q`frir IN THE HIGH COURT OF SIKKIM AT GANGTOK Civil Revzslon Peanon No. 2 Of 2009. 1. Smt. Lhakila Tongden Lepcha, W/o La.te Rinzing Tongden Lepcha, At present resident of near Hotel Orchid, N.H. 31-A, Gangtok, East Sikkim, PIN-737101 2. Smt. Karma Sonam Choden Tongden Lepcha, D/o Late Rinzing Tongden Lepcha, At present resident of near Hotel Orchid, N.H. 31-A, Gangtok, East Sikkim, PIN-737101 3. Miss Tashi Ongmu Tongden Lepcha, D/o Late Rinzing Tongden Lepcha, At present resident of near Hotel Orchid, N.H. 31-A, Gangtok, East Sikkim, PIN-737 101 I ...Petitioners VERSUS[| Shri Passang Tongden Lepcha, S/o Late Nochi Tongden Lepcha, Residing near Hotel Orchid, 2nd Floor, N.H. 31-A, Gangtok, East Sikkim. ...Respondent Forthepetitioners: Mr. N.K.P. Sarraf and Mr. S.K. Sarraf, Advocates. For the respondent: Mr. K.T. Bhutia, Sr. Advocate with Ms. Bandana Pradhan, Advocate. Date of Hecutng: 26.05.2009 Dcite of Judgment: 26.05.2009 PRESENT: HON'BLE THE CHIEF tJUSTICE MR. JUSTICE AFTAB H. SAIKIA JUDGMENT ANI) ORI)ER IORALl Heard Mr. N.K.P. Sarraf (Senior) and Mr. S.K. Sarraf, 1eamed Counsel appearing for the petitioners. Also heard Mr. K.T. Bhutia, learned Senior Counsel assisted by Ms. Bandana Pradhan, learned Counsel for the sole respondent. 2. The legality and correctness of the order dated 09.12.2008 passed by the learned District Judge (Spl. Div. - I), Sikkim in Title Suit No. 07 of 2004 have been questioned in this Revision Petition. 3. The facts of the case, in a short compass, are that the petitioners as the plaintiffs filed a suit for declaration, recovery of possession and consequential reliefs against the respondent, who was defendant in the said suit filed by the petitioners. The suit of the plaintiff has been pending for disposal before the learned District Judge, Special Division-I, Sikkim, Gangtok as Title Suit No. 7 of 2004. 4. It is pleaded in the plaint that one Shri Rinzing Tongden Lepcha is the absolute owner of the suit property fully described in the plaint, and the plaintiffs being' the Legal Heirs and successors of the deceased Rinzir.g Tongden Lepcha, they become the absolute owner of the suit property and entitled for recovery of possession. The defendant/ respondent (hereinafter called as "the respondent") herein have filed the written statement and claimed to be the owner of the suit land by virtue of a partition that took place in 1991. 5. The parties have led their evidence, however, thereafter, the plaintiffs ha.ve procured certain documents and desired to file the said documents for the adjudication of the case. The plaintiffs have accordingly filed an application under Order VII, Rule 14 (3) read with 11 Section 94 and 151 of the Code of Civil Procedure. 6. In the meantime, the respondent herein, has also filed one application under Notification No. 2947/G, dated 22.11.1946 praying I.nter czZz.cz for the grant of permission for validation and admission of Exhibits - `A', 8' and `C', already exhibited, on payment of a penalty of fifty times the usual registration fee, which were unregistered and executed in 1955,1971 and 1991n 7. The petitioners herein have filed their objection to the application filed by the respondent. 8. The learned District Judge, Special Division-I, Sikkim, Gangtok having entertained the liapplication filed by the respondent, by the impugned order dated 09.12',.2008, has allowed the petition opining that the said document may be registered as provided by the notification. 9. Assailing the order dated 09.12.2008, Mr. Sarraf (Senior), the learned Counsel for the petitioners has forcefully contended that the impugned order has no leg to stand on the sole ground that when the respondent has himself made a prayer in his application to grant permission allowing him to deposit fifty times penalty in the form of stamps for the purpose of validation and admission of the unregistered document, the learned Judge has, by the impugned order, provided for ))T registration of the said document without application of its mind and the I same is manifest on the face of the impugned order itself. 10. Relying on the notification dated 22.11.1946, the learned Counsel has submitted that the said notification permits for validation and admission of an unregistered document for the purpose of proving the title and other related matters by way of payment of penalty upto fifty times of usual registration fee. However, the learned Judge having lost sight of the said provision, by the impugned order has opined that the said document may be registered as provided by the notification, which is totally not permissible by the notification itself. 