HIGH COURT QF SIKKIM ` .GANGTOK. Regular Second Ap|}eal No.02 of 2005 Chewang Dorjee Lama'.- RIO Shyari,, P.O.&P&S.Gangtck, . Eastsikkim. ` Versus Lerap Dorjee Bhutia & Ors, S/O Late Tempo Bhutia, R/O Namchi Bazar-, . P.O.& P.S.Name.hi South Sikkim. .....Appel.,ant. ....Respondents. SECOND APPF.At. » TliisAppealcomingupforfinalhearin8o+n21StdayofApril,2`006befQretheHon'ble Justice A.P.Subba, Judge of this Court in present:e of Shri K.T.Bhutfa, leaped Counsel assistedbyMs.BaldanaPradhan,1eamedCounselfortheAppellant,-Mr.A.MouliL:,leaned SeniorCounselassistedbyMr~N.G.SherpacounselforrespondentsNos.1to4. On hearing, the .ffippeal is al.lowed and tbTe Judgment dated 30/07/2005. and -D.ecreg dated 16/08/2t)05 of the lsT Appellate Cout is set aside, thus affiiining the Judgment and Pecieedated22/02/2005ofthetrialCoult. COST OF AP-PEAL - Appellant Amount ` Court fees . 2400.00 Stamp for memo of appeal 10.00 Stamp for power 02.00 - `Stamp` for petition. I Pleaders fee N/A Cost Respondents Amouiit •Slamp for power 2 Stamp for petition I 2 Pleaders,fee N/A. GivenundermyhandandsealoftheCoulfonthis`the2nddayofJune,,2006at Gangtok. ¥ ^Prepared by:- ouj±}\`Lbt GISTRAR IIIGII COURT 0F SIKKIM GANGTO1'¢. ` :-----=- r:.;i:l\.:j!;:{`,-'f rl . G4NGTOK. ' -=€ -.` •\1-..~ IN THE HIGH COURT OF SIKKIM Regular Second Appeal No. 2 of 2005 Chewang Dorjee Lama, Resident of Shyari, P.O. & P. S. Gangtok, East Sikkim. Versus 1. Lerap Dorjee Bhutia, S/O Late Tempo Bhutia, R/O Namchi Bazar, P.O & P.S. Namchi, South Sikkim. 2. Sachitanand Thakur, S/O Shri Ramsurat Thakur, R/O Namchi Bazar, P.O.& P.S. Namchi, South Sikkim. 3. Anil Thakur, S/O Late Jagar Thakur, R/O Namchi Bazar, P.O.& P.S. Namchi, South Sikkim. 4. Jawahar Prasad, R/O Namchi Bazar, P.O.& P.S. Namchi, South Sikkim. FA-' - -::-:--.`.:i - •.-Appellant ... Respondents ` 5. M. K. Rai @ Panchabir Rai @ Tinzir , Tinzir Busty, P.O. & P.S. Namchi, South Sikkim. ... Proforma Respondent. For the Appellant For the Respondents 1to4 Mr. K. T. Bhutia, learned Counsel assisted by Miss Neeru Sharma, learned Counsel. Mr. A, Moulik, learned Senior Counsel assisted by Mr. N. G. Sherpa, learned Counsel. es!,, +; r:+ ap ?e a fr--.-,, Present : The Hon'ble Shri Justice A. P. Subba, Judge. Date of Judgment : 02.06.2006 JUDGMENT A. P. Subba .2 plaintiff in Civil Suit No.2 of 2004 is the Appellant in this Second Appeal, which is directed against the Judgment dated 30.7.2005 and Decree dated 16.8.2005, passed by the learned District Judge, (South and West) at Namchi, in First Title Appeal No.1 of 2005 reversing the Judgment and Decree dated 22.2.2005 passed by the Senior Civil Judge, South Sikkim at Namchi in the above Civil Suit. The facts giving rise to the dispute between the parties, may briefly be stated as follows: - 2. The Appellant inherited landed properties covered by plot numbers 230, 231, 232 and 408 situated at Namchi Bazar, South Sikkim, on the demise of his late father Shri Tonyot Lama. Having joined service under the Government of Sikkim in the year 1954, the Appellant was always on the move on account of transfers and postings to different stations. For this reason and also for the reason that he had settled down in Gangtok, East Sikkim, during th? service period, the above land inherited by him at Namchi was left under the care and enjoyment of his only sister, Late Pempa Doma Bhutia and her late husband Tempo Bhutia. Since the said Tempo Bhutia lived as `gharjuwai', h`e and his wife late Pempa Doma Bhutia lived with Late Doma Bhutia, the mother of the Plaintiff/Appellant at Namchi in the wooden house built on rJa.qp plot No.231. In the year 1988, when the Appellant happened to be at Namchi for a brief period, on transfer to that place, the Respondent No.1 who is his nephew, being the son of his late sister Pempa Doma Bhutia, approached him for selling him the piece of land covered by plot No.231 on which a wooden house was constructed and in which they were living. Conceding to the reqLiest, the Appellant sold the said piece of land covered by plot number 231 along with the wooden house standing thereon to the Respondent No.1 by registered sale deed dated 2.11.1988. At the relevant time, it came to the notice of the Appellant that the Respondent No.1 had also raised some kutcha sheds beyond five feet of the piece of land sold to him. On objection being raised by the Appellant, the Respondent No.1 dismantled the str cture in the year 1991. In the year 2000, the Appellant came to know that the Government was acquiring some land for various developmental projects at Namchi and compensation was being paid for the same. Since the Appellant had land at Namchi, he made enquiries, and in course of such enquiry, he obtained certified copy of the sale