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2001 DIGILAW 8 (SIK)

TSHERLNG LAMA v. KUL BAHADUR CHHETRL

2001-03-20

ANUP DEB, RIPUSUDAN DAYAL

body2001
ANUP DEB, J. ( 1 ) THIS first appeal, filed by the appellant, Tshering Lama, defendant no. 1 in the Court below, is directed against the judgment and decree passed by the Id. District Judge, Special Division, Sikkim at gangtok, in Civil Suit No. 15 of 1999, decreeing the suit, brought by the plaintiff Kul bahadur Chhrtri, respondent No. 1 in this appeal, for declaration of right, title and interest over the landed property covered by old plot nos. 101 and 102 of 1950-52 Survey Operation corresponding to Plot No. 106 of 1978-80 Survey Operation situated at Chumbong block, West Sikkim (in short suit property), in favour of the plaintiff-respondent No. 1 and against the appellant-defendant No. 1, for recovery of possession thereof, for correction of record of rights in respect of plot No. 101 of 1950-52 Survey Operation and for a permanent injunction restraining the appellant-defendant from entering into and interfering with the peaceful possession of the plaintiff-respondant No. 1 after evicting the appellant-defendant No. 1 therefrom. ( 2 ) THE plaintiff-respondent No. 1 filed civil Suit No. 21 of 1991 on 21st December 1991 in the Court of the Id. District Judge, sikkim against the appellant as defendant No. 1 and one Hasta Bahadur Chhetri, brother of plaintiff, who was impleaded as proforma defendant. Thereafter the Civil Suit was transferred from one Court to another and ultimately the Civil Suit was transferred to the Court of id. District Judge, Special Division at Gangtok. The aforesaid Civil Suit No. 21 of 1991 was renumbered from time to time and lastly numbered as Civil Suit No. 15 of 1999. ( 3 ) THE case of the plaintiff-respondent No. 1, Kul Bahadur Chhetri (in short respondent no. 1), as made out in the plaint, is that late chandra Bahadur Chhetri, father of the respondent No. 1 and proforma respondent was the absolute owner of the suit property and after death of their father, respondent No. 1, proforma respondent and their mother inherited the entire moveable and immovable properties and they started enjoying the same. During the 1950-52 Survey Operation, the suit property was recorded in the name of Chandra bahadur Chhetri, since deceased, father of the respondents. During the 1950-52 Survey Operation, the suit property was recorded in the name of Chandra bahadur Chhetri, since deceased, father of the respondents. While the respondents have been enjoying the suit property, left behind by their father, peacefully and without any interruption till 1987, in the last week of December 1987, the appellant, all on a sudden started claiming the suit property as his own property and entered into the suit property during that period. Mother of the respondents being an old widow and the respondent No. 1 being a rustic villager and proforma respondent being an armed police constable posted at Pangthang, East sikkim, could not offer resistance against the illegal acts of the appellant. The respondent no. 1 immediately rushed to Gangtok to inform the proforma respondent about the illegal acts of the appellant. The proforma respondent accordingly went to the appellant and asked him as to why he had started claiming the suit property as his own and entered into the suit property and the appellant informed that he is the absolute owner of the suit property. The matter was reported to the District collector, West Sikkim, who immediately transferred the matter to the court of Judicial Magistrate, West at Gyalshing, who came to the conclusion that the disputes involved are of civil nature and the respondents should approach civil Court for remedy. The respondent No. 1 prayed for a decree for declaration of right, title and interest over the suit property, recovery of possession of the suit property after evicting the appellant-defendant, damages amounting to Rs. 21,000/- being the damages from 1978 to 1991, mesne profits, correction of record of right in respect of old plot no. 101, a decree for a permanent injunction restraining the appellant from entering into and interfering with the peaceful possession of the respondent No. 1 after evicting the appellant therefrom. ( 4 ) THE appellant-defendant. No. 1 filed written statement and denied the averments of the respondent No. 1 made in the plaint. The respondent No. 1 and proforma respondent had never been in possession of suit property during last 12 years prior to filing of the suit, and thus the suit is barred by law of limitation. ( 4 ) THE appellant-defendant. No. 1 filed written statement and denied the averments of the respondent No. 1 made in the plaint. The respondent No. 1 and proforma respondent had never been in possession of suit property during last 12 years prior to filing of the suit, and thus the suit is barred by law of