lN THE HIGH COURT OF SIKKiM 0F]DEFt SHEET R ,F ,A . Ij7- 1 Versus a sECRETAR¥. t7r"H[> & Arryr.Imp .„ ..... No. 4 of 2oo4 Petitioner / Appellant Bespondent Order with Signature Off ice Note as to action (if any) taken on Order Heard rm. a. Sharma. learned counse for the appellarit,. Achlt the appeal. _Call for the records. I-et usual notice be issued upon the respondents to §ho cause as to why the impugned -judgment and order passed by the learned Dlstrlct Judge. East & North Slkklm ln Title Suit Tto.12 o£ 2003 sh6uld not be set aside as prayed for or why afin# such order or orders should not be Qrfu passed as.deems it £1t and prooer. No forma notice ls called for. 1n respect of the respondent No.1 as the learned Govt. Advocate receii/es. notice. 'However. ur. Shama, learne coulsel £6r°the appellant Shall supply a cop of mert`o of appeal to ur. Pradhan, learned Govt. Ad`rocate during the course of the day and the appellant ls required to take Step for service of notice upon the respondent No.2 wlthln three days, and the notice ls mad returnable on 22-12-2004. List this case ori 22-12-2oo4 for necessary orders. N. LLLnd` ow ohlr-".O#c 2= nzEEEE Qc.~L`9Lcc`.`` apqu - 4y##wh ( v,s o Actln S1ngh) 1ef Justice rsr/ •ialOf(ier2.23.1 DateofOrder Order with Signature raoc:::cne(yoat:ya+,3 atakenonOrder -12-20r:sr:/ 4 Heard rtr. 8. Sharma. learned coun el-`: --'--:-::_+, for the appellant. Mr. ®.a. Pradhan. learned Coat. Advocate for r`esporident No.1 and also rm. P.n. Sunar, resporident No.2 who ls present in person. / The apDella,|t shall Ire,bare the Paper Bt>ok wlthln' a~ period of bne month. After preparation of the Papp4 Booh. the / quoI__ appellant shal.I supply. the/Copies of it , :::::sP::=:asve'-la/totheRegi8try I The m`atter bg/' listed far hear-ing {, On 11-3-2005. . . 4ny N.,I I/,- / ig_ie:Tis :::,g::g?) / -3-200/rsI:/ Heard` Mr. a. Sh{i`ma, .learned counse for the appellant. ur. S.P. Wancrdl. , learned Advocate General assisted by Mr. r.a. Pradha Govt. Ad`rocate far respondent No.1 and in. N/ Rai. ,learned counsel for respondent No.2. Heard ln part. The matter be listed on 15-3-2005 for further hearing. I~n the mear`time. statu with regard to the suit land as on today aha be maintained by the parties. \ I N` 5:ie:=!fi::,:::I::) #. Serial I u Da,e Order with Signature Office Note as to No. ofOrder ofOrder action (if any)takenonOrder 4.155.1 3-2005rsr/3-2005Isr:/ Heard learned counsel for the parties. This matter pertains to 81ngle bench headed by Hon.ble Shrl Ju.qtlce N.r` Singh. His Lordship ls out of station on official tour. List thlB matter on 18-3-2005 £orJ``. 4£ further hearing. C.M.A. No.10/2005. Mr. a. Sharma. learned counsel for the appellant has £1led an apDllcatlon under order 26 read with Section 151 of the a.P.a. for appointment of an Amin Commissioner. Copy of the application has been served on the respondents through the learned counsel. The learned counsel for the respondents may £11e reply. If any, before the next date o£ hearing. (A. . subha)- Heard rm. 8. Sharma. learned counse for the aTtpellant. Mr. Karma Thlnlay and Miss G. Gajr`er. Iearried a.ovt. Advocates for respondent No.1 and Mr. N. Rai. learned counsel for respondent tto.2. .As prayed for by the learned counse for the parties, the Tnatter be listed on 7-4-2005 for hearing. ` N` (N. Surj ant S1.ighi~ Chief rust ce(Actlna) Off ice Note Order with Signature 6.7 -2005 C.M.A. No.10/2005. Heard Mr. 8. Sharma, learned counsel for the appellant, plalntiff in the original suit (Title Suit No.12/2003) and also Mr. Karma Thinlay Bhutia, 1eamed Govt. Adv6cate appearing for respondent No.1 and Mr. N. Rai, learned counsel for resp\ondent No.2. ` In this application, a prayer has been made by the ap.peilarit to appoint Amin Commissioner for ascertaining the identity of the suit rland by contendi'ng inter aha, that the respondent/defendant No.I allotted the schedule `8' land to the defendant No.2 and the .defendant No`2, respondent No.2 herein illegally started raising .construction in the suit land which forms part and parcel of plot No.416 as per old survey record 364 and, 365 as per new survey record and whereas, the case of. the respondents is action (if any) taken on Order '+ Serial t, Date Order with Signature Office Note as to No. of ot actjon (if any) Order Order taken on Order that the suit land is part and paree] of