deed and khatiyan parcha from the Office of the District Collector, South Sikkim, in respect of the land belonging to him. From these documents, it transpired that plot numbers 230 and 232 which were retained by the Appellant while selling away plot number 231 to Respondent No.1 in the year 1988, were also included fraudulently in the sale deed dated 2.11.1988, besides plot number 231 and after having done this, portion of plot No.230 was also sold to ==-==- ayF, Respondent Nos. 2 to 4. The Appellant also came to know that the Respondent No.1 had, by misrepresenting himself as the true owner, also received compensation paid by the Government in respect of the Appellant's land so required. On coming to know of all this, the Plaintiff/Appellant in the year 2004 filed a Civil Suit being Title Suit No.2 of 2004 in the.Court of the Civil Judge, (South ` and West) at Namchi against the Respondent No.1 a,nd four others for declaration, possession, injunction and other consequential reliefs in respect of the plot numbers 230 and-232 situated at Namchi Bazar, South Sikkim. 3. ]n the said suit, all the Respondents filed written statements. The Respondent No.1 in his separate written statement contended that the Appellant had sold Schedule `8' land (i.e., plot Nos.230 and 232), and plot No.231 along with the house in the plot No.231 vide, sale deed dated 02.11.1988 and had not only admitted the registration of the schedule land in the year 1988, but had also conceded that small portion of land which was missed out earlier was also included in the name of the Defendant. It was accordingly contended that the Respondent No.1 had acquired right, title and interest over the schedule property by virtue of registered sale deed and the Appellant's own endorsement dated 10.8.1995. It was further contended that the suit of the plaintiff/Appellant was also barred by principles of adverse possession. 4. The Respondent Nos. 2 to 4 in their joint written statements denied that `they had purchased the land from the r- ,.+ JP„ A---, Respondent No.1. They only claimed to be the tenants in occupation of the properties of the Respondent No.1 on rent. They however contended that the suit was barred by the law of limitation, non-joinder, mis-I.oinder of the parties, principles of waiver, estoppel and acquiescence. 5. In his separate written statement, the Respondent No.5 stated that he had extended his assistance as sought for by the parties for effecting registration of an old wooden house standing in the Appellant's land in favour of the Respondent No.1, on condition that the Respondent No.1 would break down the kutcha structure adjoining the house. He however denied any knowledge about the rest of the property in dispute. 6. On the basis of the above pleadings of the parties, the learned trial Court framed the following issues:- (I) Whetherthe plaintiff is absolute owner of schedule `A' property covered by plot Nos.230, 231 and 232 of Namchi Revenue BIock? (11) Whetherthe plaintiffsold only oplot No-.231 with a house thereon to defendant No.1 vide sale deed dated 02.11.88? (Ill) Whether the defendant No.1 fraudulently and surreptitiously inserted plot Nos.230 and 232 in the sale deed dated 02.11.88? (IV) Whether the defendant No.1 sold a portion of plot No.230 to defendant Nos. 2 to 4 if so, whether the transaction is valid or the defendants are in possession as tenants? (V) Whether the plaintiff is entitled to decl?ration for recovery of compensation paid to defendant No.1 by UD&HD for acquisition of portion of plot No.230? (VI) Whether the plaintiff is entitled to recovery of possession of plot No.232 and portion of plot No.230 as described in schedule `8' of the plaint? (Vll) Whether the defendant No.1 had acquired actual physical possession with right and title of suit property described in schedule `8' land ever since the execution of sale deed dated 02.11.1988? (Vlll) Whether the defendant No.1 perfected right, title over the schedule `8' property by adverse possession? (lx) Whether the plaintiff is entitled to relief claimed for? ' On consideration of the materials on record, and on -EE hi hearing the parties, the learned trial Court decreed the suit of the Plaintiff vide, Judgment and Decree dated 22.2.2005. On appeal being filed by the Respondent No.1 in the Court of the learned District Judge, (South and West) at Namchi, the learned District Judge set aside the Judgment and Decree passed by the learned Civil Judge. Aggrieved by the above Judgment and Decree passed J\,-~ by the First Appellate Court, the plaintiff/Appellant has come up in the present Appeal. 