THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Appellate Jurisdiction)

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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

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RFA No.09 of 2020

Appellants : The Divisional Forest Officer (T),

Department of Forest, Environment and

Wildlife Management and Others

versus

Respondent : Ashok Tshering Bhutia

Appeal under Order XLI Rules 1 and 2

of the Code of Civil Procedure, 1908

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Appearance

Mr. Aarohi Bhalla, Additional Advocate General and Mr. Thinlay

Dorjee Bhutia, Government Advocate for the Appellants with Ms.

Rita Sharma, Government Advocate (Forest and Environment

Department) and Ms. Norzila Tamang, Legal Officer (Forest and

Environment Department).

Mr. T. B. Thapa, Senior Advocate with Mr. Ranjan Chettri and Mr.

Khem Raj Sapkota, Advocates for the Respondent.

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Date of hearing : 01-04-2026

Judgment reserved : 01-04-2026

Judgment pronounced & uploaded : 15-05-2026

JUDGMENT

Meenakshi Madan Rai, J.

1. The questions that this Court is called upon to determine

in this Appeal are;

(i) Whether the land claimed by the Respondent, bearing

Plot Nos.311, 312 and 313 measuring a total area of

1.7560 hectares belongs to him;

(ii) Whether the Appellant No.1 and the Appellant No.2 have

established that, the land claimed by the Respondent

vide the aforementioned documents is in fact reserved

forest and has been encroached upon by the

Respondent?

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

2. Before the Court of the Learned District Judge, South

Sikkim, Namchi, the Appellant No.1 was the Defendant No.1 [The

Divisional Forest Officer (T), Department of Forest, Environment and

Wildlife Management];

The Appellant No.2 was the Defendant No.2 [The PCE-cum-

Secretary, Department of Forest, Environment & Wildlife

Management];

The Appellant No.3 was the Defendant No.3 [The Secretary,

Energy and Power Department, Government of Sikkim] ;

The Appellant No.4 was the Defendant No.4 [The Sub-

Registrar/SDM, Office of the District Collectorate, Namchi]; and

The Respondent was the Plaintiff. To prevent obfuscation the

parties shall hereinafter be referred to as per their litigative status

before this Court.

3. In order to arrive at a finding, on the two questions

settled for determination hereinabove, it is necessary to delve,

briefly into the facts of the Respondent’s case.

(i) The Respondent filed a suit for declaration, injunction

and other consequential reliefs before the Court of the Learned

District Judge, South Sikkim, Namchi, claiming to have purchased

three plots of land, being plot no.311 measuring 0.5960 hectares,

plot no.312 measuring 0.0460 hectares and plot no.313 measuring

1.1140 hectares, viz., a total area of 1.7560 hectares/4.33 acres, at

Samardung, District Namchi, Sikkim, from one Jhumki Doma Bhutia,

on 09-10-2012. Consequent upon necessary verification, the lands

were registered in his name on 17-01-2013, which he then

demarcated and fenced. It is claimed that his ownership of the

land’s was fortified by a letter dated 01-12-2016, addressed to the

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

Appellant No.3, by the Appellant No.4, informing that, land

measuring 1.7560 hectares , vide khatiyan No.116, was found

recorded in the Respondent’s name. Exbt 21, dated 08-12-2012

and Exbt 23, dated 27-05-2015 ―No Objection Certificates‖, issued

by the Department of the Appellant No.1 and Appellant No.2 further

certified respectively that, the land claimed by the Respondent was

not forest land nor was there encroachment into forest land by the

Respondent.

(ii) In 2016, the Respondent’s land was identified by

Appellant No.3, for construction of a 66 KV Sub-Station, for M/s.

Power Grid Corporation of India, Limited. To avoid cost overrun the

Project was to be taken up on priority and completed by December,

2018. The rate for acquisition of the Respondent’s property was

fixed at ₹ 490/- sq.ft.

(iii) Following the above development, the Appellant No.3

sought for a ―No objection Certificate‖ (NOC), from the Appellant

No.1, as per the land survey records of 1951-52 and 1979-80, vide

his letter, dated 09-05-2017. It is the Respondent’s case that, the

Land Revenue Department on 17-01-1984 had already notified that,

the land records of 1951 would cease to be in operation and that the

land records of 1979-80 would come into force with immediate

effect.

(iv) Pursuant thereto, the Appellant No.1 issued letter dated

30-06-2017 (Exbt-12) informing the Respondent that, as per the

joint inspection carried out on 21-10-2016, by the Forest

Department, Land Revenue and Disaster Management Department

(LR&DMD) and Energy and Power Department, in the presence of

the land owners, it was found that out of a total area of 4.33 acres

RFA No.09 of 2020 4

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

registered in the Respondent’s name , an area of 3.23 acres was

forest land, which had been encroached upon by the Respondent

and required immediate eviction, this, despite Exbt 21 and Exbt 23

(supra) having been issued earlier, clarifying that the suit land did

not fall within forest land.

(v) The Respondent consequently, issued a Legal Notice

dated 29-07-2017 (Exbt-13), to the Appellant No.1, requiring the

Appellant No.1 to inter alia recall the Notice dated 30-06-2017,

alleging that, the contents of the notice were false and no joint

inspection had been carried out on 21-10-2016. It was averred that

prior to the purchase of the suit land by the Respondent, the

previous three owners had the relevant documentation pertaining to

their ownership of the suit land and so did the Respondent who

obtained it from Appellant No.4 as per the applicable rules and

procedure. It was also averred that, the acts of the Appellants No.1

and 2 and their allegation of ownership of the land had caused

financial loss to the Respondent.

(vi) The Respondent sought inter alia for a declaration that,

he is the absolute owner of the entire suit land and a permanent

injunction, restraining the Appellant No.3 from purchasing/acquiring

another land for construction of the Project for which the

Respondent’s land was identified. The Schedule to the Plaint details

the suit land as having an area of 4.3391 acres and delineates the

boundaries thereto.

4. All the Appellants denied the claims of the Respondent.

(i) The Appellants No.1 and 2 filed a joint W ritten

Statement and averred that the Department relies on the cadastral

survey record of 1950-52 for the purposes of authentication of any

RFA No.09 of 2020 5

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

land record. Land recorded as ―forest land‖ in the survey of 1950-

52 is deemed to be forest land. That, an area of 3.23 acres was

found to be recorded in excess, as the 1950-52 survey operations

recorded 1.10 acres in the name of Hari Krishna Sharma, son of

Bishnu Prasad Sharma the original owner, but in the cadastral

survey of 1979-80 it had increased to 4.33 acres and was found

recorded in the name of Bishnu Prasad Sharma. The topographical

Map prepared by the Survey of India reflect s the boundaries of

Tsalumthang reserved forest, of which part and parcel falls within

the suit land.

(ii) In their Counter Claim, the Appellants No.1 and 2,

claimed to be exclusive owners of the suit land as further

established by the joint inspection and sought a declaration that

they are the absolute owners of the excess area of 3.23 acres of

land. That, the Respondent is liable to be evicted from the suit land.

5. The Appellant No.3 in his Written Statement averred

that on 09-05-2017, the Appellant No.1 was communicated of the

proposal of the Appellant No.3 to acquire the Respondent’s land for

the said Power Project. The Appellant No.1 was requested to issue

NOC, instead of which the Appellant No.3 was informed of the Notice

dated 30-06-2017, issued by the Appellant No.1 to the Respondent

demanding eviction of the Respondent from the suit land. As the

Project was time bound, another plot of land was identified by

Appellant No.3 instead of the Respondent’s land and the costs of

acquisition settled. No cause of action thus arises against the

Appellant No.3 in the present Suit.

