Claim be granted.

11. Resisting the arguments of the Defendant, learned Senior Counsel for the Plaintiffs contended that late Thabgo Limboo the original holder of the disputed property vide Exhibit 11, "Banda Patra," dated 12.03.1988, partitioned his landed properties amongst his sons and grandsons. The properties described in „Schedule A‟ fell in the share of late Durga Singh Limboo, father of the Plaintiffs, which the Plaintiffs inherited on his demise and are jointly and absolutely possessing. That, as the Plaintiff No.1 was the elder of the two brothers, the Suit Property was recorded in his name on his attaining majority, as such neither Buddhi Lall Limboo nor Dhan Raj Limboo could have alienated it to the Defendant on the Plaintiffs behalf either Kiran Limboo vs. Kussang Limboo and Another through Exhibit A, "Bandabast Patra" dated 20.12.2008 or Exhibit B, "Bandabast Patra" dated 14.11.2010. Besides, both documents are unregistered which is a requisite when transfer of immovable properties is intended. The Defendant has failed to establish by documentary evidence that he is the legitimate son of late Buddhi Raj Limboo or that the Suit Property was left to him by his father, who admittedly was neither the owner of the Suit Property nor did he lay his claim to it during his lifetime. That, the COI obtained by him was cancelled on account of him furnishing a false document claiming that he had studied in the Government Senior Secondary School, Hee Yangthang, West Sikkim, and the cancellation remaining unchallenged has thereby attained finality. Had he been the son of late Buddhi Raj Limboo he could have easily obtained the COI through his parentage but no such effort was made during his father‟s lifetime. That, the property being the self acquired property of Thabgo Limboo no share was allotted for late Buddhi Raj Limboo who was unheard of for about forty years. Padam Lall Limboo the only surviving son of late Thabgo Limboo was neither made a party nor were the legal heirs of late Bhim Lall Limboo, the second son of late Thabgo Limboo, made parties, without their impleadment he cannot stake claim to the suit property. That, the evidence on record also fails to establish the claims of the Defendant, hence the Appeal be dismissed.

19. The Defendant, to substantiate his claims relied on Exhibit A, "Bandabast Patra" dated 20.12.2008 and Exhibit B, "Bandabast Patra" dated 14.11.2010. He has denied having submitted a letter to the Principal of the Government Senior Secondary School, Hee Yangthang, West Sikkim being Exhibit 4/B. Relevantly, it may be noted that although the Plaintiff No.1 furnished Exhibit 4/B as a copy of the said letter written by the Defendant to the Principal, Government Senior Secondary School, Hee Yangthang, West Sikkim but the document remained unproved. His deposition was that Exhibit 11 is not binding upon him being a fabricated document besides which his father was not given a share. His possession over the suit property consequent upon the execution of Exhibit A and Exhibit B by PW2 and Dhan Raj Limboo has not been decimated in cross-examination. The Defendant‟s witness Sudesh Kumar Subba (DW2) served as the Panchayat Secretary of 22 Hee Gram Panchayat from the year 2007 to 2012 and although an effort was made to demolish this aspect, the fact was supported by the evidence of Plaintiff No.1 himself, according to whom Kiran Limboo vs. Kussang Limboo and Another Sudesh Kumar Subba was the Panchayat Secretary during 2008 and 2010. DW2 testified that PW2, Dhan Raj Subba and the Defendant had approached him as they had agreed to draw up an agreement amongst themselves. Accordingly on 20.12.2008 he prepared Exhibit A. He failed to recall the contents of Exhibit A but the fact that he prepared both the documents Exhibit A and Exhibit B remained uncontroverted. According to him, he had then read over the contents of Exhibit A and Exhibit B to both PW2 Buddhi Lall Subba and Dhan Raj Subba on which they signed. DW3 Ran Bahadur Subba witness to the execution of Exhibit B while substantiating the foregoing evidence, identified it as the document prepared by Sudesh Kumar Subba DW2, the contents of which were read over to the three brothers being Buddhi Lall Limboo, Dhan Raj Limboo and the Defendant, whereupon all of them affixed their signatures in his presence and of their own free will and consent. He denied the suggestion that the signatures of Dhan Raj Limboo and Buddhi Lall Limboo which were affixed in his presence were forged signatures. He shed no light on Exhibit 11. He was unaware of the possession of a COI by the Defendant‟s father but asserted that the Defendant‟s COI was cancelled by the authority. No grounds for such cancellation were detailed.

(emphasis supplied) The circumstances pertaining to Exhibit A and Exhibit B are similar to the circumstances discussed in the ratio supra and thereby sets to rest the legal position of Exhibit A and Exhibit B. The documents are found to be genuine and executed by PW2 and Dhan Raj Subba.