9. At the time of admission of the Appeal, the following substantial questions of law were framed: - 1. Whether the findings given by the first appellate`couri on the basis of the conclusions arrived at, are based on misreading of the evidence on record and thus perverse? 2. Whether the first appellate court placed the burden of proof wrongly on the appellant on any of the issues while deciding the appeal. I+ 10. Mr. K. T. Bhutia, learned Counsel assisted by Miss Neeru Sharma, learned Counsel appearing on behalf of the Appellant and Mr. A. Moulik, learned Senior Counsel assisted by Mr. N. G. Sherpa, learned Counsel appearing on behalf of the Respondent Nos. 1 to 4, were heard. 11. On the substantial question of law at sl.No.1 above, Mr. K. T. Bhutia, learned Counsel submitted that, while the findings recorded by the learned trial Court were based on proper appreciation of evidence on record, jt was not so in the case of the Judgment of the first Appellate Court. According to him, the impugned judgment does not display conscious application of mind and the findings recorded by it being based on misreading of evidence on rec6rd, were perverse and liable to be set aside, Mr. A. Mouilk, learned Senior Counsel, on the other hand, submitted that the plaintiff/Appe[lant was not entitled to any of the relief's, as the evidence adduced by him was insufficient to discharge the burden of proof, which lay on him, and to establish the case. It was, therefore, his submission that the Plaintiff/Appellant cannot be allowed to succeed on the weakness of the defendant's case, and as such, the Appeal was liable to be dismissed. 12. In support of the submission that the learned first Appellate Court misread the evidence, Mr. K. T. Bhutia, learned Counsel, drew the attention of this Court to the Parcha Khatian marked Ext.P1, the survey map (Ext.P2), the sale deed dated 2.11.1988 marked Ext.P3, and another Parcha Khatian produced by the Defendant marked Ext.B and contended that, these were E * I.- the documents which were misread by the learned second App?Ilate Court in arriving at the conclusions which are impugned. 13. In order to appreciate the above submission of the learned Counsel, it is desirable to refer to the above documents and also to reproduce the relevant part for convenience of reference, as follows: - The Parcha Khatian Ext.P1, shows the plot numbers along with area as standing in the name of Chewang Dorjee Bhutia, the Plaintiff/Appellant as follows:- Plot Numbers Hectare .1380 .0140 .0280 .0975 The map (Ext.P2) goes to show that plot numbers 231, 232 and 230 comprise of a compact piece of land, surrounded by the following boundaries: - East .... Dry field of Nak Tshering Lepcha West .... Dry field of Tshering Lhamu North..„ Dryfield ofBikden South .... Dry field of ongdup The sale deed Ext.P3 contains the following relevant particulars : - Name of seller -Shri chewang Dorjee Bhutia Nameofpurchaser -Shri Lerap DorjeeBhutia Description of property undersaletogether -An oldwooden house along with its boundary with the kitchen BOUNDARY:- East ...„ Dryfield ofNakTshering Lepcha &Self West.....Self North....Self South ... Dry field of Rinchen.Bhutia Khatian Plot No./Nos .„ 231, 230, '232. Area ..... 0.0530 Hects. The other Parcha Khatian (Ext.B) produced by the Defendant shows the following :- Plot Numbers Hectare 231 230/546 232/547 14. Having thus noticed the contents and particulars of the above documents, we may now see the extent of reliance placed on these documents by the Courts below, in support of the conclusions. Taking note of the particulars mentioned in the above sale deed, the two Parcha Khatians, as well as the survey map, with particular reference to the boundaries mentioned therein, the learned trial Court in paragraph 25 of the Judgment observed as follows: - "25.' ..... Therefore, logically from perusal of Exhibits-2 and 3 and after considering 1:he oral evidence on record it is clearly found that at the time of execution of Exhibit-P-3 plot Nos.230 and 232 were perhaps not included.............." 15. I-.-- The facts and circumstances on which the learned trial co, Court placed its reliance, in order to come to the view expressed above, as already noticed, are the boundaries and the description of the property given in the sale deed Ext.P3, more particularly the description "An old wooden house along with 10 kitchen." Also taken note of along with above circumstances is, the evidence of Djki Namgyal (PW2), that the old house along with the kitchen stands on plot No.231. 