6. In the Written Statement of Appellant No.4, it was

averred that, the Sale Deed dated 09 -10-2012 was executed

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

between Jhumki Doma Bhutia and the Respondent and the sale deed

registered based on the records maintained in the office of the

Appellant No.4, which found support from the NOC bearing Ref.

No.52/F(T)S, dated 08-12-2012, Exbt 21 issued by the Appellant

No.1 certifying that the lands in question being Plot nos.311, 312

and 313 pertaining to Smt. Jhumki Doma Bhutia were verified and

did not fall within the forest land. Appellant No.4 also obtained NOC

from the contiguous boundary holders before registration and

mutation in the Respondent’s name with emphasis placed on the

NOC (supra) issued by the Appellant No.1 as the Forest Department

holds boundaries contiguous to the suit land.

7. On the basis of the pleadings of the parties, the Learned

District Judge, Namchi, South Sikkim, in Title Suit No.02 of 2017

(Ashok Tshering Bhutia vs. The Divisional Forest Officer (T) and

Others), framed eight Issues, for determination as detailed

hereinafter.

8. To prove his case, the Respondent initially examined

himself as PW-1 and two witnesses, namely, Rishi Raj Pradhan as

PW-2 and Munna Kumar Pradhan as PW -3. The Appellants No.1 and

2 examined Peggyla Tshering Venchungpa as DW-1 and Ashish

Gurung as DW-2. The Appellant No.3 examined Krishna Kumar

Pradhan as DW-3. The Appellant No.4 did not examine any witness.

9. The Issues that were settled and determined by the

Learned Trial Court, after extensive examination of the evidence

furnished and analysis thereof, as follows;

(i) Issue No.1

Whether the present suit is maintainable in its present

form or not? (Onus on Plaintiff)

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

The suit of the Plaintiff was found maintainable by the

Learned Trial Court.

(ii) Issue No.2

Whether the Defendants No.1, 2 and 3 are liable to pay

the compensation to the Plaintiff? (Onus on Plaintiff)

It was found that the Plaintiff had failed to produce any

document to indicate that he had suffered financial loss due to

non-registration of the portion of the suit land in favour of the

Defendant No.3 for construction of 66 KV Sub-Station. The

Issue was decided against the Plaintiff.

(iii) Issue No.3

Whether the suit is barred by law of limitation? (Onus

on Defendants)

The Learned Trial Court was of the view that the suit

was not barred by the limitation.

(iv) Issue No.4

Whether the excess land/area of 3.23 acres is a reserved

forest land as per the cadastral survey record of 1950-52 and

whether the Plaintiff is in possession of the said excess land?

(Onus on Defendants)

After considering the evidence and documents on record,

the Trial Court was of the view that although Defendants No.1

and 2 claimed that the portion of the suit land 3.23 acres was

reserved forest but they failed to prove its ownership or that

the portion of the suit land falls under the reserved forest.

The Defendants No.1 had issued Exbt 21 the NOC during the

process of registration of suit land in favour of the Respondent

stating that the suit land did not fall within the forest land and

Exbt 21 was corroborated by Exbt 20, spot verification report

RFA No.09 of 2020 8

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

dated 23-04-2010 and Exbt 23. That, the Government

Gazette Notification dated 29-11-1983 also notified that the

old land records of 1951 shall cease to be in operation and the

new land records would come into force. It was thus proved

that, the Plaintiff was the absolute owner of the suit land and

the Defendants No.1 and 2 had failed to prove their ownership

over the lands or that the portion of the suit land fell under the

reserved forest.

(v) Issue No.5

Whether the suit of the Plaintiff grossly suffers from mis-

joinder and non-joinder of necessary party? (Onus on

Defendants)

The Learned Trial Court was of the view that even

without impleading the Land Revenue and Disaster

Management Department, Government of Sikkim or the seller

Jhumki Doma Bhutia, the relevant documents pertaining to the

sale transactions were available in the case records for proper

adjudication of the matter, to enable the Court to arrive at a

proper finding, hence Issue no.5 was decided against the

Defendants.

(vi) Issue No.6

Whether forest land can be transferred, alienated or de-

reserved in terms of the Forest Conservation Act, 1980 ,

without prior approval of the Central Government? (Onus on

Defendant No.1 and 2)

The Learned Trial Court was of the view that any activity

which was prima facie in violation of the provisions of the

Forest Conservation Act, 1980, is impermissible without the

RFA No.09 of 2020 9

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

prior approval of the Central Government and every State

Government is to promptly ensure total cessation of all such

activities forthwith. The issue was decided in favour of

Defendants No.1 and 2.

(vii) Issue No.7

Whether the Defendant No.1 had the right/authority to

issue letter bearing reference No.369/DFO(T)/S, dated 30-06-

2017 and if so, whether it was issued bona fide or with ulterior

motive? (Onus on Plaintiff)

The Trial Court was of the considered view that the

Defendant No.1 had no right to issue letter bearing Ref.

no.369/DFO(T)/S, dated 30-06-2017, to the Plaintiff.

(viii) Issue No.8

Whether the Plaintiff is entitled for any other relief or

reliefs?

In this issue the Learned Trial Court concluded as

follows;

“………………………… Plaintiff is declared as absolute

owner of the suit land i.e. plot Nos. 311, 312 and 313

measuring an area of 0.5960 hectares, 0.0460 hectares

and 01.1140 hectares (total area 1.7560 hectares) at

Samardung falling under Burul Block, South Sikkim and

Defendant No.1 had no right to issue letter bearing

reference No.369/DFO(T)/S dated 30.06.2017 ( Exhibit-

12) to Plaintiff and accordingly said letter (Exhibit-12)

is hereby declared null and void and the Counter-Claim

filed by the Defendant No.1 & 2 against Plaintiff is also

dismissed.”

RFA No.09 of 2020 10

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

10. Aggrieved thereof, the Appellants were before this Court

assailing the Judgment dated 24-12-2019, in Title Suit No.02 of

2017 (Ashok Tshering Bhutia vs. Divisional Forest Officer (T) and Others).

Upon hearing the parties, a Single Bench of this High Court

(comprising of Bhaskar Raj Pradhan, J. ) after considering the

evidence on record and the findings of the Learned Trial Court, vide

detailed Order, dated 12-04-2022, observed in Paragraph 20, as

follows;

“20. Resultantly, this court deems it fit and proper to

invoke the provisions of Order XLI Rule 25 of the CPC

and frame the following issues for trial:-

(i) Whether the suit land was originally

numbered as plot no. 170/171 as

per the cadastral survey of 1950-52

and measured only 1.10 acres?

(onus on the defendant nos. 1 and

2)

(ii) Whether the same plot no. 170/171

as per the Cadastral Survey of

1950-52 was renumbered as plot

no. 311/312/313 as per the

Cadastral Survey of the year 1979-

80 and recorded in the name of

Bishnu Prasad Sharma, father of

Hari Krishna Sharma, reflecting a

total area of 4.33 acres with excess

area of 3.23 acres of forest land

included therein? (Onus on the

defendant nos. 1 and 2)

(iii) Whether the subsequent transfers

of the suit land initially from Bishnu

Prasad Sharma to the extent of the

excess 3.23 acres, as claimed,

could all be rendered void? (onus on

the defendant nos. 1 and 2);”

(i) The Learned Trial Court was ordered to take additional

evidence, if required, and return the evidence to this Court together

with its findings and reasons, within a period of six months from the

date of the first appearance of the parties. It was clarified that as

the Appeal was not finally decided, the observations made in the

Order were solely for the purpose of the said Order.

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

11. The Learned Trial Court in compliance thereto, recorded

the evidence of four additional witnesses (jointly) of the Appellants

No.1 to 4 and four additional witnesses of the Respondent.

