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3. Before embarking on the merits of the matter, a brief narration of the facts is imperative. The Plaintiffs claimed to be owners of „Schedule A‟ property being land bearing plot No.534, Khatiyan No.593, measuring .1300 hectares, under Hee Kiran Limboo vs. Kussang Limboo and Another Block, Gyalshing, West Sikkim with „Schedule B‟ property, a house measuring 18 feet x 12 feet, standing on a portion of the said land. Consequent upon the demise of the Plaintiffs‟ parents in 2006, and on Plaintiff No.1 attaining the age of majority on 25.07.2014, the suit property was mutated in his name. The Plaintiffs sought eviction of the Defendant from the suit property alleging that his possession over it was illegal and that the property was required for their own use. That, a previous Suit being Title Suit No.07 of 2012 filed by the Plaintiffs against the Defendant on a different cause of action before the learned trial Court had been withdrawn and the instant Suit filed. The Plaintiffs sought the following reliefs;

6. Whether the defendant is entitled to retain the suit property as mentioned in the counter claim as his share in the properties left behind by Late Buddhi Raj Limboo?

7. Whether the defendant is entitled to have the suit property as mentioned in the counter claim to be mutated in his name after making necessary correction in the records of right?

8. Relief(s).'

8. The Plaintiff No.1 (PW1) filed his Evidence-on- Affidavit and that of his three witnesses being Buddhi Lall Limboo (PW2), Dilip Kumar Rai (PW3) and Padam Lall Limboo (PW4). The Defendant filed his Evidence-on-Affidavit and that of his witnesses Sudesh Kumar Subba (DW1) and Ran Bahadur Subba (DW2).

"......It is true that according to the document dated 20.12.2008 my uncles, Shri Buddhi Lall Limboo (Khamdhak) and Dhan Raj Limboo had acknowledged that the defendant was their youngest brother through the second wife of their father and accordingly the defendant was given the land along with the house mentioned in Schedule-B of the plaint. It is true that the said document also reveals that the defendant was to pay Rs.60,000/- to my uncle, Shri Buddhi Lall Limboo as compensation of the cost of building the wooden structure standing on the said land. It is true that the execution of document dated 20.12.2008 (supra) by my uncle Shri, Buddhi Lall Limboo had been told to me by him before I filed Title Suit No. 7/2012 (supra). It is true that he had even told me then that he had given the suit property mentioned in Schedule-B of the present plaint to the defendant under the said document. ............... It is true that our ancestral properties has not been mutated in the respective names of my uncles, Shri Buddhi Lall Limboo and Shri Dhan Raj Limboo. ............... It is true that the suit properties involved in this suit and Title Suit No.7/2012 (supra) are the same i.e. Schedule-B property. It is true that I applied for mutation of plot no.534 immediately after withdrawing Title Suit No.7/2012. It is true that while Kiran Limboo vs. Kussang Limboo and Another applying for mutation I did not intimate to the concerned office that the defendant also claimed to be one of the sons of my grandfather and was also claiming a share in the ancestral properties including plot no.534. It is true that the intended mutation of plot no.534 was not brought to the notice of the defendant by the concerned office. It is true that because of this the defendant did not get an opportunity to object to such mutation of plot no.534 in my name. It is true that the defendant was brought to our house by my grandfather Late Buddha Raj Limboo along with him when he returned from Nepal after the residing there (sic) a number of years. It is true that my grandfather Late Buddha Raj Limboo had then told all of us including my uncles that the defendant was his son born through his second wife. ............... It is true that after the defendant received the suit property mentioned in Schedule-B of my plaint in the year 2008, he started living there along with his mother and my grandfather Late Buddha Raj Limboo. My grandfather Late Buddha Raj Gurung (sic) expired in and around the year 2013. It is true that till the time of his death my grandfather was living with the defendant in the house mentioned in Schedule-B of my plaint. It is true that his funeral was also conducted from the house of the defendant. It is true that neither me nor my uncles or any of our relatives objected to the fact that the funeral of my grandfather was conducted from the house of the defendant on the ground that the defendant was not related to us or my grandfather. It is not a fact that we did not object to this because the defendant was also the son of my grandfather.

18. Plaintiffs' witness No.4 Padam Lall Limboo is the third son of late Thabgo Limboo and the grand uncle of the Plaintiffs hence he claimed to be conversant with the facts and circumstances of the case. Exhibit 11 according to him, was scribed by one Jas Bahadur Subba, a co-villager. Pausing here for a moment it is relevant to notice that PW2 Buddhi Lall Limboo is unaware of the scribe and although PW4 names the scribe, he was not produced before the Court as a witness. The witness is unaware as to whether the scheduled property was acquired by his father or was ancestral, suffice it to say that no document of the Plaintiffs sheds light on this aspect including Kiran Limboo vs. Kussang Limboo and Another Exhibit 11 or Exhibit 12 Khatiyan Parcha in the name of Thabgo Limboo. According to him, their respective shares of the partitioned property was mutated in their names sometime in the year 2013-14. However, if we are to revert to the evidence of Plaintiff No.1 he has stated categorically that the ancestral properties have not been mutated in the respective names of his uncles Buddhi Lall Limboo and Dhan Raj Limboo. PW4 shed no light on Exhibit A and Exhibit B.