Sikkim High Court
K.B.Bhandari vs Laxuman Limboo And Anr on 12 July, 2017
Equivalent citations: AIR 2017 SIKKIM 37, (2017) 178 ALLINDCAS 347 (SK)
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 12th JULY, 2017
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.02 of 2016
Appellant : Shri K. B. Bhandari,
S/o Late Amber Singh Bhandari,
Aged about 53 years,
R/o Malbasey,
Soreng,
West Sikkim.
versus
Respondent : Shri Laxuman Limboo,
S/o Late Til Bahadur Limboo,
R/o Tharpu,
West Sikkim.
Pro-forma Respondent : Shri Naval Kishore (Das) Chettri,
S/o Late Bhuwan Singh Chettri,
R/o Tharpu,
West Sikkim.
Appeal under Section 100 read with Section
151 of the Code of Civil Procedure, 1908.
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Appearance
Mr. Udai P. Sharma, Advocate with Mr. Anup Gurung, Advocate
for the Appellant.
Mr. N. Rai, Senior Advocate with Ms. Tamanna Chhetri and
Mr. Suraj Chhetri, Advocates for the Respondent No.1.
None for Respondent No.2.
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RSA No.02 of 2016 2
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
JUDGMENT
Meenakshi Madan Rai, J.
1. This Appeal arises out of the impugned Judgment of the learned District Judge, East Sikkim at Gangtok, in Title Appeal No. 2 of 2015, dated 9.6.2016, which in turn arose out of the impugned Judgment and Decree of the learned Civil Judge, East Sikkim at Gangtok, in Title Suit No. 9 of 2014 dated 30.4.2015.
2. The learned Appellate Court, vide its impugned Judgment confirmed the findings of the learned Civil Judge, East Sikkim, hence this Second Appeal which was admitted on the following substantial question of Law.
"Whether in arriving in its findings, the Judgment of the First Appellate Court has ignored the material evidence on record?"
3. In order to understand the matter in its correct perspective, it is essential to briefly advert to the facts of the case. The appearance of the parties before the learned Trial Court was as follows;
The Appellant before the First Appellate Court and herein, was the Defendant No.1. The Respondent No.1 was the Plaintiff, while the Pro-forma Respondent herein was the Defendant No.2. The parties shall be addressed herein in terms of their appearance before this Court. As the Defendant No.3 before the learned Trial RSA No.02 of 2016 3 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another Court is not a party to this Appeal, he shall be referred to as Defendant No.3.
4. It was averred by the Respondent No.1 before the learned Trial Court that he is the son of Til Bahadur Limboo, who owned landed property, which included Plot No. 250 and 251 under Khatiyan No. 25, having an area of 1.20 acres and 0.38 acres respectively at Tharpu Block, Soreng, West Sikkim. In the year 1979, Til Bahadur Limboo sold out a portion of land from Plot No. 250, measuring an area of 0.15 acres equivalent to 0.0600 hectare to late Phip Raj Limboo. Phip Raj Limboo in turn, in 1983, sold the aforesaid land measuring 0.15 acres to the Appellant, by which time the Plot Number was renumbered as 329 and the area measured in hectares. The sold land did not share any boundary with the Naya Bazaar Sombaria road. After a few years of such purchase, the Appellant started encroaching on another plot of land belonging to Til Bahadur Limboo, being Plot No. 324 and into the unsold portion of Plot No.329. The Appellant, after purchasing the land from Phip Raj Limboo, interpolated the Sale Deed document, Exhibit D-1-1, executed between him and late Phip Raj Limboo, thereby increasing the area of land purchased by him to 0.19 acres equivalent to 0.0780 hectare, instead of 0.15 acres equivalent to 0.0600 hectare, actually purchased by him. He then sold a portion of the land from Plot No. 329 to the Pro-forma Respondent in the year 1999, who also started encroaching upon Plot No. 324 of the land of the Respondent No.1 and the unsold portion of Plot No.329, hence the Respondent No.1, inter alia, sought the following reliefs; RSA No.02 of 2016 4
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another "a) a decree declaring that the suit land is the integral part of plot No. 324 and unsold portion of plot No. 329 belonging to the plaintiff and the plaintiff has right, title and interest over the suit land.
b) a decree directing the defendant No.1 and 2 for vacating the Schedule land and to hand over the same to the plaintiff.
c) a decree for removal/demolition of the structure put up by the defendant No.1 and 2 upon the suit land.
d) a decree for nullifying and canceling the interpolation made in the sale deed of the Defendant No.1 and/or 2 and resultant direction to the defendant No.3 to make correction of the said documents along with the mutated records of right of defendant No.1 and/or 2, if any.
e) a decree directing the defendant No.1 and 2 to pay a compensation of Rs.50,000/- to the plaintiff for the damages caused to the suit land.
f) the cost of this title suit may be awarded to the plaintiff.
g) any other relief or relieves as the plaintiff may be found entitled to under the law."