11. Besides, Mr. Sarraf (Senior), the learned counsel for the petitioners has also argued that the impugned notification itself has lost its force in terms of the views expressed by this Court in a case of Bt.shmt Kztmc{r Rat I/s. Mz.rior Mahendrcz Bz-r Lczrricz cz7tcz Ors. reported in AIR 2005 Sikkim 33. According to him, the Division Bench comprising of Justice N.S. Singh, the then Chief Justice (Acting) and Justice A.P. Subba, of this Court in Bishazt Ku7riczr Rcz£'s case (supra), clearly and specifically has declared that both the notifications dated 11.04.1928 and 22.11.1946 have been repealed and they shall be non-est in the State of Sikkim. To substantia.te his submission, he has basically relied upon the observations made by this Court in paragraph 13 to the extent that: "But, in the case in hand, we are of the view that this document Exhibit D-1 could not be validated or admitted in Court to prove the title or other matters contained in the document on payment iof penalty as discussed above as such document could not be registered as sale deed even the appellant desires to avail the protection of his case by the said notifications dated llth April,1928 and 22nd November 1946. According to us, such notifications cannot override fro 11 12. the related statutoryi provisions of the Transfer of Property Act, 1882." In view of the above observations as well as taking note of the impugned order itself, it is submitted by the learned Counsel that this impugned order deserves interference of this Court and accordingly the same is liable to be quashed. 13. F`or the sake of convenience, the two notifications dated 11.04.1928 .and 22.11.1946 referred to in Bz.s7i7" Kumar Ra!'s case (supra) are reproduced as under: "SIKRIM STATE GENERAL b ERARTMENT Notification No. 385/G; All Kazis, Thekadars arid Managers of Esta.tes. In continuation of the previous rules on the subject, His Highness the Maharaja of Sikkim is pleased to order that the Law of Registration abi]licable in the State shall be amended. Notification No. 314 and 2283-36/G., dated the 23rd January, 1907 and 19th July, 1922, respectively shall be read and applied under: - "Any document such as mortgage and sale deeds, and other important documents, and deeds, etc. will not be considered valid unless they are duly registered. The conten.:s of an unregistered document (which ought in the opinicin of the `Court to have been registered) may be provided in Court but a penalty upto fifty times the usual registration fee shall be: charged. Exception: Handnotes quly stamped shall be exempted from registration penalty." BY ORDER OF HIS HIGHNESS THE MAHARAJA OF SIKKIM. Gangtok The.llth April, 1928. Gyaltsen Kazi, General Secretary to H. H. the Maharaja of Sikkim." "SIKKIM STATE GENERAL D EPARTMENT Notification No. 2947 G. Amendment of para 2 of Notification No. 385/G dated the 1 ith April, 1928. An unregistered document (which ought in the opinion of the court to have been registered) may however be validated and admitted in court to prove title or other matters contained in the document on payment of a penalty upto fifty times the usual registration fee. Issued by order of H.H. the Maharaja of Sikkim. Gangtok The 22nd Nov., 46 T. Tsering (Offs) General Secretary to H.H. The Maharaja of Sikkim" 14. In support of the impugned order and basically refuting the statements and contentions as regards the repealment of the two notifications as indicated hereinabove in BisJtmJ KtJmar Rc{{'s case (supra), Mr. Bhutia, the learned Senior Counsel has argued that at no point of time these two notifications above mentioned have ever been repealed in terms of the ratio of Bishmu Kztmczr Rczz.'s case (supra). His main thrust is that after passing of this Judgment of the Division Bench of this Court, the issue has again been brought before the Court for the clarification as to' whether by Bish7ur Kztmczr Raz's case (supra), both the notifications mentioned hereinabove, have been repealed or not. 15. Making clarification in this regard, this Court in a Single Bench comprising of Honble A.P. Subba, J. who was also a party in Bishntt Kumc{r Rcz£'s case, in Civil Revision Petition No. 7 of 2006 (Kttz Bahadur Gurung us. Gdyendra Gurung and othei-s| disposed o[ on 14.12.2006, in paragraph 17 has held that by BishJ" Ktt7Jtczr Rcri's case (i+ -.9 (supra), the two notifications are not repealed. In paragraph 17, it is observed clearly as under: "17. It would thus be clear from the above, that the observation made by the Division Bench in Bishnu Kumar Rai's case (supra) being against a different background, cannot be taken to ha.ve repealed the two Notifications. The first point is accordingly answered in the negative." 16. At this stage, Mr. Sarraf (Senior) has submitted that he has not argued on the point that both the notifications have been repealed, but his primary submission is that the two notifications have lost its force after the operation of the Transfer of Property Act, 1882 in the State of Sikkim. 