Consequent thereto, vide the impugned Order, dated 30-09-2023, in

the same Title Suit No.02 of 2017, the Issues (supra) were taken up

and having duly considered the evidence of the witnesses, the Trial

Court concluded in Paragraphs 10 and 11 as under;

“10. From the evidence of the witnesses, especially of

Shri Hari Kumar Sharma, son of Bishnu Prasad

Sharma, it is presumed that the suit land was originally

numbered as 170/171 as per cadastral survey of 1950-

52, but was wrongly recorded in his name (Hari Krishna

Sharma) as he was a minor then. It is also presumed

that the same plot was renumbered as 311, 312 and

314 and the subsequent transfer of the suit land was

done following due process, and also in view of the

NOC, thus the same cannot be rendered void.

11. The Defendants could not prove any issues i.e.

issue no (i), (ii) and (iii) with cogent evidence. Thus,

the finding of this court in the aforesaid issues is that

the Defendants could not prove that there was an

excess area of 3.23 acres of forest land and that the

Defendants also could not prove any of the aforesaid

issues, for the reasons, as discussed above i.e. in view

of the evidence, so produced and discussed. ”

[emphasis supplied]

12. The ―Order‖, dated 30-09-2023, of the Learned Court of

the District Judge, Namchi, Sikkim, was taken on record by this

Court, vide Order, dated 18-10-2023.

RFA No.09 of 2020 12

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

(i) The matter appears to have been thereafter forwarded

for Mediation on 11-08-2025, but was returned unresolved and was

heard finally by this Bench.

13. Learned Additional Advocate General appearing for all

the Appellants contended that;

(i) The suit land has been described in the Written

Statement, filed by the Appellants No.1 and 2 wherein it has been

clarified that, plot numbers 170/171 measured 1.10 acres, as per

the 1950-52 cadastral survey records in the name of Hari Krishna

Sharma. The plot was re-numbered as 311, 312 and 313 in the

1979-80 survey operations but the area was recorded as 4.33 acres,

indicating an excess of 3.23 acres. That, the Joint Inspection

Report, Exbt D-1, (in three pages collectively) lends credence to this

fact. That, the excess land is reserved forest land which has been

encroached upon by the Respondent. Relying on a Map in Exbt D-1

it was contended that plot number 170/171 was contiguous to the

forest reserved land, which resulted in the encroachment. It was

urged that, when the original owners had only 1.10 acres of land, it

was the bounden duty of the Respondent to have checked the 1950-

52 records to verify whether the landed property being sold to him

in fact had belonged to the original owner.

(ii) That, in their Written Statements the Appellants have

clearly averred that the topographical Map bearing No.78 A/8/4

indicates the forest boundaries and was prepared by the Survey of

India. That, the total area of the Tsalumthang reserve forest as per

the topographical Map is shown to be 300 hectares and the total

boundary as per the 1950-52 records between the said reserved

RFA No.09 of 2020 13

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

forest area and 1.10 acres of adjacent private land, was duly

demarcated with boundary pillars in the year 2005.

(iii) Pausing here momentarily, it may be remarked here that

during the verbal submissions, the Learned Additional A dvocate

General sought to file an application under Order XLI Rule 27 of the

Code of Civil Procedure, 1908 (hereinafter, the ―CPC‖) to exhibit the

original topographical Sheet, but subsequently no such steps were

initiated.

(iv) It was urged that, no i ssue was framed for

determination with regard to the transaction between Bishnu Prasad

Sharma and his son Hari Krishna Sharma which was also an

observation made by this Court vide Order, dated 12-04-2022. A

specific plea had been raised by the Appellants both in the Written

Statement as well as in the Counter Claim in this context, but the

Respondent failed to file any Written Statement to the Counter

Claim and there was no finding on this aspect.

(v) It was contended that despite a direction from this

Court, vide Order dated 12 -04-2022, the Learned Trial Court

returned no findings on the additional Issues framed by this Court.

(vi) Stressing on the point that forest land cannot be

alienated or put to any other use, r eference was made to the

Judgment of the Supreme Court in T.N. Godavarman Thirumul kpad vs.

Union of India and Others

1

wherein the Supreme Court propounded

that the word ―forest‖ must be understood according to its

Dictionary meaning and also the term ―forest land‖ occurring in

Section 2 of the Forest Conservation Act, 1980, includes forest not

only as understood in the dictionary sense, but also any area

1

(1997) 2 SCC 267

RFA No.09 of 2020 14

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

recorded as ―forest‖ in the Government records irrespective of

ownership or classification thereof. Hence, the impugned Judgment

dated 24-12-2019 and the impugned Order dated 30-09-2023 both

deserve to be set aside.

14. Resisting the arguments advanced by Learned Additional

Advocate General for the Appellants No.1 to 4, Learned Senior

Counsel for the Respondent contended that;

(i) Contrary to the submissions of the Learned Additional

Advocate General, the Learned Trial Court has returned a finding on

each of the three additional Issues, as apparent from its Order dated

30-09-2023. At Paragraph 9(g) therein, it has been observed that,

the Appellants could not prove that the suit land as per the cadastral

survey of 1950-52 measured only 1.10 acres. That, the Appellants

failed to put forth any reliable evidence that, there was excess area

of 3.23 acres, said to be forest land, apart from Exbt D-1 (in three

pages collectively) which cannot be relied upon. It was further

observed by the Learned Trial Court that Hari Krishna Sharma

witness of the Respondent and original owner of the land, has

categorically admitted that the plot numbers bearing 170/171 as per

survey record of 1950-52 were renumbered as 311, 312 and 313 in

the 1979-80 survey operation and volunteered to state that the area

was more than 1.10 acres. He denied the entries made in Ext-D-

8(collectively) as he was aware that the said plot was bigger than

that reflected in Ext-D-8(collectively). The Respondent’s witness G.

B. Subba admitted that, there was no written documentation to

establish that Land Revenue Department does not have jurisdiction

over the Forest Department. That, the jurisdiction concerning the

RFA No.09 of 2020 15

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

forest lands are in accordance with the toposheet issued by the

Central Government.

(ii) Besides, the Appellants, if aggrieved by the impugned

Order of the Learned Trial Court, failed to file any objection to the

findings as required by Order XLI Rule 26 of the CPC.

(iii) Apart from this circumstance, the Appellants failed to file

any ownership documents of the Forest Department to buttress their

claim of ownership of the suit land or that it was recorded as

reserved forest and the witness of the Appellants No.1 and 2,

Peggyla Tshering Venchungpa as DW -1, has admitted as much.

(iv) That, although the Forest Department is basing their

claim on the topographical Sheet marked as ―Document-T‖, it is not

an original document, DW-1 has deposed as much. It is not an

Exhibit nor is it of 1950-52 vintage, but is that of 1979-80.

(v) The Trial Court observed that as the topographical Map

was not an original document, nor was it certified by any competent

authority, it held no probative value. This Order of the Learned Trial

Court has attained finality as it was never assailed.

(vi) It was also further canvassed that, although the original

records from the Land Revenue Department, were duly received

during the course of the trial from the Office of the District

Collectorate but the certified copies were not compared with the

original documents nor were the original documents exhibited,

leading to an adverse inference against the Appellants No.1 and 2.

(vii) The evidence on affidavit of the witness for the

Appellants No.1 to 4, K. B. Ghalay, a retired Divisional Forest Officer

of the Forest Department established that he had certified Exbt D-1

(in three pages collectively) including the Joint inspection report

RFA No.09 of 2020 16

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

dated 21-10-2016, but he was absent when the alleged inspection

took place. It was admitted by the witness that Exbt -D1

(collectively) was submitted to him after the inspection. The

witness also deposed that there are no conclusive records of the

lands of the Forest Department which in fact depended on the

compilation of the Land Revenue Department.

