http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:

Appeal (civil) 9265 of 1995

PETITIONER:

M.T.W. Tenzing Namgyal & Ors.

RESPONDENT:

Motilal Lakhotia & Ors.

DATE OF JUDGMENT: 05/02/2003

BENCH:

CJI, S.B. Sinha & AR. Lakshmanan

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The appellants herein are successors in interest of late Chogyal Sir

Tashi Namgyal of Sikkim.

A suit was filed by Mewang Tobgyal Wangchuk Tenzing Namgyal

son of late Chogyal Palden Thondup Namgyal and others against the

defendants respondents herein praying for the following reliefs :

(a) recovery of possession of the encroached portion of the land shown

in the annexed plan if required, by demolishing the construction

made thereon;

(b) permanent injunction restraining the defendants from using the

aforesaid 12 feet wide passage or making any construction

whatsoever over the same;

(c) pending disposal of the suit an order for restraining the defendants

from construction of the flyover or blocking the passage and also

restraining the defendants from carrying on with further work of

construction on the encroached land shown in the attached plan;

(d) cost of the suit;

(e) any other relief or reliefs to which the plaintiff may be found

entitled to under law and equity.

Shortly stated, the said suit was filed on the following allegations :

Plot Nos. 1013, 1014 and 1040 (part) situated at Gangtok belonged to

late Chogyal Sir Tashi Namgyal of Sikkim were his personal properties

forming part of his private estate which upon his death devolved on the

original plaintiff and on his death upon the appellants. Allegedly, one pucca

building was constructed on Plot No. 1014 situated at New Market Road,

Gangtok which was let out to the tenants. On the adjacent land to the same

building, there existed a private passage of 12 feet width made of steps and

further on the adjacent south thereto, there was another building known as

Yuthok building situated on Plot No. 1012. Another passage existed behind

the aforesaid two buildings which is said to be a private gully being Plot No.

1013. There are two wooden buildings used as kitchen, latrines and godown

for the use of tenants occupying Nayabazar building and Yuthok building.

Allegedly there was a retaining wall on the west of Plot No. 1040

(part) which was the boundary between the land of the Plaintiffs' private

estate and the land of defendant No. 2.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

According to the plaintiffs, the defendants started construction of a

big pucca building for the purpose of running a hotel on the land situated on

the south of his land being Plot no.1040 and allegedly the defendants

illegally encroached upon about 6,600 sq. ft. therein.

The defendants filed their written statement denying and disputing the

allegations made in the plaint. The defendants although admitted the

existence of the pucca building and the flight of steps but contended that the

latter belonged to Gangtok Municipality which was meant to serve as the

exclusive passage to the plot on which defendant No. 2 had been

constructing a multi-storeyed building. It was alleged that beyond the

structures of the plaintiffs a precipitated hill edge exists on the eastern

boundary of the defendants' land and the same was all through in their

exclusive possession. The defendants claimed settlement of their land by

reason of three documents which were marked as Exhibits D-9, D-10 and

D-11 of the years 1961, 1975 and 1977 respectively.

The said suit was initially dismissed by the District Judge, Gangtok by

a judgment and decree dated 29th March, 1985 whereagainst the plaintiffs

preferred an appeal before the High Court. By a judgment dated 11.8.1986

while setting aside the judgment and decree of the learned District Judge the

matter was remanded with a direction to appoint another Commissioner to

make local investigation with reference to the cloth survey map and on

actual measurement on the spot so as to ascertain the actual area of Plot No.

1040, the area covered by the Denzong Cinema, the Tashi Delek Hotel and

the exact location of all other constructions in a map. An opportunity was

also given to the parties to re-examine their witnesses to clear the anomalies

indicated in the said judgment.

Pursuant to or in furtherance of the said direction contained in the

said judgment, the leaned District Judge appointed another Commissioner

who, inter alia, found that Plot No. 1040 measures 0.69 acres out of which

the land allotted to the defendants was 13, 879 sq. ft. and the total area of

constructions made by defendant Nos. 1 and 2 being the Denzong Cinema,

two shop houses and hotel comes to 13, 616.46 sq. ft., which was accepted

by the defendants but according to the plaintiffs the same was 13, 503.60 sq.

ft.