17. Having considered the clarirication made in the Kttz Bcihadztr Gztrttng's case (supra), this Court is not prepar?d to be persuaded by the submission of Mr. Sarraf (Senior) to the effect that the Court in Bishatt Kztmar Ra£'s case (supra) has had the intention to make both the notification non-est. It is clarified in the discussion made in Kztz Bandztr GZJ"rig's case that particular order or observation was made in Bishmu Kumczr I?czi's case (supra) taking into the peculiar circumstances of the case therein. It is accepted that each and every case is founded on its own facts and circumstances. 18. That apart on a pointed query, the learned Counsel for the parties at the bar have submitted in chorus that the Judgment in Kztz Bahadttr Gw"7ig's case has not been taken before any higher forum and in that view of the matter, this Judgment of Kttz Bc{hac!zJr GZJ"7ig has attained its finality. 19. That being the position, this court is disinclined to entertain the submission that these two notifications have lost its force. 20. Now coming to the impugned order, it is seen that a bare reading of the order itself would go to apparently indicate that the trial Court has` opined for registration of the document which has not been at all sought for by the respondent in his application. 21. It would be apt and convenient to reproduce the application so submitted by the respondent seeking protection under the notification dated 22.11.1946. The same reads as under: "IN THE COURT OF` LD. DISTRICT JUDGE (SPECIAL. DIVISION -I), EAST SIKKIM AT GANGTOK. T.S. No. 7 of 2004 Mrs. Lhakyla Tongden Lepcha. and others VERSUS Shrii Passang Tongden . . . Plaintiffs . . . Defendant AN APPLICATION UNDER NOTIFICATION No. 2947G DATED 22nd November 1946 UNDER THE SIGNATURE 0F THE GENERAL SECRETARY T0 HIS HIGHNESS THE MAHARAJA OF SIKKIM. The humble defendant/ applicant named above, MOST RESPECTFULLY SHEWRTH: 1. That the above title suit is pending for disposal in this Honfole Court and toda.y is the date fcked for filing of objection by the defendant. 2. That that defendant has exhibited the partition deeds of 1955, 1971 and 1991 and marked as Exts A, 8 and C respectively. The said exhibits which are in original are not registered in the Ofrice of the concerned Sub-Registrar. Hence, the instant applica.tion to grant permission to the humble defendant to pa.y the penalty of fifty times the usual registration fee under the aforesaid notification necessary for \ validation and admission ofi,\the above mentioned exhibits in this Honble court. I I In the circumstdnces mentioned above it is most fervently prayed that 'i'',Your Honour may be pleased :::eungdhan:°togdre¥sitpeag`fi:fs;°Em::Opt:£tyT:thh:Fo:£ of stamps in the interest of justice. And for which act of kindne!s, the humble defendant shall ever pray. lil Gangtok Da:led:. 2 / 7 / 08 . Filed by Ill (Pa'ssang Tongden, Defendant) I VERIFICATION I, Passang Tongden, the defendant do hereby verify that the statements made in paragraphs 1 and 2 are true to the best of my knowledge and I sign this verification on the 2nd day of July 2008 at Gangtok, East Sikkim. (Passang Tongden, Defendant) " 22. It is explicitly mentioned'i'i in the application itself that the defendant has prayed for to grant permission allowing him to deposit the I fifty times penalty in the form of stamps in the interest of justice so as to make that unregistered document vapd and admissible in the Court of law to prove the title. However, the learned District Judge has opined I that "the said document may be registered as provided by the notirication".` It exhibits complete lack of application of judicious mind and accordingly We do quash the impugned order to the extent of directingforregistrationofthesaiddocinent. However, after hearing the leaned Counsel for the parties, •. 1- +La t`at.tipQ_ in theH interest of justice, to make a 23. this Court directs the Parties, in thei,I interesi I,I ju .... „ ._ __ paymentasapenaltyofflftytimesthe'usualregistrationfeebeforethe competentauthorityvithinaperiodofrifteendaysfromtoday. i, 10 1\ 24. At this stage Mr. B,hutia, learned Senior Counsel has informed that he has already depo±ited the penalty amount of fifty times I I the usual registration fee which is not objected by Mr. Sarraf, the leaned 11 Counsel (Senior) for the petitioner ih his all falmess. Consequently, this Court accepts the submission of the\ leaned Senior Counsel representing Ill the respondent. 25. In view of what has been stated, observed and discussed \ above, this Civil Revision Petition stands disposed of. \ 26. However, there shall be np order as to costs. 27. Send down the LCR forthwith. jks Chief iJustice.