(viii) That, the NOC Exbt 21, dated 08-12-2012 was issued by

the Forest authorities certifying that the land bearing plot nos. 311,

312 and 313 pertaining to Jhumki Dom a Bhutia, did not fall within

the forest land. Exbt 23, NOC dated 27-05-2015 was also issued

by the Forest authorities certifying that the land bearing plot nos.

311, 312 and 313 pertaining to Ashok Tshering Bhutia did not fall

within the forest land. Exbt-22 is the mutation Order issued in the

name of Ashok Tshering Bhutia from the name of Jhumki Doma

Bhutia showing plot nos.311 measuring 0.5960 hectares, 312

measuring 0.0460 hectares and 313 measuring 1.1140 hectares.

This document itself established the authenticity of the fact that it

belonged to Jhumki Doma Bhutia before it was purchased by the

Respondent.

(ix) It was next argued that, the Schedule to the Counter

Claim is defective, the boundaries having been shown to be the

same as described in the Schedule to the Plaint. That, although a

Counter Claim was filed by the Appellants No.1 and 2 they did not

implead the Land Revenue Department as a party. The impugned

Judgment of the Learned Trial Court dated 24 -12-2019, dismissed

the Counter Claim of the Appellants but no appeal was filed against

such dismissal. In such circumstances, the Judgment of dismissal of

RFA No.09 of 2020 17

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

the Counter Claim has attained finality. The argument was

buttressed by Ramesh Chand vs. Om Raj and Others

2

.

(x) It was further canvassed that, the proviso to Section 34

of the Specific Relief Act, 1963 (hereinafter, the ―Specific Relief

Act‖), was invoked in the Counter Claim sans prayer for ―recovery‖

of possession. In the absence of such prayer, the Court cannot

make a declaration as sought by the Appellants.

(xi) That, when the cadastral survey of 1979 -80 were

conducted and attested in 1984, the Appellants No.1 and 2 made no

claims to the property and the records relied on by them shed no

light as to from when and how the claim of the A ppellants find

support.

(xii) That, although the suit land changed hands four times

from 1990 itself, having been sold to one Ong Tshering Bhutia by

the original owner and thereafter by him to Donkala Bhutia in 2005,

from Donkala Bhutia to Jhumki Doma Bhu tia in 2011 and from

Jhumki Doma Bhutia to Ashok Tshering Bhutia in 2013, no objection

to registration of the suit land was raised at any point of time earlier

and is now being raised belatedly with an ulterior motive.

(xiii) Apart from the foregoing arguments, it was contended

that the cause of action is time barred. Hence, the Appeal deserves

a dismissal.

15. The opposing contentions of the parties have been heard

in extenso, the pleadings, evidence, all documents on record and

the impugned Judgment da ted 24-12-2019 and impugned Order

dated 30-09-2023 have been carefully perused.

2

2022 SCC OnLine HP 2094

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The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

16. In the impugned Judgment , dated 24-12-2019, the

Learned Trial Court in Issue No.4 (supra) considered in depth the

evidence of the Respondent and the Appellants No.1 and 2. The

documents relied on by the Respondent as well as the Appellants

were discussed at length. The Court concluded that, it is proved by

the Plaintiff by virtue of Exbt 1 and Exbt 2 that he is the absolute

owner of the suit land and is in possession of the same.

17. The Counter Claim of the Appellants was dismissed.

18. On remand by a Learned Single Judge of this Court as

detailed (supra), the Learned Trial Court opined in the impugned

Order dated 30-09-2023 that the Appellants failed to prove Issues

No.(i), (ii) and (iii) with any cogent evidence, thus they could not

prove that the Respondent had claimed an excess area of 3.23 acres

of forest land. These being the findings of the Learned Trial Court, it

is now to be examined whether the findings were correct.

(i) The Respondent to prove his claims, before the Learned

Trial Court relied upon and identified Exbt-1 as the registered sale

deed executed by Jhumki Doma Bhutiani in his favour. He furnished

Exbt-2 the ―parcha khatiyan‖ (Title deeds) of the suit land, dated

21-02-2013, indicating that the disputed property is registered in his

name reflecting the area as claimed by him. He also furnished and

identified Ext-3 as the map of the land owned by him, issued by the

Survey and Demarcation Division, Forest, Environment and Wildlife

Management Department. Ext -4 was identified by him as another

map of the land belonging to him issued by the Village Level Officer

of the concerned area.

(ii) The original owner as appears from the records was one

Bishnu Prasad Sharma from whom it came to Ong Tshering Bhutia.

RFA No.09 of 2020 19

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

It was sold by Ong Tshering Bhutia to Donkala Bhutia, vide Exbt-17.

The sale deed document between the vendor and vendee then,

indicated that, the plot numbers, so transacted were 311, 312 and

313 measuring an area of 0.5960, 0.0460 and 1.1140 hectares

respectively at Burul Block, Bermiok Elaka, South Sikkim. Exbt-18

(parcha khatiyan) was thereafter issued to Donkala Bhutia bearing

the same plot numbers and the same area. Exbt -19 indicates that,

it was subsequently registered in the name of Jhumki Doma Bhutia

with the same plot numbers and the same area and title deeds

issued accordingly.

(iii) Mutation order Exbt-22 in the name of Jhumki Doma

Bhutia, fortifies the position that the suit land did not fall within the

forest land. The title deeds are fortified by the deed of conveyance

executed between the vendor and vendee in each of the cases and

are marked and identified as Exbt 1 (vendor Jhumki Doma Bhutia

and vendee Ashok Tshering Bhutia), Exbt 15 (Bishnu Prasad Sharma

vendor and Ong Tshering Bhutia vendee). This Court is aware that

mutation in revenue records neither creates nor extinguishes title.

It does not have any presumptive value. In Sawarani vs. Inder Kaur

and Others

3

it was held that;

“7. …………………………… Mutation of a property in

the revenue record does not create or extinguish title

nor has it any presumptive value on title. It only

enables the person in whose favour mutation is ordered

to pay the land revenue in question.………………………… ”

(iv) In Bhimabai Mahadeo Kambekar (dead) through Legal

Representative vs. Arthur Import and Export Company and Others

4

the

Supreme Court in this context reiterated that;

“5. The law on the question of mutation in the

revenue records pertaining to any land and what is its

3

(1996) 6 SCC 223

4

(2019) 3 SCC 191

RFA No.09 of 2020 20

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

legal value while deciding the rights of the parties is

fairly well settled by a series of decisions of this Court.

6. This Court has consistently held that mutation

of a land in the revenue records does not create or

extinguish the title over such land nor has it any

presumptive value on the title. It only enables the

person in whose favour mutation is ordered to pay the

land revenue in question. (See Sawarni v. Inder Kaur [Sawarni v. Inder

Kaur, (1996) 6 SCC 223] , Balwant Singh v. Daulat Singh [Balwant Singh v. Daulat

Singh, (1997) 7 SCC 137] and Narasamma v. State of Karnataka [Narasamma v. State

of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582] .)”

(v) Exbt-20, relied on by the Respondent is the spot

verification report dated 23-04-2010 issued by B. S. Rai, Survey

Inspector, Namchi, addressed to Deputy Director, Land Revenue

Department, Namchi, which details the spot verification, the

contents of which were inter alia that; on 05-04-2010 a Joint

inspection was conducted at Burul Block, South Sikkim and the land

was surveyed in the presence of the land owner, representatives of

Forest Department, LANCO Private Limited and Land Revenue

Department. On such verification it emerged that Plot nos. 311, 312

and 313, measuring a total area of 1.7560 hectares was recorded in

the name of Donkala Bhutia, Gangtok. It was also reported that no

forest land was encroached by Donkala Bhutia.