limitation. The respondent No. 1 and proforma respondent had earlier filed Civil Suit No. 14 of 1990 against the appellant in the Court of the Civil Judge, West Sikkim at Gyalshing and as the said Civil Suit having been under valued, the Id. , Civil Judge returned the plaint to be presented before proper forum, but instead of complying with the aforesaid direction, the respondent No. 1 filed Civil Suit No. 21 of 1991 in the Court of the District judge, Sikkim, gangtok and the co-plaintiff in the Civil Suit no. 14 of 1990 was impleaded as proforma defendant to avoid the payment of Court Fees. The proforma defendant being a Government employee had the means to pay the Court Fees. Neither the respondents- nor their father had been the owner of the suit property covered by old pjot Nos. 101 and 102 recorded during 1950-52 Survey Operation and father of the appellant late Pagay Bhutia was the absolute owner of the suit property and after his death, the appellant became absolute owener thereof. The appellant submitted that the suit is barred by law of limitation, principles of estoppel, waiver, acquisance and mat a fides and is false, frivolous, baseless and the respondent No. 1 did not disclose any cause of action and he had no right and locus stand! to file this suit. ( 5 ) THE Id. District Judge (South and West)framed the issues on 18th September 1996. However, issues have not been framed regarding damages amounting to Rs. 21. 000/- from 1978 to 1991 and for mesne profits. ( 6 ) THE Id. District Judge (East and North)heard on the maintainability of the suit as preliminary issue on the ground that plaint as returned by the Id. Civil Judge, Gyalshing was not filed before the Court of Id. District Judge. Ld. Counsel for the appellant did not press this preliminary issue and the matter was taken up for hearing on the question of Court Fees. Vide order dated 20th February 1999, the Id. Civil Judge, Gyalshing was not filed before the Court of Id. District Judge. Ld. Counsel for the appellant did not press this preliminary issue and the matter was taken up for hearing on the question of Court Fees. Vide order dated 20th February 1999, the Id. District Judge (East and North) exempted the plaintiff-respondent No. 1 from payment of court Fees as his income was not more than rs. 10,000/ -. The case was registered in the file of District Judge (South and West) on transfer and lastly the case file was transferred to the Court of Id. District Judge, Special Division who recorded evidence and after recording evidence, Id. District Judge, special Division decided the issues that the respondent No. 1 is the owner of the suit property, is entitled to recover possession of the suit property, the suit is not barred by law of limitation, the appellant had not perfected his right,. title and interest over the suit land by adverse possession and decreed the suit accordingly. ( 7 ) MR. A. K. Upadhyaya, learned Advocate appearing on behalf of the appellant submitted that the suit filed by the respondent No. 1 was based on his alleged title and the appellant has been in possession of the suit property. Since the suit of the respondent No. 1 is based on title and not on possession, the burden to prove the title lies on respondent No. 1 and the burden cannot be shifted upon the appellant. He has also submitted that the appellant has proved that his father has been in possession of the suit property since 1931 through documentary evidence, which is the certificate issued by the Pemayangtse Monastery under whose administrative control the suit property situates. He has further submitted that the appellant proved the possession of his father since 1931 and his own possession since 1950 through oral evidence. Mr. Upadhyaya further submitted that long possession is presumption of ownership, although there may not be documentary proof of his title and possession is 9/10th point of law, which is in favour of the appellant and since the appellant is admittedly in possession, the respondent No. 1 has not only to prove his title but also to prove that he was dispossessed by the appellant within twelve yeafs from the date of filing of this suit, which the respondent No. 1 has miserably failed. He further submitted that the respondent No. 1 has not been able to submit any document of title, namely, sale deed, gift deed etc, pertaining to the suit property. Mr. Upadhyaya strenuously argued that in the remarks column of the Parcha Khatian, Exhibit p-2, it has been shown that the suit property was occupied by the appellant. Mr. Upadhyaya argued that the Exhibit P-l, which is a Parcha khatian of Survey Operation 1950-52 in favour of father of the respondent No. 1 and the Exhibit P-3 which is the connected Map of the Exhibit P-l cannot be said to be evidence of title of the respondent No, 1 over the suit property and an entry in the record of rights is not foundation of title, but is mere