Full Judgment Text
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CASE NO.:
Appeal (civil) 9265 of 1995
PETITIONER:
M.T.W. Tenzing Namgyal & Ors.
RESPONDENT:
Motilal Lakhotia & Ors.
DATE OF JUDGMENT: 05/02/2003
BENCH:
CJI, S.B. Sinha & AR. Lakshmanan
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The appellants herein are successors in interest of late Chogyal Sir
Tashi Namgyal of Sikkim.
A suit was filed by Mewang Tobgyal Wangchuk Tenzing Namgyal
son of late Chogyal Palden Thondup Namgyal and others against the
defendants respondents herein praying for the following reliefs :
(a) recovery of possession of the encroached portion of the land shown
in the annexed plan if required, by demolishing the construction
made thereon;
(b) permanent injunction restraining the defendants from using the
aforesaid 12 feet wide passage or making any construction
whatsoever over the same;
(c) pending disposal of the suit an order for restraining the defendants
from construction of the flyover or blocking the passage and also
restraining the defendants from carrying on with further work of
construction on the encroached land shown in the attached plan;
(d) cost of the suit;
(e) any other relief or reliefs to which the plaintiff may be found
entitled to under law and equity.
Shortly stated, the said suit was filed on the following allegations :
Plot Nos. 1013, 1014 and 1040 (part) situated at Gangtok belonged to
late Chogyal Sir Tashi Namgyal of Sikkim were his personal properties
forming part of his private estate which upon his death devolved on the
original plaintiff and on his death upon the appellants. Allegedly, one pucca
building was constructed on Plot No. 1014 situated at New Market Road,
Gangtok which was let out to the tenants. On the adjacent land to the same
building, there existed a private passage of 12 feet width made of steps and
further on the adjacent south thereto, there was another building known as
Yuthok building situated on Plot No. 1012. Another passage existed behind
the aforesaid two buildings which is said to be a private gully being Plot No.
1013. There are two wooden buildings used as kitchen, latrines and godown
for the use of tenants occupying Nayabazar building and Yuthok building.
Allegedly there was a retaining wall on the west of Plot No. 1040
(part) which was the boundary between the land of the Plaintiffs’ private
estate and the land of defendant No. 2.
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According to the plaintiffs, the defendants started construction of a
big pucca building for the purpose of running a hotel on the land situated on
the south of his land being Plot no.1040 and allegedly the defendants
illegally encroached upon about 6,600 sq. ft. therein.
The defendants filed their written statement denying and disputing the
allegations made in the plaint. The defendants although admitted the
existence of the pucca building and the flight of steps but contended that the
latter belonged to Gangtok Municipality which was meant to serve as the
exclusive passage to the plot on which defendant No. 2 had been
constructing a multi-storeyed building. It was alleged that beyond the
structures of the plaintiffs a precipitated hill edge exists on the eastern
boundary of the defendants’ land and the same was all through in their
exclusive possession. The defendants claimed settlement of their land by
reason of three documents which were marked as Exhibits D-9, D-10 and
D-11 of the years 1961, 1975 and 1977 respectively.
The said suit was initially dismissed by the District Judge, Gangtok by
a judgment and decree dated 29th March, 1985 whereagainst the plaintiffs
preferred an appeal before the High Court. By a judgment dated 11.8.1986
while setting aside the judgment and decree of the learned District Judge the
matter was remanded with a direction to appoint another Commissioner to
make local investigation with reference to the cloth survey map and on
actual measurement on the spot so as to ascertain the actual area of Plot No.
1040, the area covered by the Denzong Cinema, the Tashi Delek Hotel and
the exact location of all other constructions in a map. An opportunity was
also given to the parties to re-examine their witnesses to clear the anomalies
indicated in the said judgment.
Pursuant to or in furtherance of the said direction contained in the
said judgment, the leaned District Judge appointed another Commissioner
who, inter alia, found that Plot No. 1040 measures 0.69 acres out of which
the land allotted to the defendants was 13, 879 sq. ft. and the total area of
constructions made by defendant Nos. 1 and 2 being the Denzong Cinema,
two shop houses and hotel comes to 13, 616.46 sq. ft., which was accepted
by the defendants but according to the plaintiffs the same was 13, 503.60 sq.
ft.