the plot No.409. Supporting the case of the appellant, Mr. 8. Sharma 1eamed counsel contended that without knowing the identity of the suit land, the trial Court had come to the conclusion that the suit land formed pat of plot No.409. As the identity of the suit land was not properly verified by the trial Court, tlie suit of tl)e plaintiff was dismissed M. Sharma contended. According to Mr. Sharma, leaned counsel, the trial Coulf should have got identity of the property established by issuing survey commiss].on but in the case in hand, the trial Cout failed to do it and as such survey commissl'on is necessary for ascertaining the Identity of the suit land. Supporting his submission, Mr. Sharma rehed upon the dec].s]on of the Apex Cout rendered in Shreepat - Appellant versus Rajendra Prasad & Ors. - Respondents reported ]n 2000(4)CCC68(SC)andhefurthercontendedtbatin a s]milarly situated case, the Apex Court set aside the ¢ Serial Date • .3).it.- Office Note as toaction(ifany)takenonOrder No. ofOrder otOrder Order with signature ,, concurrent findings of the trial Court as well as High Court as the Couts below failed to get the identity of the property established by issuing survey commission and the Supreme Cout remanded the case to the trial Court for disposal of it afresli. I have perused the decision/order of the Apex Court rendered in Shreepat - Appellant versus Rajendra Prasad & Ors.- Resopondents (supra). In my considered view, this order of the Apex Court does not help the case of the appellant/petitioner herein with the following reasons and order:- A bear perusal of the Exhibit 2 document which is trace map of the area concerned shows that eastern portion of the land under plot No.416 is Govt. land, but, the plaintiff claims the entire land under plot No.416 belongs to her. Be that as it may, before the allotment of ,the site was made, the authorityconcernednamelyUrbanDevelopment&Housing Department, Govt. of Sikkim verified about the ownership of the land i.e. the suit land at Ranipool. A serlal .._,Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order The document marked Exhibit J-1 established thefactumoftheidentityofthesuitlandandthis .- document is supported by the evidence of Smt. Diki Choden, DW No.4 who was working in the office of the District Collector, East as a Revenue Officer attherelevanttime.Bethatasitmay,theplaintiffdid not make any attempt before the trial Court for issuing survey commission as she songht for under this C.M.A. No.10/2005 before this appellate Court,, and,, over and above this, I am of the view that theappellant/petitionercouldnotmakeoutaprimafacie case for issuing the survey commission at this stage. In view of the above position, this Misc. Application is devoid of merit and accordingly, it is rejected. It is made clear that this order shall not give any effect to the merit of , the related appeal. t^ \ (NSAurAmanisinghr Chief Justice/Acting) Serial Date Order with Signature Office No#as to No. of of action (if any) Order Order taken on Order 7.19---T -2005 Listth\sappealonl9¢5$Oosforbetrling'as prayed for by the learned counsel for the parties. 1 ' TTTT w`-~ Q{. Sulj 1 singh) Chief Justic (Acting`Heardinpart. The matter be listed on 20-5-2005 for furtherhearing.}N. ---- Or. Surjam ni Singh) Chief Justice(Acting), / Serial Date Order with Signature Office Note as to No. o' of action (if any) Order Order taken on Order 8.2 -5-2005 Heard Mr. 8. Sharma assisted by Mr. Jagat Rai, learned counsels for the appellant, Mr. Karma Thinlay, learned counsel for respondent No.1 and Mr. N. Rai, leaned coulisel for respondent No.2. Today the parties have filed a deed of compromise in the following order:- "DEED OF COITROMISE This deed of Compromise is made this tile 19th day of May, 2005 at Gangtok.BETvmaENSliriPumaBahadurSunar, son of Shri Lal Bahadur Sonar, residlent of Ranipool, P/O-Ranipool, East Sikkim (hereinafter referred to as the lst party) on the one part.JoeSmt.Laxmi Bhandari, wife of late G.R. Bhandari, resident of Chota Singtam, P/O- Ranipool, East Sikkim (hereinafter referred to as the 2nd party) on the other part. Whereas the lst party and the 2nd party have been under the litigation and the 2nd party has filed the R.F.A. No.4 of 2004 before the Hon'ble High Court of Sikk].in which is pending for disposal. And whereas some good sense prevalled upon the parties and hence the lst party and the 2nd party have settled the matter amicably out side the Hon'ble Court on the following terms and conditions:- Order with Signature I . That the I St party shall pay a sum of Rs.6,000/- {]Feupt:±Se:txc:hm°pues::adt}o°nnlyi°h:he2{Zdndppatatyyba; execution of this Deed has acknowledged the receipt of the said sum of Rs.6,000/-qupees six thousand) only . 