16. Regarding the boundary of the land and the evidence on record, the learned trial Court observed as follows: - `` Another interesting factor which appears in Ext.P3 is the description of the property under sale with its boundaries. It is simply described as "an old wooden house along with kitchen." Nowhere does the description .state that it includes any other property apart from "an old wooden house and the kitchen" which as per the evidence is only plot No.231. The description of the plot No.230 and 232 is nowhere in evidence in Exhibit-P-3. Next is 1:he boundary of allegedly sold plot Nos. 231, 230 and 232 measuring 0.0530 hectors. The boundary is indicated as follows: - East -D.F.ofNakTsheringLepcha and self, West - Self, North -Self, South - D.F. of Rinchin Bhutia. Therefore, what appears from Exhibit-3 is that plot Nos.231, 230 and 232 should have a dry field belonging to Nak Tshering Lepcha and plaintiff on the East, property of plaintiff in the West and North and the dry field of one Rinchen Bhutia in the South. When this is so compared to Exhibit-P-2 which is a certified copy of the map of showing the landed property of the plaintiff from the 1979-80 survey it is found that plot Nos.230, 231 and 232 have 1:he following boundaries: - East - West - North . South - Land of Nak Tshering, Land of Lalay and Tshering Lama, Land of Biden and Land of Ongdup. ^dL-~, Therefore, clearly the boundary of plot Nos.230, 231 and 232 taken together nowhere corresponds to the boundary as indicated in 11 17. Exhibjtlp-3. If indeed all three plot Nos. were sold vide Exhibit-P-3 then the boundaries on the west, North and South ought not to be reflected as that of plaintiff and Rinchen Doma. I,11,,,,,...-....-.,,111,,,, Thus, taking note of the above circumstances and the evidence on record, the learned trial Court while deciding issue Nos.2 and 3, came to the conclusion, that the Plaintiff sold only plot No.231 with the house standing thereon to Defendant No.1 vide, sale deed dated 2.11.1988 and that the Defendant No.1 fraudulently and surreptitiously inserted plot Nos. 230 and 232 in the sale deed dated 2.11.1988. 18. The learned first Appellate Court, on the other hand, while taking a different view on the above inaterials on record, firstly, took note of the area of the land, secondly, it took note of the boundaries of the land and thirdly, it took note of the conduct of the Plaintiff/Appellant, and on consideration of all these, came to the conclusion that the plaintiff had not been able to prove his case by clear and cogent evidence. The relevant observation, which occurs in paragraph 20 of the impugned I.udgment, is as follows: - " ..... Therefore I have not been able to comprehend myself with the findings of the learned trial Court. I find that the plaintiff has not been able to prove his case by clear and cogent evidence with regard to the facts pleaded in the plaint ......... „.." 19. RI= The reason given by the learned Appellate Court in support of the above conclusions, may be found in paragraph 12 of the impugned Judgment. It has been observed thereili` that, the area mentioned in the sale deed Ext.P3, is 0.0530 hectares, 12 whereas, plot No.231 mentioned in Parcha Khatian, Ext.Pl filed by the Plaintiff, measures only .0140 hectares and not 0.0530 hectares. However, as per another Khatian Parcha marked `8' filed by the Defendant No.1, the total area of the three plots of land i.e. plot Nos.230, 231 and 232 is 0.0530 hectares, as mentioned in the sale deed, and accordingly came to the conclusion that the measurement of the three plots of land given in Khatian Parcha Ext.B exactly corresponds with the measurement given in the sale deed. 20. As regards boundaries, the learned first Appellate Court observed as follows: - "Secondly, with respect to the boundaries also the plaintiff has similar problem. If he relied upon the map exhibit-2 filed by the plaintiff himself then the four boundaries of plot number 231 would be :- East : Land of seller, West : Land of seller, North : Land of seller and South : Land of seller. But if he contends that the correct boundaries of plot number 231 is as per the sale deed exhibit-3 then the same would be : - East : Dry field of Nak Tshering and self, West: Land of self, North : Land of self, South : Dry field of Rinchen Bhutia. 21. follows :- i-----, The learned Appellate Court has then observed as "Here the plaintiff has not been able to explain as to how and why the four boundaries mentioned in exhibit-3 do not tally with the boundaries shown in the map exhibit-2. 13 Neither the plaintiff could say that the four boundaries in the said sale deed exhibit-3 were false or fabricated nor the plaintiff could offer any explanation about the discrepancies with regard to the boundaries found in 1:he t\^/o documents." 