The learned District Judge, Gangtok by a judgment and decree dated
26.2. 1988 decreed the suit. A Division Bench of the High Court, however,
in appeal reversed the said judgment and decree by a judgment dated 30th
June, 1994.
The appellants are before us in appeal questioning the correctness or
otherwise of the said judgment.
Mr. G.L. Sanghi, learned senior counsel appearing on behalf of the
appellants, inter alia, submitted that the High Court committed a serious
error in construing the Khasra (Exhibit P-36) in so far as it held that entries
appearing in the name of Sir Tashi Namgyal did not belong to his private
estate. The learned counsel would contend that the High Court further fell in
error in holding that his Plot No. 1040 being situated within the bazar area
was acquired for a sum of Rs. 1,50,000/-. It was submitted that as there had
been no transfer of title from the plaintiffs to the private estate in any
manner whatsoever, the Government of Sikkim did not derive any title
thereto.
Mr. Sanghi would contend that the purported acquisition of the suit
land said to have been proved by Exhibits D-7, D-14 and D-23/12 does not
show that there had been any transfer of property within the meaning of
Section 54 of the Transfer of Property Act which was applicable to the State
of Sikkim and in absence thereof the ownership of the plaintiffs in respect
of Plot Nos. 1013 and 1040 continued with the plaintiffs. Drawing our
attention to certain findings of the High Court in Civil Appeal No. 2 of 1985,
the learned counsel would argue that the High Court in its judgment arrived
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at an erroneous conclusion that as ’private estate’ had not been mentioned
against the Plot Nos. 1013 and 1040 in Exhibit P-36, the same had vested in
the State of Sikkim.
Mr. Mitra, the learned senior counsel appearing on behalf of
respondent no.1, on the other hand, would submit that the conspectus of
events found by the High Court in the judgment under appeal would clearly
establish that the defendants have constructed the hotel building in
accordance with the sanction accorded by the competent authorities. It was
submitted that most of the documents, whereupon reliance had been placed
by the High Court were produced by the plaintiffs and/or received from the
custody of their witnesses. Mr. Mitra would contend that having regard to
the facts and circumstances of this case no presumption can be raised as
regards correctness of the entries made in Khasra (Exhibit P-36). In support
of the said contention, strong reliance has been placed on Sita Ram Bhau
Patil vs. Ramchandra Nago Patil (Dead) By L.Rs. and Another [(1977) 2
SCC 49].
Mr. Bhaskar Gupta, the learned senior counsel appearing on behalf of
respondent No. 2 would submit that as in the instant case, the plaintiffs have
not been able to prove their title over Plot No. 1040, an independent
investigation thereof with reference to the defendants’ title was not
necessary. The learned counsel in support of the said contention placed
strong reliance on Nagar Palika, Jind Vs. Jagat Singh, Advocate [(1995) 3
SCC 426].
The Plaintiffs’ predecessor in interest was late Chogyal Sir Tashi
Namgyal of Sikkim. There is, therefore, no question of plaintiffs’ having
any document of title.
The only document of title which was produced by the plaintiffs in
support of their claim is the aforementioned Khasra (Exhibit P-36). In
Exhibit P-36 entries against different plots, inter alia, have been made in the
name of ’Sarkar’ as also in the name of ’Shri Panch Maharaja Sir Tashi
Namgyal of Sikkim’. Certain plots have also been recorded as ’Private
Estate. Plot No. 1013 has been recorded in the name of Shri Panch Maharaj
Sir Tashi Namgyal. Plot Nos. 1014 and 1040 have also been recorded in his
name. In none of the entries the area of the plots is mentioned. It is relevant
to note that the plaintiffs in their plaint claimed ownership in respect of Plot
nos. 1013, 1014 and 1040 (part). No claim had been made in the plaint that
the entire plot No. 1040 belonged to the plaintiffs.
How the plaintiffs claimed title in respect of a part of Plot No. 1040
has also not been disclosed. The said Khasra was prepared in the year 1954.