The learned District Judge, Gangtok by a judgment and decree dated

26.2. 1988 decreed the suit. A Division Bench of the High Court, however,

in appeal reversed the said judgment and decree by a judgment dated 30th

June, 1994.

The appellants are before us in appeal questioning the correctness or

otherwise of the said judgment.

Mr. G.L. Sanghi, learned senior counsel appearing on behalf of the

appellants, inter alia, submitted that the High Court committed a serious

error in construing the Khasra (Exhibit P-36) in so far as it held that entries

appearing in the name of Sir Tashi Namgyal did not belong to his private

estate. The learned counsel would contend that the High Court further fell in

error in holding that his Plot No. 1040 being situated within the bazar area

was acquired for a sum of Rs. 1,50,000/-. It was submitted that as there had

been no transfer of title from the plaintiffs to the private estate in any

manner whatsoever, the Government of Sikkim did not derive any title

thereto.

Mr. Sanghi would contend that the purported acquisition of the suit

land said to have been proved by Exhibits D-7, D-14 and D-23/12 does not

show that there had been any transfer of property within the meaning of

Section 54 of the Transfer of Property Act which was applicable to the State

of Sikkim and in absence thereof the ownership of the plaintiffs in respect

of Plot Nos. 1013 and 1040 continued with the plaintiffs. Drawing our

attention to certain findings of the High Court in Civil Appeal No. 2 of 1985,

the learned counsel would argue that the High Court in its judgment arrived

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

at an erroneous conclusion that as 'private estate' had not been mentioned

against the Plot Nos. 1013 and 1040 in Exhibit P-36, the same had vested in

the State of Sikkim.

Mr. Mitra, the learned senior counsel appearing on behalf of

respondent no.1, on the other hand, would submit that the conspectus of

events found by the High Court in the judgment under appeal would clearly

establish that the defendants have constructed the hotel building in

accordance with the sanction accorded by the competent authorities. It was

submitted that most of the documents, whereupon reliance had been placed

by the High Court were produced by the plaintiffs and/or received from the

custody of their witnesses. Mr. Mitra would contend that having regard to

the facts and circumstances of this case no presumption can be raised as

regards correctness of the entries made in Khasra (Exhibit P-36). In support

of the said contention, strong reliance has been placed on Sita Ram Bhau

Patil vs. Ramchandra Nago Patil (Dead) By L.Rs. and Another [(1977) 2

SCC 49].

Mr. Bhaskar Gupta, the learned senior counsel appearing on behalf of

respondent No. 2 would submit that as in the instant case, the plaintiffs have

not been able to prove their title over Plot No. 1040, an independent

investigation thereof with reference to the defendants' title was not

necessary. The learned counsel in support of the said contention placed

strong reliance on Nagar Palika, Jind Vs. Jagat Singh, Advocate [(1995) 3

SCC 426].

The Plaintiffs' predecessor in interest was late Chogyal Sir Tashi

Namgyal of Sikkim. There is, therefore, no question of plaintiffs' having

any document of title.

The only document of title which was produced by the plaintiffs in

support of their claim is the aforementioned Khasra (Exhibit P-36). In

Exhibit P-36 entries against different plots, inter alia, have been made in the

name of 'Sarkar' as also in the name of 'Shri Panch Maharaja Sir Tashi

Namgyal of Sikkim'. Certain plots have also been recorded as 'Private

Estate. Plot No. 1013 has been recorded in the name of Shri Panch Maharaj

Sir Tashi Namgyal. Plot Nos. 1014 and 1040 have also been recorded in his

name. In none of the entries the area of the plots is mentioned. It is relevant

to note that the plaintiffs in their plaint claimed ownership in respect of Plot

nos. 1013, 1014 and 1040 (part). No claim had been made in the plaint that

the entire plot No. 1040 belonged to the plaintiffs.

How the plaintiffs claimed title in respect of a part of Plot No. 1040

has also not been disclosed. The said Khasra was prepared in the year 1954.

