THE HIGH COURT OF SIKKIM: GANGTOK

(Civil Appellate Jurisdiction) SKHC01-000115-2024

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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

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R.S.A. No. 02 of 2024

Shri. Mani Kumar Gurung,

Aged about 74 years,

S/o Late Chandra Bahadur Gurung,

R/o Near Co-operative Upper Syari,

P.O. Tadong, P.S. Sadar Gangtok,

District Gangtok-737101.

….. Appellant

Versus

1. Shri Govind Khati,

S/o Late Krishna Bahadur Khati,

Aged about 66 years,

R/o near Co-operative Upper Syari,

P.O. Tadong, P.S. Sadar, Gangtok,

District Gangtok-737101.

2. The District Collector Gangtok,

Office of the District Collectorate,

Gangtok, East Sikkim-737101.

3. Additional District Magistrate,

Office of the District Collectorate,

Gangtok, East Sikkim-737101.

4. Ms. Leela Chettri,

Head Surveyor,

Office of the District Collectorate,

Gangtok, East Sikkim-737101.

5. Gangtok Municipal Corporation,

Government of Sikkim,

Deorali, Gangtok, Sikkim-737101.

….. Respondents

Second Appeal under Section 100 of the Code of Civil Procedure,

1908.

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Mani Kumar Gurung vs. Govind Khati & Ors.

Appearance:

Mr. B. Sharma, Senior Advocate with Mr. Sajal Sharma and

Ms. Shreya Sharma, Advocates for the Appellant.

Mr. Karma Thinlay, Senior Advocate with Mr. Bhusan Nepal

and Mr. Zamyang Norbu Bhutia, Advocates for Respondent

No.1.

Mr. S. K. Chettri, Government Advocate for Respondent Nos. 2

to 4.

Mr. Lahang Limboo, Advocate for Respondent No.5.

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Date of Hearing : 07.08.2026

Date of Judgment : 07.08.2026

Date on which uploaded : 08.08.2026

J U D G M E N T (O R A L)

Bhaskar Raj Pradhan, J.

1. An interesting issue arises for consideration before this Court

in this matter. This is a Regular Second Appeal against the judgment

authored by the learned Appellate Court. The learned Appellate

Court did not interfere with the judgment rendered by the learned

First Court. Therefore, two concurrent judgments are sought to be

assailed before this Court in Regular Second Appeal (RSA). The only

question of law framed by this Court on 25.03. 2025 as the

substantial question of law is -

“Whether the Learned Trial Court and the Learned

First Appellate Court erred in dismissing the Suit of the

Appellant under Order VII Rule 11(d) of the Code of Civil

Procedure, 1908, on grounds that the Appellant had

acquired the land from Lendup Lepcha,(sic) resulting in

the Suit being hit by the Revenue Order No.1 of 1917,

when Lendup Lepcha,(sic) the original vendor is not a

party to the Suit nor was this question the subject

matter of the suit between the parties?”

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2. The two opinions rendered by the learned First Court and

the learned Appellate Court were on an application moved by

the State defendant nos. 2, 3 and 4 invoking the provision of

Order VII Rule 11(d) of the Code of Civil Procedure, 1908

(CPC). In the application it was asserted that the plaintiff does

not have any locus standi to institute and seek the prayers in

the present suit before the Court as he is not the legitimate

owner and holder of the Record of Rights of the suit property.

3. It was further asserted that the Record of Rights stands

recorded in the name of Shri Ledup Lepcha and as per Revenue

Order No.1 the plaintiff could not have purchased and owned

the land of a Bhutia or a Lepcha by making an illegal

agreement. The learned First Court as well as the learned

Appellate Court agreed to this contention and therefore the

appellant has preferred the present Regular Second Appeal.

4. Heard the learned Senior Counsel for the appellan t and

the defendant no.1 i.e. respondent no.1 as well as the learned

State Counsel for the other respondents. Mr. Lahang Limboo,

learned counsel appearing for the respondent no.5 submits

that he has no submissions to make.