22. The above conclusions of the learned Appellate Court have been assailed by the learned Counsel for the Appellant, on the ground that the reasoning given, is based on a total misreading of the evidence on record. It is his specific submission, that the case of the Respondent No.1 being that he purchased plot Nos. 230, 231 and 232, the total area of the land purchased by him would come to .1800 hectares and not 0.0530 hectares as held by the learned Appellate Court. It is his further contention that the plot numbers mentioned in the Khatian Parcha Ext.B, submitted by Respondent No.1, which the learned Appellate Court so heavily relied on, do not tally with the plot numbers mentioned in the sale deed Ext.P3 and similarly the measurement of the land also do not tally with each other. 23. The above submission made by the learned Counsel, I appears to be well suppQrted by the document and other materials on record. A perusal of the Parcha Khatian Ext.P1 (submitted by the Plaintiff/Appellant), shows that the plot Nos. 230, 231 and 232 which are recorded in the name of the Plaintiff/Appellant, measures .1800 hectares in total and not 0.0530 hectares as mentioned in the Sale Deel Exbt. P3). The measurement, 0.0530 of course, corresponds with the measurement of the three plot numbers, namely, plot Nos. 231, 230/546 and 232/547 given in the Parcha 14 Khatian (Ext.B), submitted by the Defendant/Respondent No.1. However, one cannot loose sight of the fact that the plot numbers mentioned in this Parcha Khatian (Ext.B), are different from the plot numbers mentioned in the sale deed Ext.P3, as well as in Parcha Khatian Ext.P1, with which we are concerned. Out of the three plot numbers which find mention in the Parcha Khatian (Ext 8), only plot No.231 corresponds with the corresponding plot number mentioned, while the other two plot Nos.230/546 and plot No.232/547 do not correspond with plot Nos.230 and 232. Therefore, even though the plot No.231 is identical, the other two plot Nos.230/546 and 232/547 not being plain plot Nos.230 and 232, go to suggest that these two numbers do not indicate and represent the plot Nos.230 and 232 in their original shape and it accordingly follows that the area of land falling within these plot numbers cannot be the whole area falling within the original plot Nos.230 and 232. It is, therefore, evident that the conclusion of the \ learned Appellate Court, that since the total measurement of the land covered by the three plots of land mentioned jn Parcha Khatian Ext.B comes to 0.0530 hectares and corresponds to the area mentioned in the sale deed (Ext.P3), the land sold must be area of the land covered by the plot numbers mentioned in the sale deed, would be contrary to the contents of the document on record. No reason has been given as to why and how the plot Nos.230 and 232, which find place in Parcha Khatiyan (Ext.P1) and sale deed (Ext.P3) both submitted by the Plaintiff/Appellant and the plot Nos.230/546 and 232/547 which find mention in Parcha Khatiyan 15 (Ext.B) (submitted by the Defendant/Respondent) can be taken as identical and as containing same areas of land. 24. No doubt, the area of plot No.231 as per Khatian Parcha Ext.P1, does not also correspond with the total area of the land mentioned in the sale deed (Ext.P3), but to say that for this reason alone, the area mentioned in Parcha Khatian (Ext.B) should be the one mentioned in the sale deed (Ext.P3), would not be in consonance with the materials on record. It is a well-settled rule of interpretation that, where there is conflict between boundaries and area, the boundary shall prevail over the area. Reference in this regard may be made to the decision of Madras Ltiigh Court .in Subbaya Chakkiliyan v. IVI. Muthia Goundan AIR 7924 Mac/ras 493 where it has been 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, £[§ rule of inter ref:ation is that boundaries must revail as a ainst the measurements„." (emphasis added). S.ir"arly .in T. Rajlu Naidu v. Nl.E.R.Ivlalak AIR (1939) rvagpur 797 it has been held as follows: - "ln case of a discre bet`^/een dimensions and boundaries 1:he area sDecifjed within the boundaries will whether jt be less or more than the auantitv specified." (emphasis added). From the above, it becomes clear that the well- established rule of interpretation is that, the boundary must prevail _iiiiii 16 d.-.~, over area in case of conflict between dimension and boundaries. Therefore, in order to ascertain the correct position, it would not be enough to consider only the plot numbers and its area. The boundary must also be taken into consideration. It would thus be necessary to make a reference to the description of the boundary mentioned jn the related documents, for coming to a reasonably correct conclusion on the issue. 25. The boundaries of plot Nos. 230, 231 and 232 mentioned in the sale deed, (Ext.P3), in the Parcha Khatian (Ext.1 ) and another Parcha Khatiyan (Ext.B), and the survey map (Ext. P2)