5. The Appellant for this part averred that his land is covered by Khasra No. 329/684 and he had originally purchased 0.0780 hectare of land from Plot No.329. That, the boundaries mentioned by the Respondent No.1 in the Plaint are incorrect, as the Northern boundary extended up to the Naya Bazaar Sombaria road. According to him, he retained 0.0080 hectare from Plot No. 329 for his own use, after selling the larger portion to Pro-forma Respondent and therefore, has been in possession since the year 1983 i.e. more than 12 years and has perfected his right, title and interest over the Suit property by way of adverse possession.
RSA No.02 of 2016 5
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
6. The Pro-forma Respondent denied and disputed the claims of the Respondent No.1 and claimed to have purchased 0.0700 hectare from the Appellant in the year 1999 vide a registered Sale Deed, duly registered in the office of the Sub- Registrar, Soreng, West Sikkim. Hence, the question of encroaching upon the land of the Respondent No.1, does not arise.
7. The Defendant No.3, the Sub-Registrar/Sub-Divisional Officer (not a party in this Appeal) for his part, averred that he had no role to play in the interpolation of documents as alleged.
8. The learned Trial Court on the basis of the pleadings of the parties settled the following Issues for determination.
"a) Whether the suit land/schedule land belongs to the Plaintiff and the Plaintiff has right, title and interest over it?
b) Whether Defendants no.1 and 2 are liable to vacate the suit land and to hand over the possession of the same to the Plaintiff? And if so, whether the Defendants no. 1 and 2 are liable to remove/demolish the structure upon the suit land?
c) Whether the sale deed of Defendants no. 1 and 2 have been interpolated rendering the same null and void. If so, whether Defendant No.3 is required to make correction of records of right (Sale deed and mutation records) of the Defendants no.1 and 2 vis-
a-vis the Plaintiff?
d) Whether the suit has been under valued or not?
e) Whether the Defendants No.1 and 2 are liable to pay compensation to the Plaintiff for the damage of the suit land?
f) Whether the Defendant No.1 has acquired right, title and interest over the suit property measuring 0.0780 hectares by virtue of the Principles of Adverse Possession?
g) Any other reliefs, as the Plaintiff is entitled to?" RSA No.02 of 2016 6
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
9. The Respondent No.1 examined himself as P.W.1 and two other witnesses i.e. P.W.4 and P.W.5 in support of his case but dropped his witnesses, P.W.2 and P.W.3, before the learned Trial Court. The Appellant examined himself as D.W.1 and three others i.e. D.W.2, D.W.3 and D.W.4 in support of his case. Pro-forma Respondent examined himself as D.W.1 and two other witnesses.
10. The learned Trial Court took up Issues (a) and (f) together and considered Exhibit 1 to Exhibit 6, Exhibit 14, Exhibit 15, Exhibit D-1-1 and the evidence of the witnesses and concluded that the evidence and documents on record establishes that the Appellant and the Pro-forma Respondent, herein, had encroached upon the land of the Respondent No.1, being 0.08 acres in Plot Nos. 324 and 329. It was also found that the Appellant could not show that he had perfected his title by way of adverse possession. For Issue (b), it was found that the Appellant and the Pro-forma Respondent are liable to remove/demolish any existing structure over the encroached portion of the Suit land. In Issue (c), the Court concluded that there appeared to be corrections made in Exhibit D- 1-1, without following the mandate of the Registration Rules and there is encroachment by the Appellant and the Pro-forma Respondent upon the land of the Respondent No.1. Thus, the records of right maintained in respect of Plot Nos. 324 and 329 be corrected accordingly. The Suit was not undervalued as per the finding in Issue (d). While discussing Issue (e), the learned Trial Court did not deem it appropriate to impose compensation on the Appellant and the Pro-forma Respondent, as the demolition, removal RSA No.02 of 2016 7 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another of the structure and restoration of the Suit property to its original form would suffice as compensation. Hence, the Suit of the Respondent No.1 was decreed accordingly.