5. Rejection of the plaint under Order VII Rule 11(d) of the

Code of Civil Procedure, 1908 (CPC) completely extinguishes

all rights asserted and claimed by the plaintiff against the

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defendants. Therefore, it is settled law that it is only in those

cases where the suit appears from the statement in the plaint

to be barred by any law, can such a power be exercised by the

Court. The Courts exercising power under Order VII Rule 11 of

the CPC should exercise it cautiously lest a surviving cause of

action may be nipped in the bud in its nascent stage. As held

by the Supreme Court in Hardesh Ores (P.) Ltd . v. Hede &

Company

1

quoted by the learned Appellate Court it is not

permissible to cull out a sentence or a passage, and to read it

in isolation. It is the substance, and not merely the form which

has to be looked into. The plaint has to be construed as it

stands, without addition or subtraction of words. If the

allegations in the plaint prima facie shows a cause of action,

the Court cannot embark upon an enquiry whether the

allegations are true in fact. If on a meaningful reading of the

plaint, it is found that the suit is manifestly vexatious and

without any merit, and does not disclose a right to sue, the

court would be justified in exercising the power under Order

VII Rule 11 CPC. The provision of order VII Rule 11 CPC is

mandatory in nature. It states that the plaint shall be rejected

if any of the grounds specified in clause (a) to (e) are made

out. If the Court finds that the plaint does not disclose a cause

1

(2007) 5 SCC 614

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Mani Kumar Gurung vs. Govind Khati & Ors.

of action, or that the suit is barred by any law, the Court has

no option, but to reject the plaint. It is true that the whole

purpose of conferment of powers under this provision is to

ensure that a litigation which is “meaningless” and “bound to

prove abortive”, should not be permitted to waste judicial time

of the court.

6. Therefore, the plaint must be read as a whole and viewed

from what is pleaded in its entirety. If in a holistic and

purposeful reading of the plaint it appears that it is barred by

any law, the power under Order VII Rule 11(d) CPC should be

exercised otherwise the suit should be allowed to be proceeded

and determined after a trial. It was therefore, necessary for

the learned Courts to examine the plaint in a holistic manner.

7. On a reading of the plaint it can be seen that it is

directed against the defendant no.1/respondent no.1 as well as

the State-respondents and its officers. In the plaint, the

plaintiff pleads, that he had purchased a portion of plot no.25

being plot no.11 vide a sale deed (Annexure-P1) from one

Ledup Lepcha measuring an area 70’ x 40’ situated at Syari,

Gangtok. The plaintiff has also relied upon the parcha khatiyan

(Annexure-P2) and a copy of the purported sale deed

(Annexure-P1) dated 26.02.1980. The plaint also describes

Schedule A property and Schedule B property. Schedule A

property seems to be the property purportedly purchased by

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the plaintiff from Ledup Lepcha. Schedule B property seems to

be the property allegedly encroached by the defendant no.1.

8. It is the plaintiff’s case that since the date of purchase of

the immovable property from Ledup Lepcha i.e. plot no.25

being plot no.11 measuring area 70’x40’ situated at Block -

Syari, Gangtok District, East Sikkim, the plaintiff has been

using, enjoying, occupying, possessing the suit land peacefully

and uninterruptedly. This plot of land is described in Schedule

A to the plaint.

9. It is alleged that in the month of January , 2022, the

defendant no.1, without having any right, title and interest in

and over any part and portion of the land purchased by the

plaintiff from Ledup Lepcha had started construction after

dismantling his old building and had encroached the land of the

plaintiff measuring about 6’ x 40’ approximately. This plot of

land is described in Schedule B to the plaint.

10. The plaint also makes various allegations against the

State respondents for their alleged inaction and failures and

seeks relief against them as well.

11. From the averments in the plaint it is quite clear that as

per the plaintiff the defendant no.1 was an en croacher who

encroached upon the Schedule B land which was part of the

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Schedule A land purportedly purchased by the plaintiff from

Ledup Lepcha.

12. It is also true as noted by the learned First Court and the

learned Appellate Court that Ledup Lepcha was not a party to

these proceedings.

13. So the moot question which ought to have been

examined by the learned Courts was-whether from the

averments in the plaint the suit was actually barred by law and

resultantly the entire suit had to be thrown out or in other

words did any cause of action survive against the defendants

or anyone of them?.

14. It is true that in paragraph 2 of the plaint the plaintiff has

asserted that he had purchased a portion of plot no. 25 being

plot no.11 vide a sale deed from Ledup Lepcha i.e the Schedule

A property. It is also true that they have relied upon purported

unregistered sale deed (Annexure-P1) dated 26.09.1980.

Equally true is the fact that the purported parcha khatiyan

relied upon by the plaintiff reflects that the Schedule A land

was still recorded in the name of Ledup Lepcha.