2. That the 2nd party or any other persons on her behalf shall have no claim whatsoever, over the buj]djng construction site a]]otted to the lst party by the Urban Development and Housing Department, Government of Sikkim, Gangtok vide allotment Order No.53/UD and HD dated 24-6-2002. 3 . That lst party and 2nd party jointly pray to the Hon'b]e Hlch Court of Sikkim for disposal of R.F.A. No.4 of 2004 in terms of this Deed of Compromise making this document as part of record. 4. The lst party and the respective hands on the date, liereinabove first mentioned. 2'`d party put their month, and the year Sd/- Illigible First Party. Sd/- Illigible Second Party." Apart from the deed of comprorise, the learned counsel appearing for the parties as well as the parties who are present today submitted that they had settled the matter amicably out side the Court for which they have submitted the deed of compromise. Off ice Note as to action (if any) taken on Order SerialNo.of Dateof Order with Signature Office Note as toaction(ifany) Order Order taken on Order This deed of compi.omise is hereby formed pat of ]A Lul. fund'.---__---'-_-::--_--i record and marked as `X' for identification. After proper application of my mind in this matter, this Court accept this deed of compromise entered between the parties. At the same time, this Court hereby recalled the old saying "Do not quarrel with the neighbours". The wise man finds his or her wealth in contentment not in terms of money. This Court, hope and trust that the parties shall follow this old saying and lead good relationship and harmony amongst themselves in the years to come. I am of the view that this Court is rendering substantial justice to the parties. Law should be flexible sometimes and it should not be read or interpreted rigidly in the matters which deserve for amicable settlement amongst the parties. Keeping in view of it, this Cout accept this deed of compromise between the parties and accordingly, the case is closed with the above observations. \ No order as to costs. \ it. qu. Surj ani singrty~- Chief Ju tice(Acting) :/ I ® DEED OF O0XPB0VISE This De.a of Con.proat8e ts d&aL&. thl6 th. 2o05 at esTigtde. BB"REH ;\h.£.;#,¢gr.\ GhTS Purm Bahaattr. SuT\fiar. Son of Shrt Lal Bahaaur Suutar.. r`e8.a.n€ of Baritpool. P/01ar.epool. East Stkkam (her®tr.after referred ±o as the 1St. partry) on the one pert. „P . - , Salt. Lag:a\& 87eendari,. totfe of late a.a.BhqnQart. re8t&ent ®f ¢hota Stng*cue. P/0-Bautpool: Za;i Sikk±n (he;elmf ;er -r;;-;;a;-to a8 the and. partg) on the other part. rh.reas the let. tart. and the and. aa,r.ty have been under the ltttgatSon and the 2nd. pertu has filed the R.I.A.\No. 4 of 2004 bef.r. ±h. Eor.'ble ELgh Court of SLkkln whfc;h ts pendfr.a for atspo8at. And apherea8 Some good 8en8e-preva±1eG upon She part&es and hence eke lst. par.ty and the 2na. 9artu haoe Seitied the natter an®oably ou¢ 8±ae the Hon'ble Oouri on the following termS and oondt tton8 s- I. Thot[the let. perty ehqll,pa,y a Qun of R8. 6.000/-(R#pee8 eta: ±houeqn&) 9nlu tor the and. Darty as Fthe-token: egnpensa,tson. The 2nd. Dartg bv` ea>eeutton of this Deed.ha. a¢knoxpleageQ the r.eoetpt of the 8q,Sd sea of R®. 6.000/- (ftype.8 SSai thousand) oiplg. 2. That the 2n4. pgrtv,or any oeh®r persoue on her behalf Shall haoe no ¢1at-a vl?atsoever. op.r tb. butlGtng ,¢onstru¢tloti 8tte allotted to the 1®€. pareg bu> th. Ur.an Deoe}oFT.nt end Hgussng` Departn®n±. eooer"eTtt. of ,Slkk&n. qaQgsok vt¢e \ allotH.eat ±Or&er Ho. 53/lJD art a dated.,2416/2002. ` r i:--,---;-.:--.-;:::-:-, ¢'o2¢.o 3_.. _ _mat lei. party and and. per.ty ]otrltlq pray to ihe Eon'ble a.1.a.h_ a.our: o! :untn for at8po8at of a.I.1. EO. ; Ot 2004 t; ;;is a, thlS Deed of ¢onproni±®e na,klng Shl8 doounen* a8 pa;i of re®ore-. The_ 18€. party and the 2rrd. panSy put th.tr re8DeoS{o. hands on the date. month, ar.a the wear her.etna.booe flr`St n.®ntt®r..a. -:`---- Ttrsi,i Pa,rt9.4 .I, r Second Partu. t ` •,