11. The Appellant being aggrieved by the said Judgment was in Appeal before the Court of the learned District Judge, East Sikkim at Gangtok. The learned Appellate Court taking into consideration the entire evidence and documents relied on by the parties, concluded that the actual area of land sold by the Respondent No.1‟s father to Phip Raj Limboo was 0.15 acres, equivalent to 0.0600 hectare. When this was the factual position, the question of Phip Raj Limboo selling 0.0780 hectare did not arise. The learned Appellate Court took into consideration Exhibits C-1 to C-5 and concluded that the veracity of the documents were not free from uncertainty and thereafter confirmed the findings of the learned Trial Court.
12. Before this Court, it is urged by learned Counsel for the Appellant, that, the Appellant on 22.11.1983, purchased the Suit land measuring 0.0780 hectare, as per the new survey operations enforced from 17.1.1984, belonging to and recorded in the name of the vendor, one Phip Raj Limboo. However, the learned District Judge ignored the documents marked as Exhibits C-1, C-2, C-3, C-4 and C-5, produced by the P.W.4 Shri I.B. Limboo, which clearly establishes that Plot No. 329, measuring 0.0780 hectare, was recorded in the name of late Phip Raj Limboo. The Appellant after purchasing it, mutated the land in his name vide Mutation Order RSA No.02 of 2016 8 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another dated 19.04.1991, as borne out by Exhibit D-1-1, the Sale Deed document executed between the two persons.
13. It was expostulated by learned Counsel for the Appellant that the learned District Judge erred in considering the statements allegedly given by witnesses before the Sub-Divisional Magistrate, Soreng, when the statements had not been proved in accordance with law. The cross-examination of P.W.-4 was also ignored, as according to the witness, the Appellant was absent at the time of spot verification and the report was prepared without consulting the Sale Deed document of Phip Raj Limboo but was allegedly based on the Survey Map and Khatiyan Register. That, this evidence is falsified, as the Khatiyan Register reflects that the vendor‟s land covers an area of .0780 hectare. That, the First Appellate Court erred in holding that the Appellant had encroached an area measuring 0.08 acres in Plot No. 324 and 329, as Plot No. 324 did not exist after 17.1.1984 and Plot No. 329 was already converted to hectares. That, the findings of the learned District Judge are perverse, as the Land Records of 1951 ceased to be in operation since 17.1.1984, when the new Land Records were enforced. To substantiate this argument reliance was placed on S. R. Tewari vs. 1 Union of India , where while dealing with "perverse findings" it was held that findings of fact are perverse if arrived at by ignoring or excluding relevant material. That, the observation of the District Judge that the Trial Court had rightly relied on Section 10 of the Sikkim State Rules, Registration of Document, 1930, is erroneous, 1 (2013) 6 SCC 602 RSA No.02 of 2016 9 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another as the said Rule does not apply to documents which have already been accepted for registration. Besides, the learned Court also erred in holding that the Appellant being unsuccessful in establishing his case on title, would not be permitted to raise a contradictory claim on adverse possession. That, the findings of the learned District Judge, that the possession of the Appellant over the Suit property was not uninterrupted is perverse as the averments of the Respondent No.1 and his evidence indicate that shortly after the registration and mutation, the Appellant fenced the entire land with wires and constructed an Ekra house, hence it is prayed that the impugned Judgment and Decree dated 9.6.2016, be set aside.
14. To substantiate his submissions, learned Counsel for the Appellant placed reliance on Sashidhar and Others vs. Ashwini Uma 2 Mathad and Another . Reliance was also placed on S. R. Tewari vs. 1 Union of India with Contempt Petition (C): S. R. Tewari vs. R. K. Singh and Another. While forwarding the contention that Exhibits „C1‟ to „C5‟ were totally ignored by the Learned Trial Court while reaching its findings, thereby leading to a decision which is perverse, which therefore, can be set aside, support was taken from the decisions of Damodar Lal vs. Sohan Devi and Others3, Krishnan vs. Backiam and 4 Another and Easwari vs. Parvathi and Others5. Reliance was also placed on Vinod Kumar vs. Gangadhar6.