15. A perusal of this purported sale deed dated 26.09.1980

also reflects that Ledup Lepcha had agreed to sell the suit land

to the plaintiff, a Nepali Sikkimese, irrespective of Sikkim

Revenue Order No.1 of 1917. It is also seen that the purported

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Mani Kumar Gurung vs. Govind Khati & Ors.

sale deed records that the consideration of Rs.2500/- had also

been recorded as having been made by the plaintiff to Ledup

Lepcha.

16. From the averments in the plaint it is clear that after the

purported payment of consideration amount by the plaintiff as

reflected in the purported sale deed, the plaintiff has been

purportedly in peaceful and uninterrupted possession of the

suit land since 1980. There is also no averments in the plaint

which reflects that the defendant no.1 had any better right on

the encroached portion i.e. the Schedule B land as against the

plaintiff. In such a situation it was important for the learned

Courts to examine the prayers prayed for in the suit. The

prayers are as under:-

“a) A decree declaring that the

Schedule B property is the property

of the Plaintiff.

b) A decree declaring that the

Defendant No.1 has encroached

upon the Schedule B property of

the Plaintiff and the same is liable

to be demolished and consequential

relief of possession be granted in

the favour of Plaintiff;

c) A decree declaring that the

Defendant No.1 has no right, title

and interest over the suit property

and consequently delivering and

confirming the khas possession of

the suit land measuring area 6‟ x

40‟ which has been encroached by

Defendant No.1.

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Mani Kumar Gurung vs. Govind Khati & Ors.

d) A decree injuncting the Defendant

No.1 from carrying on the

construction work upon the suit

land.

e) A decree of dismantling the

structure so constructed upon the

Schedule B land for the delivery of

Khas possession to the Plaintiff.

f) A decree declaring that the

Defendant No.1 has no right, title

and interest in and over the suit

land;

g) A decree declaring that the

inspection and the surveys of the

suit land have not been done as per

law.

h) A decree declaring that the

inspection and the survey of the

suit land and/or suit plot being

No.11 made by the Revenue

Surveyor of Gangtok Block is bad,

illegal;

i) A decree declaring that the report

prepared by Defendant No.4 is bad,

illegal and the same is liable to be

set aside.

j) A decree for perpetual injunction

restraining the defendant No.1, his

men, agent and associates f rom

entering/trespassing into the suit

land and also from doing any sort

of obstruction, interference and

annoyance to the quiet and

peaceful use, enjoyment and

possession of the plaintiff with

regard to the suit land as

delineated in the site plan annexed

with the plaint;

k) To appoint a Commissioner to verify

and demarcate the entire Schedule

A property;

l) Compensation for harassment and

immense mental tension to the

Plaintiff who is a senior citizen.

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Mani Kumar Gurung vs. Govind Khati & Ors.

m) Cost of suit;

n) Any other relief and/or reliefs to

which the Plaintiff is legally

entitled.”

17. On a perusal of the prayers it is seen that the suit is

confined to Schedule B only allegedly encroached by the

defendant no.1. There is no declaration sought by the plaintiff

with regard to ownership and title of the Schedule A property

measuring 70’x40’ feet being plot no.25 which was purportedly

the subject of the purported sale deed executed between

Ledup Lepcha and the plaintiff.

18. Revenue Order No.1 dated 17

th

May 1917 is what is

commonly known in Sikkim as one of the “old laws” of Sikkim

made during the time when the State was a kingdom and now

protected by Article 371F of the Constitution of India. It

provides that “no Bhutias and Lepchas are to be allowed to

sell, mortgage or sub-let any of their land to any person other

than a Bhutia or a Lepcha without the expressed sanction of

the Darbar or officers empowered by the Darbar in their behalf,

whose order will be obtained by the landlord concerned. If

anyone disobeys he will be severely punished.” By the

Adaptation of Sikkim Laws (No.1) Order, 1975 wherever the

expression “Sikkim Darbar” or “Darbar” occurs in an existing

law then, in the application of that law in relation to the

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Mani Kumar Gurung vs. Govind Khati & Ors.

administration of the State of Sikkim, or, as the case may be,

to any part thereof, unless the context otherwise requires,

there shall be substituted therefor with the expression “State

Government”. For further clarity, the Revenue Order No.1

refers to Order dated 2

nd

January 1897 which also provided

that “no Bhutias and Lepchas are to be allowed to sell or sub-

let any of their lands without the express sanctioned of the

Council. If anyone disobeys this Order, he will be punished

severely”. Although the argument of the State respondent that

the purported sale deed was against Revenue Order No.1, in

view of what is recorded in the purported sale deed, is at the

first brush luring to pronounce upon it however, it would have

been more prudent to exercise restraint in the facts of the case

as prayers “b” to “f” would clearly be maintainable against the

defendant no.1 at this stage without examining the written

statements of the defendants.