(vi) This being the settled legal position, the contra position

would be for the Appellants to furnish documentary evidence to

establish their claim of ownership or to indicate that it was reserved

forest area. The argument that the area of 1.10 acres in the name

of Hari Krishna Sharma in 1950-52 survey, became 4.33 acres in the

name of Bishnu Prasad Sha rma, has not been proved by the

Appellants No.1 and 2 by any documentary evidence. The toposheet

―Document-T‖ was not furnished in original or exhibited, the alleged

encroachment by the series of private owners has not been

established by the Appellants No.1 and 2 despite vehement verbal

claims. The Appellants witness K. B. Ghalay, testified that, there

RFA No.09 of 2020 21

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

are no conclusive records of the lands of the Appellants and the

Forest Department is dependent on the compilation made by the

Land Revenue Department. The evidence of Respondent’s witness

G. B. Subba reveals that there is no documentation to establish that

land revenue records do not contain the area of forest lands.

(vii) In fact with regard to ―Document-T‖, a perusal of the

records of the Learned Trial Court is revelatory of the fact that, on

07-11-2019 a detailed order on this facet was passed by the

Learned Trial Court. It appears that Appellants No.1 and 2 had filed

an application under Section 151 of the CPC on 22 -10-2019

submitting that the said Appellants had filed the toposheet bearing

No.78 A/8/4 along with the Written Statement as Annexure –3,

however during the time of examination of Defendant

No.1/Appellant No.1 on 10 -09-2019, the said document was

inadvertently marked as ―Document -T‖ instead of marking it as an

―Exhibit‖. It was argued by the Appellants No.1 and 2 that the

document was a vital and relevant document necessary for proper

adjudication in the matter, especially for resolution of disputes

regarding reserved forest and the non-marking of the document as

an ―Exhibit‖ was a bona fide mistake on the part of Defendants No.1

and 2 (Appellants No.1 and 2). This was objected to by the Counsel

for the Plaintiff/Respondent submitting that during their examination

Defendant No.1 had specifically stated that the said toposheet is a

copy and marked as ―Document -T‖ and was even cross-examined on

this aspect. The Learned Trial Court after hearing the parties inter

alia observed as follows;

“………………………………………………………………………….

On going through the evidence of Defendant

No.1, it is seen that during her examination she had

clearly stated that “Document-T is the copy of the

RFA No.09 of 2020 22

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

Toposheet Map bearing No.78 A/8/4 prepared by the

Survey of India.” She has not stated anything about

the said Toposheet Map being an original one. Even

she has been cross-examined by the Learned Counsel

for the Plaintiff on the basis of the said as Document-T.

There is nothing on record to show that the said

Toposheet Map is an original document and neither it is

certified by any competent authority. The marking of

the said Toposheet Map as ―Document -T‖ seems to be

proper and correct. It is noted that this suit is in its

advance state (i.e. at the stage of final arguments).

In view of the above and considering the facts

and circumstances of this case, the application filed by

the Defendant No.1 & 2 under Section 151 of the Code

of Civil Procedure, 1908, is hereby rejected and

accordingly disposed of.

…………………………………………………………………………. ”

(viii) Relevantly it may be pointed out that, Tra nsfer of

immovable property by way of sale can only be by a deed of

conveyance viz., a sale deed. It is only in the absence of a deed of

conveyance that no right, title or interest in the immovable property

can be transferred. The word ―conveys‖ is explained in Section 5 of

the Transfer of Property Act, 1882 (hereinafter, the ―TP Act‖) which

reads as follows;

“5. “Transfer of property” defined. —In the

following sections ―transfer of property‖ means an act

by which a living person conveys property, in present

or in future, to one or more other living persons, or to

himself, or to himself and one or more other living

persons; and ―to transfer property‖ is to perform such

act.

In this section ―living person‖ includes a

company or association or body of individuals, whether

incorporated or not, but nothing herein contained shall

affect any law for the time being in force relating to

transfer of property to or by companies, associations or

bodies of individuals.”

It is also settled law that any contract by sale, which is not a

registered deed of conveyance would fall short of the requirements

of Section 54 and Section 55 of the TP Act. Such a circumstance

would not confer any title nor transfer any interest in immovable

property. In the instant matter there ca n be no denial of the

existence of an execution of conveyance Exbt-1, between Jhumki

RFA No.09 of 2020 23

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

Doma Bhutia to the Respondent duly stamped and registered as per

the requisite law as already discussed at length (supra).

(ix) Exbt 21, NOC, dated 08-12-2012 indicated that the land

bearing plot nos.311, 312 and 313 pertaining to Jhumki Doma

Bhutia, did not fall within the forest land. On 27 -05-2015, vide

Exbt-23, another NOC issued by the Divisional Territorial Officer (T)

of the Forest Department, certified that the Forest, Environment and

Wildlife Management Department, South Division, Namchi had no

objection to the issuance of NOC for the land bearing No.311, 312

and 313, at Burul Block, South Sikkim, as the land holding was

recorded in the name of Shri Ashok Tshering Bhutia (Respondent)

resident of Gangtok, East Sikkim, as per the cadastral survey of

1979-80. It was further certified that, as per the report of the

Revenue Surveyor, (Namchi, South Sikkim), there is no

encroachment of any kind of forest land.

(x) The Search Certificate Exbt-24 issued by the Revenue

Officer/Assistant Director, LR&DMD, District Administrative Centre,

South Sikkim, dated 27-03-2017,reflected that, land bearing plot

nos. 311, 312 and 313 measuring a total area of 0.5960, 0.0460

and 1.1140 hectares respectively situated at Burul Block, South

Sikkim were found recorded in the name of Bishnu Prasad Brahman

son of late Lall Das Brahman as per the survey record of 1979 -80.

The certificate also delineates the exchange of the disputed property

from one owner to the next, in the series of persons who came to

own the property. The cross-examination of the Respondent

conducted by the Appellants with regard to the aforementioned

documentary evidence stood undecimated.

RFA No.09 of 2020 24

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

(xi) It also appears from Exbt-6, the letter addressed by the

Sub-Divisional Magistrate, Namchi, to the Additional Chief Engineer,

Energy and Power Department, Government of Sikkim, that on 01 -

12-2016, land measuring 1.7560 hectares vide khatiyan no.116,

which was found recorded in the name of Ashok Tshering Bhutia,

had been identified for establishment of sub-station by the Energy

and Power Department. Exbt -7 reveals that the Additional Chief

Engineer (Tr.), issued a letter to the Ward Panchayat, Burul

(Samardung), South Sikkim, fo r negotiation of the rate of lands

pertaining to the Respondent with a request that the said Ward

Panchayat to be present on 19-12-2016 to witness the negotiations.

(xii) Exbt-8 indicates that the rate of acquisition was fixed at

Rs.490/- per square feet. These documents support the claim of the

Respondent that a project for 66 KV was to be built on his land and

the rate of acquisition was also arrived at.

(xiii) The evidence of the Respondent’s witnesses, Rishi Raj

Pradhan and Munna Kumar Pradhan suppo rted the Respondent’s

case of ownership of the disputed property, vide the documents

relied on by the Respondent. Merely because the witnesses are

related to the Respondent, the weight of their evidence cannot be

brushed aside, more especially when the cr oss-examination has

failed to extract otherwise.