However, admittedly a suggestion to acquire the said land was mooted to the
effect that a lump-sum payment may be made to the ’private estate’ in lieu
of the bazar area with all the income accruing therefrom upon payment of a
sum of Rs. 1,50,000/- to the private estate, so that the same may vest in the
Sikkim Darbar.
The said proposal was put up for approval and sanction of the
Chogyal. On 22nd June, 1959, the said proposal was accepted. Requisite
steps for payment of the said amount to the private estate were taken on 26th
June, 1959. Exhibit D-7 contains an entry in the cash book of the Finance
Department of Sikkim regarding payment of Rs. 1,50,000/-. Exhibit D-8 is a
classified abstract showing the expenditure of the Government of Sikkim for
the year 1959-60 regarding payment of Rs. 1,50,000/-. Both Exhibits D-7
and D-8 are dated 07.12.1959.
The High Court recorded a finding to the effect that all lands which
were entered in the Khasra (Exhibit P-36) in the name of Sir Tashi Namgyal
did not belong to his private estate. The said finding, however, may not be
correct in view of the fact that admittedly his lands in suit were subject
matter of acquisition.
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We, therefore, may proceed on the assumption that the said finding of
the High Court is incorrect.
The question which, therefore, ought to have been raised was not that
as to how the said property was treated prior to 24.6.1959 but how the said
property has been treated thereafter. It is not in dispute that the Sikkim
Darbar granted settlement of piece and parcel of land measuring (166’ x 66’
+ 24’/2 x 16’) in favour of the first respondent for construction of
Cinema Hall on 10-4-1961. Several letters appear to have been passed
between the Executive Officer, Bazar Department of Government of Sikkim
and the respondents herein with regard to the constructions on the said land.
Admittedly the original plaintiff held shares in Denzong Cinema Limited. It
is also beyond any dispute that construction of the Cinema Hall started in the
year 1969. The State of Sikkim merged with the Union of India in terms of
an agreement on 26th April, 1975.
Article 371 F(h) of the Constitution of India reads thus:
"371F. Special provisions with respect to the
State of Sikim. Notwithstanding anything in this
Constitution, -
(h) all property and assets (whether within or
outside the territories comprised the State of
Sikkim) which immediately before the appointed
day were vested in the Government of Sikkim or in
any other authority or in any person for the
purposes of the Government of Sikkim shall, as
from the appointed day, vest in the Government of
the State of Sikkim;"
After merger of Sikkim in the Union of India, the proposal to
construct a hotel started. The records of the case clearly demonstrate that for
the purpose of construction of hotel the defendants not only sought for but
also were granted additional lands. They took permission for construction of
the hotel from the appropriate authorities.
In this connection, it will be relevant to notice the following
important documents:-
1.
24-6-76 to
22-7-76:
Ex. P-24, P-25 and P-26 are extracts taken out
from N.S. page 29 of File No.4(6)1962-63, 76-77
which contain the request of Managing Director,
Denzong Cinema Ltd., Gangtok for grant of
permission for running a hotel in the extension of
the back side block of cinema premises and for
diversification of investment of the Denzong
Cinema towards hotel business and the
recommendations of the Secretary, Finance, Chief
Secretary and the Chief Minister thereon.
2.
24-7-76
Ex. P-23 is the letter written by Secretary,
Finance, Government of Sikkim to the Managing
Director, Denzong Cinema Ltd. informing that the
Government of Sikkim gave its concurrence to
their proposal for running of a hotel. The
Management was requested to obtain formal
permission therefor.
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3.
23-8-76
Ex. P-1 is the letter from the Managing Director,
Denzong Cinema Limited to the Chairman, GMC
for according permission for extension to the
present construction of Denzong Cinema complex
to construct a tourist hotel.
4.
23-8-76
Ex. P-1 contains the comments offered by the
Executive Officer of the GMC, recommending
the proposal of extension to the present
construction of Denzong Cinema complex.
5.
10-9-76
Ex. P-2 is the site plan for addition and alteration
to the Hotel Building (5th and 6th floors) which
was approved by the GMC.
6.
15-9-76
Ex. P-3 is the letter from the Executive Officer,
GMC to the Managing Director, Denzong Cinema
Ltd. informing that GMC approved their BP
Building Plan and permitted construction on
certain terms and conditions.