However, admittedly a suggestion to acquire the said land was mooted to the

effect that a lump-sum payment may be made to the 'private estate' in lieu

of the bazar area with all the income accruing therefrom upon payment of a

sum of Rs. 1,50,000/- to the private estate, so that the same may vest in the

Sikkim Darbar.

The said proposal was put up for approval and sanction of the

Chogyal. On 22nd June, 1959, the said proposal was accepted. Requisite

steps for payment of the said amount to the private estate were taken on 26th

June, 1959. Exhibit D-7 contains an entry in the cash book of the Finance

Department of Sikkim regarding payment of Rs. 1,50,000/-. Exhibit D-8 is a

classified abstract showing the expenditure of the Government of Sikkim for

the year 1959-60 regarding payment of Rs. 1,50,000/-. Both Exhibits D-7

and D-8 are dated 07.12.1959.

The High Court recorded a finding to the effect that all lands which

were entered in the Khasra (Exhibit P-36) in the name of Sir Tashi Namgyal

did not belong to his private estate. The said finding, however, may not be

correct in view of the fact that admittedly his lands in suit were subject

matter of acquisition.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

We, therefore, may proceed on the assumption that the said finding of

the High Court is incorrect.

The question which, therefore, ought to have been raised was not that

as to how the said property was treated prior to 24.6.1959 but how the said

property has been treated thereafter. It is not in dispute that the Sikkim

Darbar granted settlement of piece and parcel of land measuring (166' x 66'

+ 24'/2 x 16') in favour of the first respondent for construction of

Cinema Hall on 10-4-1961. Several letters appear to have been passed

between the Executive Officer, Bazar Department of Government of Sikkim

and the respondents herein with regard to the constructions on the said land.

Admittedly the original plaintiff held shares in Denzong Cinema Limited. It

is also beyond any dispute that construction of the Cinema Hall started in the

year 1969. The State of Sikkim merged with the Union of India in terms of

an agreement on 26th April, 1975.

Article 371 F(h) of the Constitution of India reads thus:

"371F. Special provisions with respect to the

State of Sikim. Notwithstanding anything in this

Constitution, -

(h) all property and assets (whether within or

outside the territories comprised the State of

Sikkim) which immediately before the appointed

day were vested in the Government of Sikkim or in

any other authority or in any person for the

purposes of the Government of Sikkim shall, as

from the appointed day, vest in the Government of

the State of Sikkim;"

After merger of Sikkim in the Union of India, the proposal to

construct a hotel started. The records of the case clearly demonstrate that for

the purpose of construction of hotel the defendants not only sought for but

also were granted additional lands. They took permission for construction of

the hotel from the appropriate authorities.

In this connection, it will be relevant to notice the following

important documents:-

1.

24-6-76 to

22-7-76:

Ex. P-24, P-25 and P-26 are extracts taken out

from N.S. page 29 of File No.4(6)1962-63, 76-77

which contain the request of Managing Director,

Denzong Cinema Ltd., Gangtok for grant of

permission for running a hotel in the extension of

the back side block of cinema premises and for

diversification of investment of the Denzong

Cinema towards hotel business and the

recommendations of the Secretary, Finance, Chief

Secretary and the Chief Minister thereon.

2.

24-7-76

Ex. P-23 is the letter written by Secretary,

Finance, Government of Sikkim to the Managing

Director, Denzong Cinema Ltd. informing that the

Government of Sikkim gave its concurrence to

their proposal for running of a hotel. The

Management was requested to obtain formal

permission therefor.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

3.

23-8-76

Ex. P-1 is the letter from the Managing Director,

Denzong Cinema Limited to the Chairman, GMC

for according permission for extension to the

present construction of Denzong Cinema complex

to construct a tourist hotel.

4.

23-8-76

Ex. P-1 contains the comments offered by the

Executive Officer of the GMC, recommending

the proposal of extension to the present

construction of Denzong Cinema complex.

5.

10-9-76

Ex. P-2 is the site plan for addition and alteration

to the Hotel Building (5th and 6th floors) which

was approved by the GMC.

6.

15-9-76

Ex. P-3 is the letter from the Executive Officer,

GMC to the Managing Director, Denzong Cinema

Ltd. informing that GMC approved their BP

Building Plan and permitted construction on

certain terms and conditions.