19. The learned First Court has reproduced all the prayers in

the plaint in its judgment. However, while examining the

prayers the learned First Court has expressed its mind on the

first prayer only. The learned First Court also examined the

parcha khatiyan of the Schedule A land filed by the plaintiff

and noted that the Schedule A land was still recorded in the

name of Ledup Lepcha and not in the name of the plaintiff. As

such the learned First Court concluded that since the sale of

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Mani Kumar Gurung vs. Govind Khati & Ors.

Schedule A land was barred by Revenue Order No.1 the relief

claimed by the plaintiff deserves to be rejected without

considering whether any cause of action would survive against

the defendants.

20. On appeal the learned Appellate Court’s attention seem to

have been drawn to this situation when it was argued on behalf

of the plaintiff in appeal that the learned First Court rejected

the plaint only on prayer (a) which sought a decree declaring

that the Schedule B property is the property of the plaintiff.

The learned Appellate Court thus recorded a finding that the

plaintiff had sought several prayers i.e. prayer (a) to prayer

(n) at paragraph 22 of the plaint however, “the crux of the

plaintiff‟s case and the relief sought as a whole is that he

should be declared owner of plot no.11 (purchased by the sale

agreement dated 26.02.1980 from L edup Lepcha which has a

total land measuring 70‟x40‟ of which, Schedule „B‟ (6‟x40‟) is

a part.”

21. It appears that both the learned Courts therefore, took a

view that the suit related to a declaration that the entire

property i.e. Schedule A property was the property of the

plaintiff, contrary to what was actually prayed for. The

substantive prayers against the defendant no.1 were all

prayers relating to the alleged encroached portion of Schedule

A property i.e. the Schedule B property only, contrary to what

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Mani Kumar Gurung vs. Govind Khati & Ors.

was perceived by the learned Courts. By doing so, although the

learned Appellate Court had correctly quoted the passage from

Hardesh Ores (supra) it indulged in construing the plaint not

as it stands but by reading into it what was not sought for.

22. The learned Appellate Court also took the view that the

other reliefs sought by the plaintiff such as declaring the

defendant no.1 had no right over Schedule B land or that it has

been encroached and its possession has to be delivered to him

has its roots in prayer “a”. The learned Appellate Court also

took the view that the rest of the prayers are also

consequential prayers to the main prayer “a” and therefore, if

prayer “a” could not survive the rest of the prayers would not

as well. It was opined that if prayer “a” was allowed, the

plaintiff would succeed in circumventing the local law which

prohibits sale transaction such as the present one and that the

relief sought at prayers “b” to “n” would naturally follow and

the plaintiff’s contract of sale with Ledup Lepcha which is void

ab initio will acquire legality with the approval of the Court.

Therefore, the learned Appellate Court justified the opinion of

the learned First Court.

23. In such a situation the question whether prayer “a” being

subsequently allowed or not was unnecessary to be examined

at that stage. A prayer would necessarily be allowed after a

trial. Therefore, even if prayer “a” remained as it is in the

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Mani Kumar Gurung vs. Govind Khati & Ors.

plaint beyond the stage of consideration of the Order VII Rule

11 CPC application and it was sent for trial it did not preclude

the Courts to subsequently hold the prayer to be not

maintainable. Thus, the perception of catastrophic

consequences as perceived by the learned Appellate Court on

such prayer being allowed was not necessary at the stage of

examining the averments in the plaint to see if the plaint could

be rejected as being barred by law. When a suit is filed against

several defendants seeking different set of reliefs against those

defendants, it is incumbent upon the Court to examine each of

the prayers and come to the conclusion if each of them were

maintainable or not.

24. The plaint discloses at least two clear causes of action.

The cause of action against the defendant no.1 was his

encroachment of Schedule B property which was in the

plaintiff’s possession. The other cause of action was against the

State-respondents for their actions and inactions as specifically

pleaded in the plaint.