7.
7-12-76
Ex. D-20 is the letter from the Under Secretary,
Local Self Govt. Dept. Gangtok, to the Managing
Director, Denzong Cinema Ltd. conveying the
proposal to allot a site measuring 43’ x 10’ and
24’ x 30’ for hotel behind Denzong Cinema.
8.
7-1-77
Ex. D-11 is the letter from the Joint Secretary,
Local Self Government Department, Gangtok to
M/s Denzong Cinema Ltd. allotting additional site
for extension of the hotel under construction.
9.
18-1-77
Ex. P-11 is the letter of the counsel for the
appellant to Respondent No. 1 regarding
encroachment of his client’s land. (Note that
there is no complaint regarding encroachment into
Private Estate)
10.
27-1-77
Ex. P-12 is the letter for an on behalf of Prince
T.G., Vapshi Yuthok to the Secretary, Local Self
Government, Gangtok, regarding encroachment
on the boundary of Yuthok building:
(Note that no complaint that construction was on
Private Road).
11.
29-01-77
Ex. P-10 is the letter of P.W.2, Executive Officer,
GMC to the District Magistrate, Gangtok
regarding violation of approved BP Plan and
unauthorized construction. (Note no mention of
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encroachment on Private Estate: Only complaint
is that construction was being made not according
to approved plan).
12.
31-1/2-2/77
Ex. P-13 contains notings of the Chairman, GMC,
E.O., D.M.: BP plan for construction of the hotel
on the additional site was approved by the GMC.
13.
31-1-77
Ex. D-1 is the letter from the Executive Officer,
GMC to M/s Denzong Cinema Ltd, Gangtok.
P.W. 2 communicated approval of the BP Plan to
the Defendant.
14.
5-2-77
Ex. D-4 is the copy of the BP plan as sanctioned
by the GMC
15.
18-3-77
Ex. P-15 is the letter from Respondent No.2 to the
Minister for Local Self Government, Sikkim.
Defendant complained to GMC regarding
removal of barbed wire fencing from the gully.
16.
19-3-77
Ex. P-15 is the noting of E.O. Endorsement on
the letter by the Chairman that the gully belonged
to the Government, and as such unauthorized
construction of barbed wire fencing has to be
removed at the earliest.
17.
30-6-77
Ex.D-2 is letter from P.W. 2, Executive Officer of
GMC, enclosing therewith a report of the
Corporation Engineer. D-3 is the report of the
Corporation Engineer indicating that construction
of the hotel Building and the ramp are according
to plan.
18.
12-10-77
Ex. D-12 is the rough sketch of the site allotted to
Respondent No.1 by the Government on 7.1.1977
and D-13 is the letter from the Under Secretary,
Local Self Government Department, Gangtok to
Respondent no.1 forwarding the same to him.
The High Court discussed the evidence brought on records by the
parties in great details. On cogent and sufficient reasons it did not accept the
statements of the witnesses examined on behalf of the plaintiffs. Relying on
or on the basis of various documents, it came to the conclusion that even if
the private estate said to be belonging to late Chogyal had any interest in
Plot Nos. 1010 and 1013, the same was acquired by the Government and,
thus, ceased to be the private estate on and from 1959. The High Court
further took into consideration various documents as to how the Government
had treated Plot No. 1040 as belonging to it and not to the ’estate’, both
before and after merger of Sikkim with Government of India. It, as noticed
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hereinbefore, further held that the constructions raised by the defendants
were within the land settled in favour of the respondents by Exhibits D-9, D-
10 and D-11.
The High Court in its judgment also took into consideration the report
of the Second Advocate Commissioner and relied thereupon.
The plaintiffs claimed title over the suit land on the basis of their title
thereupon and not on previous possession. Their case, thus, must stand or
fall on their own pleadings. As indicated hereinbefore, the plaintiffs
proceeded on the basis that they were owners of a part of Plot No. 1040.