(xiv) Further, on the question of ownership, when the

evidence of Peggyla Tshering Venchungpa witness for the Appellants

No.1 and 2 is perused, it is evident that apart from the joint

inspection report (the veracity of which is denied by the

Respondent, as he was not present there nor does the inspection

report bear his signature), reliance is placed on the map of the suit

RFA No.09 of 2020 25

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

land said to be Exbt-D1 (in three pages collectively) comprising of

joint inspection report, Map showing land of Hari Krishna Sharma

and Map showing land of Bishnu Prasad Sharma . Admittedly, this

document is a certified copy. No reason has been put forth as to

why a certified copy was furnished. Ext-D-8(collectively) relied on

by the witness is also a certified copy of the map of 1950 -52 of

Burul Block.

(xv) The law as emanates on the aspect of documentary

evidence, is that, the contents of documents may be proved either

by primary or secondary evidence. Section 61 of the Indian

Evidence Act, 1872 (hereinafter, the ―Evidence Act’), provides that

the contents of documents may be ―proved‖ either by primary or by

secondary evidence. Section 62 of the Evidence Act deals with

primary evidence and means the document itself produced for the

inspection of the Court. Section 63 of the Evidence Act details what

documents can be produced in secondary evidence and includes as

follows;

“63. Secondary evidence. ─Secondary evidence

means and includes ─

(1) certified copies given under the provisions

hereinafter contained;

(2) copies made from the original b y the

mechanical processes which in themselves

insure the accuracy of the copy, and

copies compared with such copies;

(3) copies made from or compared with the

original;

(4) counterparts of documents as against the

parties who did not execute them;

(5) oral accounts of the contents of a

document given by some person who has

himself seen it.

Illustrations

(a) …………………………………………………………………………

(b) …………………………………………………………………………

(c) …………………………………………………… ……………………

(d) ……………………………………………………………………… ”

(xvi) Section 64 of the Evidence Act lays down that

documents must be proved by primary evidence except in the cases

RFA No.09 of 2020 26

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

mentioned in Section 65 of the Evidence Act . The law mandates

that a document which is produced as primary evidence, to be

produced in the manner laid down in Section 67 to Section 73 of the

Evidence Act. Mere production and marking of a document as an

exhibit by the Court cannot be held to be due proof of its contents.

Its execution has to be proved by admissible evidence. The

Supreme Court in Neeraj Dutta vs. State (Government of NCT of Delhi)

5

held as follows;

“60. ………………………………. On the other hand,

when a document is produced and admitted by t he

opposite party and is marked as an exhibit by the

court, the contents of the document must be proved

either by the production of the original document i.e.

primary evidence or by copies of the same as per

Section 65 as secondary evidence. So long as an

original document is in existence and is available, its

contents must be proved by primary evidence. It is

only when the primary evidence is lost, in the interest

of justice, the secondary evidence must be allowed.

Primary evidence is the best evidence and it affords

the greatest certainty of the fact in question. Thus,

when a particular fact is to be established by

production of documentary evidence, there is no scope

for leading oral evidence. What is to be produced is the

primary evidence i.e. document itself. It is only when

the absence of the primary source has been

satisfactorily explained that secondary evidence is

permissible to prove the contents of documents.

Secondary evidence, therefore, should not be accepted

without a sufficient reason being gi ven for non -

production of the original.” [emphasis supplied]

(xvii) The position with regard to secondary evidence has been

further clarified in Vijay vs. Union of India and Others

6

wherein it was

held as under;

“34. ………………………… ………………………………………..

34.1. Law requires the best evidence to be given

first, that is, primary evidence. [Neeraj Dutta v. State (NCT of Delhi)

(five-Judge Bench), (2023) 4 SCC 731 : (2023) 2 SCC (Cri) 352; J. Yashoda v. K.

Shobha Rani (two-Judge Bench), (2007) 5 SCC 730 : (2007) 3 SCC (Cri) 9]

34.2. Section 63 of the Evidence Act provides a

list of the kinds of documents that can be produced as

secondary evidence, which is admissible only in the

absence of primary evidence. [J. Yashoda v. K. Shobha Rani, (2007) 5

SCC 730 : (2007) 3 SCC (Cri) 9]

34.3. If the original document is available, it has

to be produced and proved in the manner prescribed

for primary evidence. So long as the best evidence is

5

(2023) 4 SCC 731

6

(2023) 17 SCC 455

RFA No.09 of 2020 27

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

within the possession or can be produced or can be

reached, no inferior proof could be given. [J. Yashoda v. K.

Shobha Rani, (2007) 5 SCC 730 : (2007) 3 SCC (Cri) 9]

34.4. A party must endeavour to adduce

primary evidence of the contents, and only in

exceptional cases will secondary evidence be

admissible. The exceptions are designed to provide

relief when a party is genuinely unable to produce the

original through no fault of that party. [M. Chandra v. M.

Thangamuthu (two-Judge Bench), (2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907]

34.5. When the non-availability of a document is

sufficiently and properly explained, then the secondary

evidence can be allowed. [Neeraj Dutta v. State (NCT of Delhi), (2023)

4 SCC 731 : (2023) 2 SCC (Cri) 352]

34.6. Secondary evidence could be given when

the party cannot produce the original document for any

reason not arising from his default or neglect. [Surendra

Krishna Roy v. Mohd. Syed Ali Matwali Mirza, 1935 SCC OnLine PC 56 : (1935 -36) 63

IA 85]

34.7. When the copies are produced in the

absence of the original document, they become good

secondary evidence. Still, there must be foundational

evidence that the alleged copy is a true copy of the

original. [H. Siddiqui v. A. Ramalingam (two-Judge Bench), (2011) 4 SCC 240 :

(2011) 2 SCC (Civ) 209]

34.8. Before producing secondary evidence of

the contents of a document, the non-production of the

original must be accounted for in a manner that can

bring it within one or other of the cases provided for in

the section. [H. Siddiqui v. A. Ramalingam (two-Judge Bench), (2011) 4 SCC

240 : (2011) 2 SCC (Civ) 209]

34.9. Mere production and marking of a

document as an exhibit by the Court cannot be held to

be due proof of its contents. [Neeraj Dutta v. State (NCT of Delhi),

(2023) 4 SCC 731 : (2023) 2 SCC (Cri) 352] It has to be proved in accordance with

the law. [H. Siddiqui v. A. Ramalingam (two-Judge Bench), (2011) 4 SCC 240 : (2011)

2 SCC (Civ) 209]

35. A reading of Section 65(a) of the Evidence

Act displays the following:

(a) Secondary evidence can be presented as a

substitute when the original document/primary

evidence is in the possession of the opposing party or

held by a third party;

(b) Such a person refuses to produce the

document even after due notice; and

(c) It must be ensured that the alleged copy is a

true copy of the original.”

(xviii) The above having been propounded by the Supreme

Court, the Appellants have failed to enlighten the Court with reasons

for non-production of the original documents discussed [Exbt D1

(collectively) and Ext-D-8(collectively)]. They have failed to explain

whether the original documents were lost or destroyed. There is no

satisfactory explanation for non -production of the original

documents hence these documents are discarded as failing to fulfill

RFA No.09 of 2020 28

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

the mandate of law. On this facet it is pertinent to mention that the

toposheet was also not produced in original. Similar is the fate of

the toposheet which has already been considered and discussed

earlier. The non-production of the original documents in the

circumstances leads to an adverse inference against the Appellants

as provided in Illustration (g) of Section 114 of the Evidence Act.

(xix) Consequently, all documents in photocopy, relied on by

the Appellants do not establish ownership of the disputed plots of

land by the Appellants No.1 and 2 nor does it establish that the land

fell within forest land or was reserved forest.

(xx) While considering the argument of the Appellants No.1

and 2 that the total forest area of the Tsalumthang forest was

shown by the toposheet map and reliance placed on the case of T.N.