piece of evidence. The entry in the records of rights does not dispense with proof of title. Mr. Upadhyaya also referred to Exhibit P-4, which is a land revenue receipt filed by the respondent No. 1 and submits that this land revenue receipt Exhibit P-4 does not specify the suit property and therefore cannot be connected with the suit property at all. He further submits that land revenue receipts do not fpso-facto prove actual possession of the land in favour of the holder of the receipts. According to Mr. Upadhyaya, land revenue is not required to be paid for cardamom field. Exhibit P-l is a parcha Khatian of 1952-53 Survey operation in which the plots of lands shown were not cardamom field, but paddy field and dry field and as such land revenue was to be paid for these types of plots of land. Exhibit P-2 is a parcha Khatian in respect of lands recorded in the name of respondent No. 1 as owner in survey settlement of 1978-80 and Exhibit D-2 is a Parcha Khatian in respect of land recorded in favour of the appellant in Survey Operation 1978-80. He has submitted that both these exhibits P-2 and EX2 do not contain the amount of land revenue to be paid as the aforesaid lands have been converted into cardamom field by the appellant in the year 1950. He has submitted that both these exhibits P-2 and EX2 do not contain the amount of land revenue to be paid as the aforesaid lands have been converted into cardamom field by the appellant in the year 1950. Thus, according to him, the appellant clearly established that he converted the suit property into a cardamom field and that no land revenue was to be paid for cardamom field and as such the appellant does not possess land revenue receipt for the suit property. Mr. Upadhyaya then argued that respondent No. 1 has miserabley failed to prove his title and the fact of his dispossession by the appellant in the year 1987 the respondent No. 1 has also failed to prove that they were ever in possession of the suit property. Mr. Upadhyaya submits that the story of the respondent No. 1 that he was dispossessed in the year 1987 by the appellant is highly improbable and not correct. In this regard, mr. Upadhyaya relies upon the admission of the respondent no. 1 in his cross-examination, which is as follows :-". . . . . IT is true that I did not report about the alleged illegal entry of the defendant into the suit land to any authority concerned including the Panchayat, the revenue authorities and the District collectorate and also the Judicial or Civil court. . . . . "according to Mr. Upadhyaya, the respondent no. 1 failed to prove his possession over the suit property and he instituted the Civil Suit long after expiry of twelve years of possession of the suit property by the appellant and therefore the suit of the respondent No. 1 is clearly barred by law of limitation and liable to be dismissed. ( 8 ) MR. B. Sharma, Id. Advocate appearing on behalf of the respondent No. 1 submits that there is no infirmity in the judgment of the trial Court and the trial Court on appreciation of the facts and evidence on record passed the decree. The respondent No. 2 adopted the submissions made by Mr. Sharma. ( 9 ) IT is an admitted position that neither the appellant nor the respondent No. 1 produced any document of title in support of their respective case. The respondent No. 2 adopted the submissions made by Mr. Sharma. ( 9 ) IT is an admitted position that neither the appellant nor the respondent No. 1 produced any document of title in support of their respective case. The appellant extensively relied upon the exhibit D-1 which is a certificate issued by one Dug Tensing Lama of pemayangtse Monastery which shows that as per the Survey Settlement of 1931, Plot No. 107 (Chupay Chri), was a paddy field with seedling of "4 pathi" and "4mana" belonging to pagay Bhutia, a resident of Chumbong but no parcha Khatain in support of the Survey Settlement of 1931 and revenue receipts were produced by the appellant. The appellant stated in his evidence that the exhibit D-l is the certificate issued by the Pemayangtse Monastery certifiuing that the suit property belonged to his fathe late Pagay Bhutia at the time of the survey settlement of 1931 and the suit property was numbered as Plot No. 107. This certificate does not bear any date and has not been proved by any witness from the Monastery. The Id. counsel for the appellant could not show how the certificate is admissible in evidence. Exhibit D-1 cannot be accepted as a proof of title. It is also not a document to show possession of the appellant or his father in the suit property. In paragraph 20 of the written statement, the appellant-defendant categorically stated that late father of the plaintiff-respondent No. 1 Chandra Bahadur Chhetri, in the Survery and Settlement Operation of 1950-52, surreptitiously got the suit property surveyed in his name. But the appellant did not raise