R.F.A. No. 08 of 2014 and C.O. No. 01 of 2015 in R.F.A. No. 08 of 2014. Case: Shiva Bahadur Dahal Vs Dambar Chettri and Ors.. Sikkim High Court

Case NumberR.F.A. No. 08 of 2014 and C.O. No. 01 of 2015 in R.F.A. No. 08 of 2014
CounselFor Appellant: S.S. Hamal, Tashi Wongdi Bhutia and Chunkila Bhutia, Advocates and For Respondents: N. Rai, Senior Advocate, Tamanna Chettri and Wangmu Bhutia, Advocates
JudgesMeenakshi Madan Rai, J.
IssueIndian Evidence Act, 1872 - Section 90
Judgement DateSeptember 18, 2015
CourtSikkim High Court


Meenakshi Madan Rai, J.

  1. This Appeal assails the Judgment and Decree of the Learned District Judge, Special Division-II, Gangtok, in Title Suit No. 14 of 2013 dated 31.3.2014, by which the Learned Trial Court dismissed the Suit of the Appellant. A Cross Objection has been filed by the Respondents No. 2 and 3, assailing the decisions of the Learned Trial Court in Issues No. 4, 8, 10 and 11. Both the Appeal and the Cross Objection are being disposed of by this Common Judgment.

  2. The facts shorn of details are that the Appellant (Plaintiff before the Learned Trial Court) is the son of Late Ratna Bahadur Dahal. The Respondents No. 1, 2 and 3 (Defendants No. 2, 3 and 4 before the Learned Trial Court) are his nephews being the sons of his sister, Pavitra Chettri, who was arrayed as Defendant No. 1 in the aforesaid Title Suit and passed away during the course of the trial, (Hereinafter referred to as Defendant No. 1). It is averred by the Appellant that the Defendant No. 1 was married twice, Respondent No. 1 being her son through her first husband, Gopal Chettri (Poudyal), while the Respondents No. 2 and 3 are her sons through her second husband, Deewan Singh Bora of Uttarakhand, whom she married in the year 1962 and resided with outside Sikkim, leaving behind Respondent No. 1 in the care of her father, Late Ratna Bahadur Dahal.

  3. That, Late Ratna Bahadur Dahal, owned several plots of land at 7th Mile, Samdur Block, East Sikkim including Plot No. 336 measuring.8640 hectares from which vide a Gift Deed dated 23.12.1989, land measuring.1330 hectares was gifted by him to the Respondent No. 1, inter alia with the Eastern boundary as hereunder;

    East - NH 31'A' & Sellers Dry Field (50' from the centre of the Road)...

    That, when spot verification was carried out for the purposes of registration, the boundaries of the gifted land were identified with the Eastern boundary being defined as;

    "East - From the centre of the NH 31'A' 50 feet for road reserve followed by Donor's own land measuring 128'x30' i.e. 3840 sq. ft...."

  4. That, subsequently without the Appellant's knowledge, the Gift Deed dated 23.12.1989 was registered and the gifted land mutated in the name of Defendant No. 1 (who had married a non-Sikkimese), in violation of the Sikkim State Rules Registration of Document, 1930. Consequently, there can be no registration or mutation of lands in the name of the Respondents No. 2 and 3. That, the document is interpolated.

  5. Ratna Bahadur Dahal also executed two separate Gift Deeds in favour of the Appellant's sons, Pradeep Dahal and Gopal Dahal, out of the same land, while the remaining area of.4810 hectares measuring 0.4750 and 0.0060 hectares were mutated in the Appellant's name after Ratna Bahadur Dahal's demise. No other Gift Deeds besides the above three, were executed by Ratna Bahadur Dahal.