Godavarman Thirumul kpad (supra), it may be stated here that the

case of T. N. Godawarman Thirumulkpad (supra) is of no assistance to

the Appellants case unless it is shown that the said area was forest

land in the first instance. No such proof was furnished as it was not

proved that the records of 1950-52 also indicated ownership of the

suit lands by the Appellants No.1 and 2.

(xxi) The Indian Forest Act, 1927, at Section 4 provides inter

alia as follows;

“4. Notification by State Government. ─

(1)Whenever it has been decided to constitute any land

a reserved forest, the State Government shall issue a

notification in the Official Gazette─

(a) declaring that it has been decided to

constitute such land a reserved forest;

(b) specifying, as nearly as possible, the

situation and limits of such land; and

(c) appointing an officer (hereinafter called

―the Forest Settlement Officer‖) to inquire

into and determine the existence, nature

and extent of any rights alleged to exist in

favour of any person in or over any land

comprised within such limits, or in or over

RFA No.09 of 2020 29

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

any forest-produce, and to deal with the

same as provided in this Chapter.

Explanation.─For the purpose of clause (b), it

shall be sufficient to describe the limits of the forest by

roads, rivers, ridges or other well-known or readily

intelligible boundaries.”

No Notification in terms of the above statutory provision was

furnished by the Appellants No.1 and 2 before the Learned Trial to

indicate the areas that fell under forest reserve, or that, the land of

the Respondent was constituted as a reserved forest.

(xxii) Reverting at this juncture to the evidence of Peggyla

Tshering Venchungpa, she admitted that Ext-D-8(collectively), the

khasra records, do not indicate that the same pertains to 1950-52

records or that it is of ―Burul Block‖. She was unable to identify the

person who had scribed ― Burul Block Khasra copy of 1950-52

records‖ in fresh ink on Ext-D-8(collectively). According to the

witness, ―…………………… It is true the Forest Department is basing

their claim that the suit property is in fact a Reserve Forest only

based on the Survey of India Toposheet marked Document -T. It is

true Document-T also shows Tsalumthang Reserve Forest. It is true

Document-T states that Tsalumthang Reserve Forest is a dense

mixed jungle mainly of Sal and Kattus. …………‖.

(xxiii) Witness Ashish Gurung for the Appellants No.1 and 2

was the Range Officer (Territorial Circle), he failed to shed light on

the ownership of the disputed property by the Forest Department.

Despite asserting that the joint inspection [Exbt D1 (in three pages

collectively)] revealed an excess land and further asserting that an

excess area of 3.23 acres fell under the Tsalumthang reserved

forest, the Court was not enlightened by any of the witnesses as to

what was the entire area of the Tsalumthang reserved forest area as

per the 1950-52 cadastral survey and the 1979-80 survey.

RFA No.09 of 2020 30

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

(xxiv) To buttress their claim that the NOCs issued vide Exbt-

21 and Exbt-23 respectively certifying that the suit land did not fall

within the forest land were erroneous, it was highlighted that the

officer concerned i.e., DFO(T) was issued show-cause by his higher

authority. No documentary evidence was furnished to substantiate

the claims of the Appellants, that the property ever belonged to

them and was cut out f rom the reserved forest by way of

encroachment. The Appellants witnesses also failed to specify when

the wrong entries were made in the records of rights and who was

responsible for the wrong entries. The original records called from

the Land Revenue Department were not exhibited by the Appellants

to establish the allegations of wrong entries made in the cadastral

survey of 1979-80 from that of the cadastral survey of 1950-52.

(xxv) Pausing here for a minute, it would be pertinent at this

juncture to navigate through the provisions of Section 101 of the

Evidence Act which provides as follows;

“101. Burden of proof. ─Whoever desires any

Court to give judgment as to any legal right or liability

dependent on the existence of facts which he asserts,

must prove that those facts exist.

When a person is bound to prove the existence

of any fact, it is said that the burden of proof lies on

that person.”

Illustrations (b) of the said Section reads as follows;

“Illustrations

(a) ………………… ……………………………………. ……………

(b) A desires a Court to give judgment that he is

entitled to certain land in the possession of B, by

reason of facts which he asserts, and which B denies,

to be true.

A must prove the existence of those facts.”

(xxvi) The Supreme Court in Rangammal vs. Kuppuswami and

Another

7

has observed as follows;

“14. …………………………………….. When a person is

bound to prove the existence of any fact it is said that

7

AIR 2011 SC 2344

RFA No.09 of 2020 31

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

the burden of proof lies on that person. Thus, the

Evidence Act has clearly laid down that the burden of

proving fact always lies upon the person who asserts it.

Unless such burden is discharged, the other party is

not required to be called upon to prove his

case……………………………… ”

Thus, the burden of proof lies on the Appellants to establish their

claim of ownership having filed a Counter Claim claiming that the

property belongs to the Forest Department.

(xxvii) Besides it may be relevantly pointed out that there is

always a presumption that a registered document is validly

executed/registered and is prima facie valid in law. Section 114

Illustration (e) of the Evidence Act provides that the Court may

presume that judicial and official acts have been regularly performed

and Section 114 Illustration (f) of the Evidence Act provides that the

Court may presume that the common course of business has been

followed in a particular case. In the absence of evidence to the

contrary, it is presumed that all official works pertaining to entries in

the book of title deeds and mutation was done in a correct manner.

(xxviii) That having been said, the Appellant No.3 by and large

had no role to play in the claim of the Appellants No.1 and 2 and the

Respondent, the Appellant No.3 was only responsible for identifying

the land for construction of the project.

19. After the matter was remanded back to the Trial Court

and additional witnesses were jointly examined by all the Appellants

but no evidence different from the evidence at the time of the first

trial emerged to support the Appellants case. A startling fact that

emerged from the evidence of the witness Rajendra Prasad Sharma

of the Appellant is that “………….. The said joint inspection report

aforesaid was not prepared on the spot. After the spot inquiry, the

said joint inspection report was prepared, typed and printed in our

RFA No.09 of 2020 32

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

office in the presence of our entire team. The maps accompanying

the joint inspection report (Exhibit-D1) were also prepared in our

office after the field surv ey…….….”. No document or written

evidence on the record of the case was furnished to show that

Munna Kumar Pradhan was authorized by Ashok Tshering Bhutia to

represent him in the joint inspection. The joint inspection report

lacks credibility and is therefore discarded.

(i) On remand, the evidence of the original owner Hari

Krishna Sharma, by the Respondent, further revealed that, the

disputed plot of land was more than 1.10 acres and his cross -

examination extracted the fact that it was about 4.33 acres. The

evidence of cultivator of the land Binod Rai under the original owner

delineated the boundaries of the suit land, which are found to be in

coordination with the boundaries set out in the Plaint. In this

context, it is no more res integra that boundaries have precedence

over area. In Subhaga and Others vs. Shobha and Others

8

the Supreme

Court while discussing the title claimed by the Plaintiff over a plot of

land observed as follows;

“6. The High Court has also upheld the title

claimed by the plaintiff over Plot No. 1301/1 Ba. Once

we accept the identification made by the Commissioner

as was done by the first appellate court, it is clear that

the plaintiff has the right to have the disputed

construction removed and the well filled up. That a

property can be identified either by boundary or by any

other specific description is well established. Here the

attempt had been to identify the suit property with

reference to the boundaries and the Commissioner has

identified that property with reference to such

boundaries. Even if there was any discrepancy,

normally, the boundaries should prevail.

……………………………. ”

(ii) It may therefore be reiterated that , in case of

discrepancy between dimensions and boundaries, the rule of

interpretation is that boundaries must prevail as against the

8

(2006) 5 SCC 466

RFA No.09 of 2020 33

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

measurement. This legal point was expounded as far back in 1924

by the Madras High Court in Subbayya Chakkiliyan vs. Manjam Muthiah

Goundan and Another

9

, where it was held that;

“……………………………………………………………………………

…… Ordinarily when a piece of land is sold with

definite boundaries, unless it is very clear from the

circumstances surrounding the sale that a smaller

extent than what is covered by the boundaries was

intended to be sold, the rule of interpretation is that

boundaries must pre vail as against the

measurements……….