7.

7-12-76

Ex. D-20 is the letter from the Under Secretary,

Local Self Govt. Dept. Gangtok, to the Managing

Director, Denzong Cinema Ltd. conveying the

proposal to allot a site measuring 43' x 10' and

24' x 30' for hotel behind Denzong Cinema.

8.

7-1-77

Ex. D-11 is the letter from the Joint Secretary,

Local Self Government Department, Gangtok to

M/s Denzong Cinema Ltd. allotting additional site

for extension of the hotel under construction.

9.

18-1-77

Ex. P-11 is the letter of the counsel for the

appellant to Respondent No. 1 regarding

encroachment of his client's land. (Note that

there is no complaint regarding encroachment into

Private Estate)

10.

27-1-77

Ex. P-12 is the letter for an on behalf of Prince

T.G., Vapshi Yuthok to the Secretary, Local Self

Government, Gangtok, regarding encroachment

on the boundary of Yuthok building:

(Note that no complaint that construction was on

Private Road).

11.

29-01-77

Ex. P-10 is the letter of P.W.2, Executive Officer,

GMC to the District Magistrate, Gangtok

regarding violation of approved BP Plan and

unauthorized construction. (Note no mention of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

encroachment on Private Estate: Only complaint

is that construction was being made not according

to approved plan).

12.

31-1/2-2/77

Ex. P-13 contains notings of the Chairman, GMC,

E.O., D.M.: BP plan for construction of the hotel

on the additional site was approved by the GMC.

13.

31-1-77

Ex. D-1 is the letter from the Executive Officer,

GMC to M/s Denzong Cinema Ltd, Gangtok.

P.W. 2 communicated approval of the BP Plan to

the Defendant.

14.

5-2-77

Ex. D-4 is the copy of the BP plan as sanctioned

by the GMC

15.

18-3-77

Ex. P-15 is the letter from Respondent No.2 to the

Minister for Local Self Government, Sikkim.

Defendant complained to GMC regarding

removal of barbed wire fencing from the gully.

16.

19-3-77

Ex. P-15 is the noting of E.O. Endorsement on

the letter by the Chairman that the gully belonged

to the Government, and as such unauthorized

construction of barbed wire fencing has to be

removed at the earliest.

17.

30-6-77

Ex.D-2 is letter from P.W. 2, Executive Officer of

GMC, enclosing therewith a report of the

Corporation Engineer. D-3 is the report of the

Corporation Engineer indicating that construction

of the hotel Building and the ramp are according

to plan.

18.

12-10-77

Ex. D-12 is the rough sketch of the site allotted to

Respondent No.1 by the Government on 7.1.1977

and D-13 is the letter from the Under Secretary,

Local Self Government Department, Gangtok to

Respondent no.1 forwarding the same to him.

The High Court discussed the evidence brought on records by the

parties in great details. On cogent and sufficient reasons it did not accept the

statements of the witnesses examined on behalf of the plaintiffs. Relying on

or on the basis of various documents, it came to the conclusion that even if

the private estate said to be belonging to late Chogyal had any interest in

Plot Nos. 1010 and 1013, the same was acquired by the Government and,

thus, ceased to be the private estate on and from 1959. The High Court

further took into consideration various documents as to how the Government

had treated Plot No. 1040 as belonging to it and not to the 'estate', both

before and after merger of Sikkim with Government of India. It, as noticed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

hereinbefore, further held that the constructions raised by the defendants

were within the land settled in favour of the respondents by Exhibits D-9, D-

10 and D-11.

The High Court in its judgment also took into consideration the report

of the Second Advocate Commissioner and relied thereupon.

The plaintiffs claimed title over the suit land on the basis of their title

thereupon and not on previous possession. Their case, thus, must stand or

fall on their own pleadings. As indicated hereinbefore, the plaintiffs

proceeded on the basis that they were owners of a part of Plot No. 1040.