23. So far as the question of cancellation of the COI of the Defendant is concerned, the reason for cancellation as given in Exhibit 3 is "False Birth Record." The order is indeed cryptic. The cancellation order does not deny the Defendant‟s paternity. The evidence of the Plaintiff No.1, no less, establishes that Buddhi Raj Limboo had on his arrival to Sikkim brought along with him his second wife and the Defendant and informed his Kiran Limboo vs. Kussang Limboo and Another family that the Defendant was his son from his second marriage. This has not been demolished under cross-examination. DW2 Sudesh Kumar Subba the Panchayat Secretary serving the Government would have to be given his due considering that on oath he has deposed the fact of execution of Exhibit A and Exhibit B supported by the evidence of DW3. Admittedly from 2004 Buddhi Raj Limboo came to Sikkim and continued to live with the Defendant till his death in 2013. It is rather incongruous that Exhibit 11 was never mentioned to Buddhi Raj Limboo by his three sons till his demise and it was only in 2014, the property of Plaintiff No.1 came to be recorded hurriedly in his name on 21.08.2014 (Exhibit 1) after the first Title Suit was withdrawn. The registration was evidently carried out with a view to strengthen the Plaintiffs‟ case. The funeral and death rites of deceased Buddhi Raj Limboo was completed by the Defendant without any objection from his uncles Buddhi Lall Limboo and Dhan Raj Limboo indicating an acceptance of the Defendant as the son of Buddhi Raj Limboo. In any event, at no stage when Buddhi Raj Limboo was alive did Buddhi Lall Limboo and Dhan Raj Limboo or for that matter the Plaintiffs ever question the identity or lineage of the Defendant. The entire decision of the learned trial Court pivots around the failure of the Defendant to establish his possession of any Certificate of Identification. The learned trial Court held that the Defendant failed to produce any other document to show how he would be entitled to hold landed property in the State of Sikkim and that his witnesses and the witnesses of the Plaintiffs have stated that they have no idea where he was born and brought up. In this context, it is Kiran Limboo vs. Kussang Limboo and Another alarming that the learned trial Court has completely disregarded the evidence of the Plaintiff No.1 himself to the effect that Buddhi Raj Limboo had told them that the Defendant was his son. The learned trial Court also failed to consider the admission that the deceased Buddhi Raj Limboo continued to live with the Defendant with no questions asked. The learned trial Court has not considered the utterly suspicious circumstances of Exhibit 11, its belated entry in the matter and absence of attesting witnesses or its scribe. The contents of Exhibit A and Exhibit B reveal acceptance of the Defendant as the younger brother of Buddhi Lall Limboo and Dhan Raj Limboo by themselves. The contents of the documents have to be read and interpreted in its entirety and not piecemeal depending on its suitability to the Plaintiffs and PW2. The Defendant, according to the learned trial Court, did not challenge the records of the suit property in the name of the Plaintiff No.1, however it would be worthwhile noticing that the Plaintiff No.1 himself has admitted that the Defendant was ignorant of the transfer and had no opportunity to object to it. It may also relevantly be noted that the sister of the Plaintiffs Binita Limboo was being taken care of by the Defendant after the death of their father, while Bhim Lall Limboo took the Plaintiff No.1 under his care and Dhan Raj Limboo took the Plaintiffs' other sister Manita and the Plaintiff No.2. Had the Defendant not been the uncle of Binita Limboo and a blood relation the responsibility would neither have been shared nor befallen on him. The learned trial Court was rather concerned about the whereabouts of the Defendant prior to 2004 although the Plaintiff No.1 has admitted that Buddhi Raj Limboo was out Kiran Limboo vs. Kussang Limboo and Another of the State and returned home in 2004 along with the Defendant and his mother Jasmaya Limboo. According to the learned trial Court, the Defendant did not offer to name the School or Schools attended by him. In my considered opinion, this is not even relevant to the Issues at hand besides which in cross-examination the Plaintiffs did not seek to extract any such answers from him. So far as his Certificate of Identification is concerned, unless the entire facts with regard to furnishing false records are placed before any trial Court and what the false records contained and comprised of, the Courts cannot jump to assumptions and conclusions. The property was never transferred from the name of late Thabgo Limboo to his sons but suspiciously only plot No.534 came to be recorded in the name of the Plaintiff No.1 which therefore reeks of foul play. The argument of learned Senior Counsel for the Plaintiffs that the order of the authority cancelling the COI has attained finality holds no water since the paternity of the Defendant and rights accruing consequently cannot be denied.