25. At this juncture it may be relevant to examine the law of

possession of immovable property. The learned Senior Counsel

for the appellant has relied upon the judgment of the Supreme

Court in Poona Ram vs. Moti Ram (Dead) Through Legal

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Mani Kumar Gurung vs. Govind Khati & Ors.

Representatives & Ors.

2

Although the case was arising from a suit

for possession based on possessory title/previous possession

and not ownership/proprietary title what has been expounded

in paragraph 11 to 14 would be relevant for us to appreciate

certain settled legal principles on possession of immovable

property as propounded therein.

“11. The law in India, as it has developed,

accords with jurisprudential thought as

propounded by luminaries like Salmond. Salmond

on Jurisprudence (12 Edn. at paras 59-60) states:

"These two concepts of ownership and

possession, therefore, may be used to

distinguish between the de facto possessor

of an object and its de jure owner, between

the man who actually has it and the man

who ought to have it. They serve also to

contract the position of one whose rights are

ultimate, permanent and residual with that

of one whose rights are only of a temporary

nature.

x x x x x

In English law possession is a good

title of right against anyone who cannot

show a better. A wrongful possessor has the

rights of an owner with respect to all

persons except earlier possessors and

except the true owner himself. Many other

legal systems, however, go much further

than this, and treat possession as a

provisional or temporary title even against

the true owner himself. Even a wrongdoer,

who is deprived o f his possession, can

recover it from any person whatever, simply

on the ground of his possession. Even the

true owner, who takes his own, may be

forced in this way to restore it to the

wrongdoer, and will not be permitted to set

2

(2019) 11 SCC 309

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Mani Kumar Gurung vs. Govind Khati & Ors.

up his own superior title to it. He must first

give up possession, and then proceed in due

course of law for the recovery of the thing

on the ground of his ownership. The

intention of the law is that every possessor

shall be entitled to retain and recover his

possession, until deprived of it by a

judgment according to law.

Legal remedies thus appointed for the

protection of possession even against

ownership are called possessory, while those

available for the protection of ownership

itself may be distinguished as proprietary. In

the modern and medieval civil law the

distinction is expressed by the contrasted

terms petitorium (a proprietary suit) and

possessorium (a possessory suit)."

12. As far back as 1924, in the case

of Midnapur Zamindary Co. Ltd. v. Naresh Narayan

Roy, AIR 1924 PC 144, the learned Judge

observed that in India, persons are not permitted

to take forcible possession; they must obtain such

possession as they are entitled to through a

court. Later, in Nair Service Society Ltd. v. K.C.

Alexander, AIR 1968 SC 1165, this Court ruled

that when the facts disclose no title in either

party, possession alone decides. It was further

held that if Section 9 of the Specific Relief Act,

1877 (corresponding to the present Section 6) is

employed, the plaintiff need not prove title and the

title of the defendant does not avail him. When,

however, the period of six months has passed,

questions of title can be raised by the defendant,

and if he does so the plaintiff must establish a

better title or fail. In other words, such a right is

only restricted to possession in a suit

under Section 9 of the Specific Relief Act

(corresponding to the present Section 6) but does

not bar a suit on prior possession within 12 years

from the date of dispossession, and title need not

be proved unless the defendant can provide one.

13. It was also observed by this Court

in Nair Service Society Ltd (supra) that a person in

possession of land in assumed character of owner

and exercising peaceably the ordinary rights of

ownership has a perfectly good title against the

entire world except the rightful owner. In such a

case, the defendant must show in himself or his

predecessor a valid legal title and probably a

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Mani Kumar Gurung vs. Govind Khati & Ors.

possession prior to the plaintiff‟s, and thus be able

to raise a presumption prior in time.

14. In Rame Gowda v. M. Varadappa

Naidu (2004) 1 SCC 769, a three-Judge Bench of

this Court, while discussing the Indian law on the

subject, observed as under:

“8. It is thus clear that so far as the

Indian law is concerned, the person in

peaceful possession is entitled to retain his

possession and in order to protect such

possession he may even use reasonable

force to keep out a trespasser. A rightful

owner who has been wrongfully

dispossessed of land may retake possession

if he can do so peacefully and without the

use of unreasonable force. If the trespasser

is in settled possession of the property

belonging to the rightful owner, the rightful

owner shall have to take recourse to law; he

cannot take the law in his own hands and

evict the trespasser or interfere with his

possession. The law will come to the aid of a

person in peaceful and settled possession by

injuncting even a rightful owner from using

force or taking the law in his own hands, and

also by restoring him in possession even

from the rightful owner (of course subject to

the law of limitation), if the latter has

dispossessed the prior possessor by use of

force. In the absence of proof of better title,

possession or prior peaceful settled

possession is itself evidence of title. Law

presumes the possession to go with the title

unless rebutted. The owner of any property

may prevent even by using reasonable force

a trespasser from an attempted trespass,

when it is in the process of being committed,

or is of a flimsy character, or recurring,

intermittent, stray or casual in nature, or

has just been committed, while the rightful

owner did not have enough time to have

recourse to law. In the last of the cases, the

possession of the trespasser, just entered

into would not be called as one acquiesced

to by the true owner.”

