Tenzing Namgyal & Ors Vs. Motilal Lakhotia & Ors  Insc 56 (5 February 2003)
S.B. Sinha & Ar. Lakshmanan S.B. Sinha, J :
appellants herein are successors in interest of late Chogyal Sir Tashi Namgyal
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 :
of possession of the encroached portion of the land shown in the annexed plan
if required, by demolishing the construction made thereon;
injunction restraining the defendants from using the aforesaid 12 feet wide
passage or making any construction whatsoever over the same;
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;
of the suit;
other relief or reliefs to which the plaintiff may be found entitled to under
law and equity.
stated, the said suit was filed on the following allegations :
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.
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.
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.
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.
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.
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.
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.
appellants are before us in appeal questioning the correctness or otherwise of
the said judgment.
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.
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 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.
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
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 SCC 426].
Plaintiffs' predecessor in interest was late Chogyal Sir Tashi Namgyal of Sikkim. There is, therefore, no question
of plaintiffs' having any document of title.
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.
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.
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.
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.
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.
therefore, may proceed on the assumption that the said finding of the High
Court is incorrect.
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.
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
371 F(h) of the Constitution of India reads thus:
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
this connection, it will be relevant to notice the following important
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
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
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
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
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
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 encroachment on Private
Estate: Only complaint is that construction was being made not according to
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
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.
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 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.
High Court in its judgment also took into consideration the report of the
Second Advocate Commissioner and relied thereupon.
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.
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:
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".
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.
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.
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.
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.
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.
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
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.
ordinarily records of right cannot be treated to have any evidentiary value on
the question of title inasmuch as such records are prepared mainly based on
entries in the Khasra (Exhibit P-36) must, therefore, be construed keeping the
aforementioned principles of law in view.
Ram Bhau Patil (supra), this Court held :
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.
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
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.
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 (supra)].
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.