  6. It is the Appellant's claim that in June, 2011 the Respondent No. 3, started constructing an RCC building on a portion of the Appellant's land measuring 128' x30' (Schedule 'B' land i.e. Suit Land), at the same time claiming another area of 128'x 23' (Schedule 'A' land), situated towards the East of his land as belonging to the Defendant No. 1, Respondent No. 2 and Respondent No. 3. This was objected to by the Appellants' sons vide a Complaint before the Respondent No. 4, who issued an order restraining the Respondent No. 3 from further construction. The Defendant No. 1 claimed the land to be her's and stated that portions thereof were subsequently partitioned and gifted by her to the Respondents No. 2 and 3, vide separate Gift Deeds registered on 18.2.2011 and prayed that the order be vacated.

  7. That, the Respondent No. 4 vacated the Stay Order inter alia, after arriving at an erroneous finding that the Defendant No. 1 and Respondents No. 2 and 3 had encroached an area of only 643 square feet of Pradeep Dahal's land when in reality they had encroached on both the Schedule 'A' and Schedule 'B' land.

  8. Hence, the prayer of the Appellant before the Learned Trial Court, for restoration of possession of the Schedule 'B' land to him to be vacated by the Defendant No. 1, Respondents No. 2 and 3, duly dismantling the building of the Respondent No. 3, and for other consequential reliefs as enumerated in Paragraph 40 of the Plaint.

  9. The Defendant No. 1 and Respondents No. 2 and 3, denied and disputed the allegations made by the Appellant and inter alia, contended that Deewan Singh Bora was not the second husband of Defendant No. 1 but only a family friend. That, the Gift Deed vide which Late Ratna Bahadur Dahal gifted land to Respondent No. 1 and transferred it in the name of the Defendant No. 1 in 1990, has been interpolated by insertion of the words "& Sellers d. fd " on the Eastern boundary by the Appellant. That, the Defendant No. 1 and the Respondents No. 2 and 3 infact claim adverse possession over the entire area measuring.8640 hectares under Plot No. 336. That, the house of the Appellant is at a distance of 50 meters from the construction of Respondent No. 3, therefore, it is unbelievable that the Appellant learnt of the construction only in June, 2011 when it had commenced in January, 2011. Hence, the Suit be dismissed.

  10. Respondents 1, 5 and 6 did not file any written statement before the Learned Trial Court.

  11. The Learned Trial Court settled twelve Issues for determination and after considering the verbal and documentary evidence on record, concluded that the Defendant No. 1 was not married to Deewan Singh Bora, neither were the Respondents No. 2 and 3 sons of Deewan Singh Bora. That, the portion of Plot No. 336 was gifted by Late Ratna Bahadur Dahal to his daughter Pavitra Chettri and not to the Appellant and the Gift Deed dated 23.12.1989 and the Gift Deeds dated 14.12.2010 in favour of Respondents No. 2 and 3 were valid documents binding on the Appellant. That, the Appellant was not a Citizen of Nepal. It was also found that the construction of the RCC building by Respondent No. 3 was confined to his share of.0385 hectares and was not within the strip of land measuring 128'x30'. That, the Defendant No. 1 and Respondents No. 2 and 3 cannot claim adverse possession over the Suit Land. That, the Suit was maintainable and summed up that the Appellant had failed to establish his case and dismissed it.

  12. Mr. N. Rai, Learned Senior Counsel, making his submissions on the Cross Objection, inter alia, assailed the decision of the Learned Trial Court on the Issues cited supra, on grounds that it suffers from non appreciation of facts and the Judgment passed against the Respondents in the said Issues be reversed and a Decree be passed in this Appeal in favour of the Respondents No. 2 and 3.

  13. The rival contentions of Learned Counsel on the Appeal and the Cross-Objection were heard at length and given due consideration. The evidence on record and documents relied on by the parties have also been perused and considered by me.

  14. The Issue No. 1 and 2 being interrelated were taken up together by the Trial Court and decided in favour of the Defendant No. 1, Respondents No. 2 and 3. The said Issues read as follows:-

    Issue No. 1:

    Whether Pavitra Chettri/Bora (since deceased)...

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