26. Even if the learned Courts were of the prima facie view

that in view of Revenue Order No.1 the declaration sought for

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by the plaintiff that Schedule B property was the property of

the plaintiff may not be grantable, it was incumbent upon both

the learned Courts to first examine if the rest of the prayers

could survive. As seen in the present case as against the

alleged encroacher i.e. the defendant no.1 the plaintiff would

definitely have a right stemming from his possession from

1980 even if it was illegal. If the purported sale deed was in

fact an executed agreement for sale in the year 1980 with

Ledup Lepcha by the plaintiff and he has been in continuous

and uninterrupted possession thereof since then as pleaded, he

had the right and duty to protect it as against the encroacher.

If subsequently, it is held that there actually was no transfer of

the Schedule B land to the plaintiff by Ledup Lepcha and the

transaction was void in view of the mandate of Revenue Order

No.1, the plaintiff would still have a right to pursue for the

realization of the consideration amount he purportedly paid to

Ledup Lepcha for the purported sale in the year 1980 after

which possession was handed over to him. For such an

eventually he would also have to protect the Schedule B

property which he had purportedly purch ased from Ledup

Lepcha to be able to return it and get back his consideration

amount.

27. The suit land as per the plaintiff in the plaint is the

Schedule B land encroached by the defendant no.1 and not the

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Schedule A land as perceived by the learned Courts. Prayer “b”

to prayer “f” as quoted above could not have been held to be

not maintainable before a trial against the defendant no.1 who

is alleged to be the encroacher of the Schedule B property.

Holding thus I refrain from examining the maintainability of the

rest of the prayers against the defendants to enable the

learned First Court to independently examine it without any

opinion being rendered by this Court. I am unable to agree to

the view taken by the learned First Appellate Court that the

rest of the prayers in the plaint were all consequential to the

grant of prayer “a”. I am also not in agreement to the opinion

that since prayer “a” was not grantable as it was against

Revenue Order No.1 the other prayers would not survive. If

prayers “b” to “f” are held not to survive because prayer “a”

was against Revenue Order No.1 the plaintiff would be

deprived of his right to protect his possessory right over

Schedule B property which was allegedly encro ached by the

defendant no.1 who had no better title.

28. In Central Bank of India v. Smt. Prabha Jain

3

the

Supreme Court has held that if the Civil Court is of the view

that one relief say relief A is not barred by law but is of the

view that relief B is barred by law, the Civil Court must not

3

(2025) 4 SCC 38

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make any observations to the effect that relief B is barred by

law and must leave that issue undecided in an Order VII Rule

11 application. This is because if the Civil Court cannot reject

the plaint partially then by the same logic it ought not to make

any observations against relief B. Even if one relief survives

the plaint cannot be rejected under Order VII Rule 11 CPC.

29. The substantial question of law framed by this Court is

answered in favour of the plaintiff i.e. the appellant herein and

against the defendants.

30. Consequently, I am of the view that the concurrent

judgments rendered by the learned First Court and the learned

Appellate Court needs to be interfered with. The impugned

judgment of the learne d Appellate Court as well as the

judgment of the learned First Court are set aside. The Regular

Second Appeal is allowed and the case is reverted to the

learned First Court to proceed with it in accordance with law.

31. The observation made in this judgm ent is solely for the

purpose of determining whether the impugned judgment

rejecting the plaint as being barred by law was correct or not.

The learned First Court may not be influenced by any

observation touching upon the merits while examining the case

independently during the trial.

21

RSA No. 02 of 2024

Mani Kumar Gurung vs. Govind Khati & Ors.

32. Copies of this judgment shall be forwarded to both the

learned Appellate Court as well as the learned First Court along

with the respective records.

( Bhaskar Raj Pradhan )

Judge

Approved for reporting :Yes

to