2 (2015) 11 SCC 269 3 (2016) 3 SCC 78 4 (2007) 12 SCC 190 5 (2014) 15 SCC 255 6 (2015) 1 SCC 391 RSA No.02 of 2016 10 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
15. Per contra, it was the contention of learned Senior Counsel for the Respondent that, in the first instance, the learned Trial Court has not ignored any substantial evidence placed before it and in Second Appeal, facts cannot be taken into consideration. That, the new records which are in hectares ought to have reflected the equivalent of 0.15 acres i.e. 0.0600 hectare but the land recorded in the name of the Appellant is in excess of his purchase and reflected as 0.0780 hectare. A perusal of the impugned Judgment would indicate that the Trial Court as well the First Appellate Court have considered all necessary evidence and the submission of the Appellant that there was no cross-examination conducted on the Sub-Divisional Magistrate‟s report is clearly misplaced and erroneous. Exhibit C1, Exhibit C-2 and Exhibit C-3 have been prepared on the basis of the Sale Deed, Exhibit D-1-1, which is incorrect, as a consequence, the other documents are incorrect as well. That, Exhibit D-1-1, the Sale Deed executed between Phip Raj Limboo and the Appellant, has been considered by the Trial Court which reveals that in the line "Khatiyan Plot No./Nos.", the numerical „329‟ in English has been inserted after scoring out the numerical „250‟, written in Nepali. The area i.e. .15 decimal Sukhabari which had been written in Nepali, has also been scored out and ".0780 hac" inserted, but there is no revelation as to who was responsible for the corrections. Exhibit 6 reveals that the Office is unaware of the interpolation on Exhibit D-1-1. Hence, the concurrent findings of the learned Courts below ought not to be disturbed.
RSA No.02 of 2016 11
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
16. I have heard learned Counsel at length and given due consideration to their submissions. I have also perused the entire records of the case including the evidence, documents and the impugned Judgment.
17. The argument that, the District Judge ignored the fact that the Plot No.329 bearing .0780 hectare, as per the new survey operation which came into force from 17.1.1984, and was mutated in the name of the Appellant vide Mutation Order dated 19.4.1991, is incorrect, as the Appellate Court has considered the evidence and documents on record and elaborately discussed it from Paragraph 28 to Paragraph 36 of the impugned Judgment.
18. The contention that the Appellate Court ignored Exhibits C-1 to C-5, meets the same fate as above, since Paragraph 41 of the impugned Judgment discusses these documents.
19. Exhibit C-3, which is a „Khatiyan‟, reveals that an area measuring .0780 hectare in Plot No. 329 is recorded in the name of the Appellant, it may be pointed out that undeniably the transaction between Phip Raj Limboo and the Appellant took place on 22.11.1983. If this be so then the endorsements on the document Exhibit C-3, which reads variously as, "Tailed (sic, Tallied)", "Retelied (sic, Retallied)" and "Copied by" different officials, i.e., Surveyors, purportedly of the office of the Sub-Divisional Magistrate, Soreng on 18.6.1981, defies logic. It is indeed baffling as to how the property came to be recorded in the name of the Appellant in 1981, RSA No.02 of 2016 12 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another as reflected in Exhibit C-3, when the sale transaction took place two years later in 1983. I cannot help but remark that the situation in Exhibit C-3 is identifiable to the limerick of a "Young lady named Bright". I refrain from reproducing the same herein but it is evident that Exhibit C-3 reflects registration of the land in the Appellant‟s name, prior to him having purchased it, which goes without saying is an incongruous situation. In this context, we may also peruse Exhibit D-1-1, the Sale Deed executed between Phip Raj Limboo and the Appellant, which fortifies the position that the sale transaction actually took place on 22.11.1983, which is also the date of cash payment. The document was presented for registration on 28.1.1985 and registered compulsorily on 20.12.1986. It is indeed unfathomable as to how Exhibit C-3 could indicate the Appellant‟s ownership in 1981, two years before the purchase of the land by him, from Phip Raj Limboo. Besides, both Courts below have reached a concurrent finding that the plot number on Exhibit D-1-1 has been altered from Plot No. 250 to Plot No. 329 and the area from 0.15 decimals to 0.0780 hectare, but no one has been able to enlighten the Courts as to on whose behest the alterations were inserted or who scribed the alterations and why no witness was examined in this regard to clarify the matter. Further, I do not find any error in the conclusion of both Courts below that the mandate of the Sikkim State Rules, Registration of Document, 1930 have not been complied with. The Sikkim State Rules, Registration of Document, 1930 at Rule 10 lays down that;
"10. All interlineations, erasures or alterations appearing in the document must be attested by the RSA No.02 of 2016 13 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another parties to it with their signatures before the said documents could be accepted for registration."
Clearly, this has not been complied with in Exhibit D-1-1 and there are no signatures of the parties after the alterations were made, raising a doubt about the motive of such alterations, the records being devoid of any details in this context. The Appellant, in his evidence, has admitted that he is unaware as to who made the fresh insertions pertaining to the Plot Number and area of the Suit land after deleting the original insertions. The argument of the Appellant that the said Rules would not apply to cases which have already been accepted for registration is not tenable, nor backed by any legislation.