…………………………………………………………………………. ”

(iii) On the same lines in T. Rajlu Naidu vs. M.E.R. Malak

10

, it

has been held as follows;

“……………………………………………………………………………

……. In case of discrepancy between dimensions

and boundaries the area specified within the

boundaries will pass, whether it be less or more than

the quantity specified. ……….

…………………………………………………………………………. ”

20. The argument of Learned Additional Advocate General

that it was the bounden duty of the Respondent to check the area of

the land with the original owners in my considered view not only

lacks a legal mandate but is too farfetched, the land having

exchanged hand three times prior to the Respondent having

purchased it from Jhumki Doma Bhutia. In fact, what needs to be

mulled over is the role of Appellants No.1 and 2 when the survey of

1979-80 was being prepared and why they failed to raise objections

then if aggrieved.

(i) The contention of the Learned Additional Advocate

General that the no issue was framed for determination with regard

to the transaction between Bishnu Prasad Sharma and his son Hari

Krishna Sharma in my considered view is a situation of ―too little,

too late‖. In this context, we may refer to Order XIV of the CPC

9

AIR 1924 MADRAS 493

10

AIR 1939 NAGPUR 197

RFA No.09 of 2020 34

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

which deals with settlement of issues. Order XIV Rule 5 of the CPC

clothes the Court with powers to amend the issues or frame

additional issues on such terms as it thinks fit and all such

amendments and additional issues as may be necessary for

determining the matter in controversy between the parties shall be

so made or framed. The additional issues had already been framed

by the Single Bench of this High as detailed (supra). It was for the

Appellants to have made their submissions for framing of any

requisite additional issue before this Court, when the additional

issues were being considered or to have been raised the issue before

the Learned Trial Court seeking inclusion of any such issue. It

cannot be raised belatedly at the time of Appeal, after the parties

were afforded sufficient opportunity to put forth their case including

furnishing of additional evidence additional arguments and the case

concluded by the Learned Trial Court.

(ii) It was also canvassed that the Respondent failed to file a

reply to the Counter Claim. The impugned Judgment dated 24 -12-

2019 has dismissed the Counter Claim. The Supreme Court in the

point of Counter Claim has enunciated in Rajni Rani and Another vs.

Khairati Lal and Others

11

that;

“9.6. On a plain reading of the aforesaid

provisions it is quite limpid that a counterclaim

preferred by the defendant in a suit is in the nature of

a cross-suit and by a statutory command even if the

suit is dismissed, counterclaim shall remain alive for

adjudication. For making a counterclaim entertainable

by the court, the defendant is required to pay the

requisite court fee on the valuation of the counterclaim.

The plaintiff is obliged to file a written statement and in

case there is default the court can pronounce the

judgment against the plaintiff in relation to th e

counterclaim put forth by the defendant as it has an

independent status. The purpose of the scheme relating

to counterclaim is to avoid multiplicity of the

proceedings. When a counterclaim is dismissed on

11

(2015) 2 SCC 682

RFA No.09 of 2020 35

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

being adjudicated on merits it forecloses the rig hts of

the defendant. As per Rule 6 -A(2) the court is required

to pronounce a final judgment in the same suit both on

the original claim and also on the counterclaim. The

seminal purpose is to avoid piecemeal adjudication.

The plaintiff can file an application for exclusion of a

counterclaim and can do so at any time before issues

are settled in relation to the counterclaim. We are not

concerned with such a situation.” [emphasis supplied]

(iii) The Supreme Court was discussing the provisions of

Order VIII Rule 6A of the CPC which deals with Counter Claim filed

by the Defendants. Rule 6A(2) of Order VIII of the CPC provides

that, the Counter Claim shall have the same effect as a cross-suit so

as to enable the Court to pronounce a final Judgment in the same

suit both on the original claim and on the Counter Claim. The

Counter Claim is therefore to be treated as a cross -suit, in other

words, just as the Plaintiff is required to prove his case by a

preponderance of probability, the same burden rests on the party

filing the Counter Claim. In this context, as pointed out by Learned

Senior Counsel for the Respondent, once the Counter Claim was

dismissed by the Learned Trial Court under Order VIII Rule 6A of the

CPC, the Appellants were to have assailed the Order of dismissal of

the Counter Claim by the Learned Trial Court. No such challenge

was made to the Order of dismissal as a consequence the Judgment

in the context of the Counter Claim has obtained finality.

(iv) I am also not inclined to agree with the argument of the

Learned Additional Advocate General that the Learned Trial Court on

remand returned no finding on the three additional issues. A

perusal of the impugned Order dated 30-09-2023, from Paragraphs

9 to 11 would indicate that the finding s although not happily

worded, have been returned by the Learned Trial Court.

(v) Delving further into the question of ownership of the

disputed land by Appellants No.1 and 2, as pointed out by Learned

RFA No.09 of 2020 36

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

Senior Counsel for the Respondent, Section 34 of the Specific Relief

Act provides that;

“34. Discretion of court as to declaration of

status or right.—Any person entitled to any legal

character, or to any right as to any property, may

institute a suit against any person denying, or

interested to deny, his title to such character or right,

and the court may in its discretion make therein a

declaration that he is so entitled, and the plaintiff need

not in such suit ask for any further relief:

Provided that no court shall make any such

declaration where the plaintiff, being able to seek

further relief than a mere declaration of title, omits to

do so.

Explanation.—A trustee of property is a ―person

interested to deny‖ a title adverse to the title of

someone who is not in existence, and whom, if in

existence, he would be a trustee.”

In the prayer of the Counter Claim, no prayer for recovery of

the suit land has been made, there cannot be a prayer only for

declaration of title, where the Plaintiff is able to seek further relief,

in as much as a prayer for recovery of possession was imperative as

they claim to have been dispossessed of the suit land due to the

faulty survey operations of 1979-80.

(vi) While addressing the argument of Learned Senior

Counsel for the Respondent that post the enforcement of the survey

operation of 1979-80 the survey operations of 1950 -52 had no

relevance in my considered view this is an erroneous proposition. It

is necessary to notice that prior to the survey operation of 1979-80

the area of land in Sikkim was measured in acres. After the survey

operation of 1979-80 the lands were measured in terms of hectares

and the plot numbers existing earlier were renumbered. In the

obtaining circumstances, the survey operations of 1950 -52 can be

resorted to for the purposes of verification of area of land of a

particular owner as the external boundaries of land owned by a

person would continue to be the same.

RFA No.09 of 2020 37

The Divisional Forest Officer (T) and Others vs. Ashok Tshering Bhutia

(vii) This Court in K. B. Bhandari vs. Laxuman Limboo and

Another

12

held as follows;

“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 st ate 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.”

21. In the end result, the foregoing discussions lend a

quietus to the two issues settled for determination (supra). The

impugned Judgment dated 24 -12-2019, in Title Suit No.02 of 2017

and the impugned ―Order‖ dated 30 -09-2023, in Title Suit No.02 of

2017, thereby warrant no interference.

22. The Appeal deserves to be and is accordingly dismissed.

23. Parties shall bear their own costs.

24. Copy of this Judgment be transmitted to the Learned

Trial Court forthwith along with its records.

25. Pending applications, if any, also stand disposed of.

( Meenakshi Madan Rai )

Judge

15-05-2026

Approved for reporting : Yes

ds/sdl

12

2017 SSC OnLine Sikk 122