They did not specify the extent thereof. They did not say how and to what

extent a part of Plot no.1040 belonged to them. They did not question the

settlements made by the Sikkim Darbar in favour of the respondents and

various other persons. In fact, the plaintiffs' predecessor held shares in the

defendant No. 2 company. In the facts and circumstances of the case it was

obligatory on the part of the plaintiffs to prove that the lands allegedly

encroached upon by the defendants belonged to them. Plaintiffs have

miserably failed to prove the same. Furthermore, indisputably the bazar area

had been acquired by the Sikkim Darbar. Mr. N.K. Rustomji, who was

Diwan of Sikkim at the relevant time, examined himself as witness No. 6 for

the Plaintiffs. He in no uncertain terms stated:

"I understand the meaning of 'acquisition'. The

heading of the file as given on page of the note is

"Acquisition of private estate land for Gangtok

Bazar and payment of lumpsum compensation Rs.

1,50,000/- to the Private Estate".

The other documents referred to hereinbefore, namely, Exhibits D-7,

D-14, and D-23 to D-23/12 are also clear pointers to the fact that certain

properties over which late Chogyal of Sikkim had been claiming right as its

private estate were acquired by the Sikkim Darbar of which he was the head.

The owner of the land accepted the amount of compensation without any

demur whatsoever and in that view of the matter he as well as his successors

in interest are estopped and precluded from contending that the said

properties did not vest in the Sikkim Darbar and consequently in the

Government of India.

The submission of Mr. Sanghi to the effect that the plaintiffs

continued to have title in respect of the lands in question despite acquisition

thereof must, therefore, be rejected.

It is not in dispute that Sikkim prior to its merger with the Union of

India was a sovereign State. Chogyal was the owner of the entire properties.

Evidently the lands were recorded in different names. If Chogyal of Sikkim

exercised his right of 'Eminent Domain' in relation to the suit properties

which were said to be belonging to his private estate, no registered deed of

sale was required to be executed in his favour.

In any event, once the said lands are held to have vested in the Sikkim

Darbar, the same consequenty vested in the Government of Sikkim for the

purpose of the Government.

The khasra and khatian have not been prepared under a statute. The

question as to whether the same would be historical material or instrument

of title or otherwise, would depend upon either the statute governing the

same or the practice prevailing in the State. In the event, however, the

records of right were not prepared under a statute, a presumption of

correctness may be raised only in terms of Section 35 of the Indian Evidence

Act.

However, ordinarily records of right cannot be treated to have any

evidentiary value on the question of title inasmuch as such records are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

prepared mainly based on possession.

The entries in the Khasra (Exhibit P-36) must, therefore, be construed

keeping the aforementioned principles of law in view.

In Sita Ram Bhau Patil (supra), this Court held :

"With regard to the record of rights Counsel for

the appellant said that presumption arises with

regards to its correctness. There is no abstract

principle that whatever will appear in the record of

rights will be presumed to be correct when it is

shown by evidence that the entries are not correct.

Apart from the intrinsic evidence in the record of

rights that they refer to facts which are untrue it

also appears that the record of rights have

reference to the mutation entry that was made by

the Circle Officer on January 30, 1956. Counsel

for the respondent rightly contended that no

presumption could arise for two principal reasons.

First, the oral evidence in this case nullified the

entries in the record of rights as showing a state of

affairs opposed to the real state of affairs and,

second, no notice was ever given to the respondent

with regard to mutation proceedings. Therefore

the respondent is right in contending that no

presumption can validly arise from the record of

rights."

Having regard to the fact that the plaintiffs never claimed any right

over the entire Plot No. 1040 and further having regard to the fact that only a

toilet was said to have existed thereupon, as also having regard to the

subsequent events which took place, namely, acquisition of land, we are of

the opinion that the entry in Exhibit P-36 is not of much value for the

purpose of showing that the plaintiffs continued to have title over the said

property.

Furthermore, the plaintiffs claimed title over the suit land. The trial

Court in a case of this nature was bound to enquire or investigate into the

question of title and could not have decreed the suit merely on the basis of

the entries in the revenue records [See Nagar Palika Vs. Jagat Singh

(supra)].

For the reasons aforementioned, we are of the opinion that no case has

been made out for our interference with the judgment and decree under

appeal. This appeal is, therefore, dismissed but in the facts and

circumstances of the case, there shall be no order as to costs.