They did not specify the extent thereof. They did not say how and to what
extent a part of Plot no.1040 belonged to them. They did not question the
settlements made by the Sikkim Darbar in favour of the respondents and
various other persons. In fact, the plaintiffs’ predecessor held shares in the
defendant No. 2 company. In the facts and circumstances of the case it was
obligatory on the part of the plaintiffs to prove that the lands allegedly
encroached upon by the defendants belonged to them. Plaintiffs have
miserably failed to prove the same. Furthermore, indisputably the bazar area
had been acquired by the Sikkim Darbar. Mr. N.K. Rustomji, who was
Diwan of Sikkim at the relevant time, examined himself as witness No. 6 for
the Plaintiffs. He in no uncertain terms stated:
"I understand the meaning of ’acquisition’. The
heading of the file as given on page of the note is
"Acquisition of private estate land for Gangtok
Bazar and payment of lumpsum compensation Rs.
1,50,000/- to the Private Estate".
The other documents referred to hereinbefore, namely, Exhibits D-7,
D-14, and D-23 to D-23/12 are also clear pointers to the fact that certain
properties over which late Chogyal of Sikkim had been claiming right as its
private estate were acquired by the Sikkim Darbar of which he was the head.
The owner of the land accepted the amount of compensation without any
demur whatsoever and in that view of the matter he as well as his successors
in interest are estopped and precluded from contending that the said
properties did not vest in the Sikkim Darbar and consequently in the
Government of India.
The submission of Mr. Sanghi to the effect that the plaintiffs
continued to have title in respect of the lands in question despite acquisition
thereof must, therefore, be rejected.
It is not in dispute that Sikkim prior to its merger with the Union of
India was a sovereign State. Chogyal was the owner of the entire properties.
Evidently the lands were recorded in different names. If Chogyal of Sikkim
exercised his right of ’Eminent Domain’ in relation to the suit properties
which were said to be belonging to his private estate, no registered deed of
sale was required to be executed in his favour.
In any event, once the said lands are held to have vested in the Sikkim
Darbar, the same consequenty vested in the Government of Sikkim for the
purpose of the Government.
The khasra and khatian have not been prepared under a statute. The
question as to whether the same would be historical material or instrument
of title or otherwise, would depend upon either the statute governing the
same or the practice prevailing in the State. In the event, however, the
records of right were not prepared under a statute, a presumption of
correctness may be raised only in terms of Section 35 of the Indian Evidence
Act.
However, ordinarily records of right cannot be treated to have any
evidentiary value on the question of title inasmuch as such records are
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prepared mainly based on possession.
The entries in the Khasra (Exhibit P-36) must, therefore, be construed
keeping the aforementioned principles of law in view.
In Sita Ram Bhau Patil (supra), this Court held :
"With regard to the record of rights Counsel for
the appellant said that presumption arises with
regards to its correctness. There is no abstract
principle that whatever will appear in the record of
rights will be presumed to be correct when it is
shown by evidence that the entries are not correct.
Apart from the intrinsic evidence in the record of
rights that they refer to facts which are untrue it
also appears that the record of rights have
reference to the mutation entry that was made by
the Circle Officer on January 30, 1956. Counsel
for the respondent rightly contended that no
presumption could arise for two principal reasons.
First, the oral evidence in this case nullified the
entries in the record of rights as showing a state of
affairs opposed to the real state of affairs and,
second, no notice was ever given to the respondent
with regard to mutation proceedings. Therefore
the respondent is right in contending that no
presumption can validly arise from the record of
rights."
Having regard to the fact that the plaintiffs never claimed any right
over the entire Plot No. 1040 and further having regard to the fact that only a
toilet was said to have existed thereupon, as also having regard to the
subsequent events which took place, namely, acquisition of land, we are of
the opinion that the entry in Exhibit P-36 is not of much value for the
purpose of showing that the plaintiffs continued to have title over the said
property.
Furthermore, the plaintiffs claimed title over the suit land. The trial
Court in a case of this nature was bound to enquire or investigate into the
question of title and could not have decreed the suit merely on the basis of
the entries in the revenue records [See Nagar Palika Vs. Jagat Singh
(supra)].
For the reasons aforementioned, we are of the opinion that no case has
been made out for our interference with the judgment and decree under
appeal. This appeal is, therefore, dismissed but in the facts and
circumstances of the case, there shall be no order as to costs.