any objection and take any action. Exhibit P-1 is the Parcha Khatian in respect of several plots of land including plot Nos. 101 and 102, standing in the name of father of the respondent No. 1, being recorded, and exhibit P-3 is a Survey Operation Map of 1952-53 which shows the name of father of the respondent No. 1 recorded as the owner of the suit property. In 1950-52 Survey Operation lands were used to be shown in acreage whereas in 1978-80 Survey Operation lands have been shown in hectares. Exhibit P-l and p-3 show that Plot Nos. 101 and 102 which are the subject matter of the suit were recorded in the name of late father of the respondents as the owner. In 1950-52 Survey Operation lands were used to be shown in acreage whereas in 1978-80 Survey Operation lands have been shown in hectares. Exhibit P-l and p-3 show that Plot Nos. 101 and 102 which are the subject matter of the suit were recorded in the name of late father of the respondents as the owner. The plain tiff-respondent No. 1 in his evidence stated that the suit property i. e. plot Nos. 101 and 102 have been converted as plot No. 106 as per 1980-82 survey operation. In cross-exahiination also, the plaintiff-respondent stated that old plot Nos. 101 and 102 were converted into a single plot No. 106 in the new survey operation. The statement of the appellant that the plot No. 107 of survey Operation of 1931 was recorded as 101 and 102 during the Survey Operation of 1950-52, cannot be accepted as true as the d. W. 2 stated in cross-examination, that, it is true that the system ofputting plot number in the Khatian Parcha started and was introduced from 1950-51 Survey Operation only and therefore, plot No. 107 as shown in Exhibit d-1 cannot be accepted. The appellant in his cross-examination admitted that he does not know the plot numbers of the property as per new Survey Operation 1980-81, claimed by the plaintiff-respondent. D. W. 2 in his cross-examination stated that he did not know whether the present suit property is recorded in the name of plaintiff-respondent No. 1 as per 1950-52 Survey Operation and in the name of the plaintiff during the 1980-82 survey Operation. . One Nadong Bhutia, D. W. 3 in cross examination stated that it is true that he cannot say as to who was in possession of old Plot nos. 101 and 102 as per 1950-52 Survey operation till the year 1987. The said witness of the appellant also stated that he does not know if the appellant forcibly entered into the suit property in the year 1987. He has also admitted that it is true that the respondents and their father were enjoying the suit property till the year 1987. The appellant has not made out the case for adverse possession and the essential ingredients of adverse possession are not satisfied from his pleadings in the written statement. In the Parcha Khatian, Exhibit p-2, the appellant was shown to be in occupation but nature of possession has not been shown. The appellant has not made out the case for adverse possession and the essential ingredients of adverse possession are not satisfied from his pleadings in the written statement. In the Parcha Khatian, Exhibit p-2, the appellant was shown to be in occupation but nature of possession has not been shown. It may be that the respondents had been possessing the suit property through the appellant in as much as the name of the respondent No. 1 has been recorded as the owner in the Exhibit P-2. Therefore, the argument of Mr. Upadhyaya cannot be accepted. The appellant failed to prove that his father was in possession of the suit property from 1931. He also failed to prove that he had been in possession of the suit'property from 1950. Exhibit D-2 which is the Parcha Khatian of the appellant during Survey Operation 1978-80/ 80-82 revealed a number of plots in respect whereof the appellant was recorded as the owner, but plot No. 106 or part of plot No. 106 was not included in Exhibit D-2 whereas in Exhibit P-2 which is Khatian Parcha of the respondent No. 1 during Survey Operation 1978-80/80-82 revealed that the name of respondent No. 1 has been recorded as the owner in respect of the suit property. Respondent No. 1 has also proved Exhibit P-1 and P-3 which are the Parcha Khatian of 1950-52 survey Operation and the connected map in which the name of the father of the respondents was recorded as the owner in respect of the suit property and the appellant could not prove his ownership. ( 10 ) AFTER hearing the arguments of the learned counsel and going through the materials on record, we are entirely in agreement with the judgment and decree passed by the id. District Judge, Special Division, and there is no reason for interfering with the judgment and decree passed by the Id. District Judge, special Division. ( 11 ) IN the result, the appeal is dismissed with cost in both the Courts. Counsel fee in each Court is assessed at Rs. 2000/ -. Appeal dismissed. --- *** --- .