20. We may pertinently refer to Exhibit 5, which is a Notice dated 19.12.1978, issued by the Registrar, West District, Gyalshing, giving Notice to all concerned that Til Bahadur Limboo of Tharpu Block was selling his land bearing Plot No.250 measuring 0.15 decimals situated at Tharpu Block to Phip Raj Limboo of the same place for Rs.2600/- (Rupees twenty-six hundred) only. This Notice dispels all doubts with regard to the measurement of the land in dispute, since Phip Raj Limboo evidently purchased 0.15 decimals from Til Bahadur Limboo and obviously he could not have sold an area more than what he had purchased. Besides, Exhibit 6, which is a Note-Sheet of the Sub Divisional Officer, Soreng Sub-Division, West Sikkim, is clear that the land sold out by Til Bahadur Limboo to Phip Raj Limboo was 0.15 decimals vide copy of Registration No. 84 dated 03.03.1979 in the old Land Records, before the general RSA No.02 of 2016 14 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another survey operation of 1981 commenced. The disputed land was resold to the Appellant by Phip Raj Limboo, vide copy of Registration Book No. A, Vol. No. II and Item No. 164 dated 19.12.1986, wherein an area of 0.15 decimals, dry land has been mentioned on the Sale Deed document, from the newly recorded Plot No. 329 pertaining to the disputed plot of land.
21. As Exhibit C-3 cannot be relied on, as a corollary the question of Exhibit C-4, vide which an area of 0.0700 hectares is purported to be mutated in the name of the Pro-forma Respondent from the Appellant is an unbelievable document. Although, it is submitted that Exhibits C-1 to C-2 are true copies of the „Khatiyan‟ but in the absence of explanation to the entries in Exhibit C-3, the two documents have to be taken with a pinch of salt. It was alleged that the Appellant was not at the spot during verification, a careful perusal of the evidence on record more especially of P.W.4, would reveal that no question was put to the witness on this count. Contrary to the allegation of the Appellant, it is also relevant to point out that the learned District Judge has in fact not considered the statement of the witnesses before the Sub-Divisional Magistrate, Paragraph 36 of his Judgment would stand testimony to this. The said Paragraph reads as;
"36. However, I agree with Learned Counsel for the appellant that it was not proper for the Learned trial Court to rely in the statement of PW-2 (Dhan Maya Subba) and 3 (Bhim Bahadur Nimbang), reportedly made before the Sub-Divisional Magistrate, Soreng.
As the statement of PW-2 and PW-3 were not tested under cross-examination and as the plaintiff had dropped the said witnesses (vide Order dated 17.05.2012), Learned trial Court should not have relied in their statement (marked Exhibit-14 and Exhibit-15) respectively. Nevertheless, as it is clear RSA No.02 of 2016 15 Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another that the area of land sold by the plaintiff's father to Phip Raj Limboo was 0.15 acre or 0.060 hectare, I do not find that dropping PW-2 and PW-3 by the plaintiff would cause any impact in the merits of the case."
22. The findings of the learned Appellate Court that the Appellant has not been able to make out a case for adverse possession, suffers from no infirmity. The Appellant‟s claim on the Suit property is based on title, on the basis of documents as already discussed. The concept of adverse possession is in opposition to a claim under title, the two claims cannot either be parallel or simultaneous.
23. With regard to the records of 1951 not being valid, we may peruse Notification No. 991/D.D.L.R. dated 17th January, 1984, which reads as follows;
"...................................................................................................
................It is hereby notified for the information of general public that the old Land Records of 1951 which was in existence in the state of Sikkim shall cease to be in operation and new Land Record shall come into force with immediate effect.
..................................................................................................."
The Land Records prior to 1984, was in acres and subsequently on converting the measurements to hectares, this Notification fell in place. However, it does not mean that the Land Records of 1951 have been shut out for the purposes of corroborating the possession of property held by different individuals, the subsequent records can be verified from the 1951 Land Records.
RSA No.02 of 2016 16
Shri K. B. Bhandari vs. Shri Laxuman Limboo and Another
24. Keeping in view the aforesaid facts and discussions, no other conclusion emerges, save that, the Judgment of the First Appellate Court has not ignored the material evidence on record. I, therefore, find no reason to hold differently from the findings of the learned Trial Court and the First Appellate Court, finding no infirmity therein.
25. Appeal dismissed.
26. No order as to costs.
27. Copy of this Judgment be sent to the Court of the learned District Judge, East Sikkim at Gangtok.
28. Records be remitted forthwith.
Sd/-
( Meenakshi Madan Rai ) Judge 12.07.2017 Approved for reporting :Yes Internet :Yes bp