Case: M.T.W. Tenzing Namgysl  Vs. Motilal Lakhotia

The appellants herein are successors in interest of late Chogyal Sir Tashi Namgyal of Sikkim.2. 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 followingrecovery 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 1 feet wide passage of 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 suit;(e) any other relief or reliefs to which the plaintiff may be found entitled to under law andstated, the said suit was filed on the following allegations:3. 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.4. 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.2.5. 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 sought of his land being Plot no. 1040 and allegedly the defendants illegally encroachment upon about 6,600 sq. ft. therein.6. The defendants filed their written statement denying and disputing the allegation 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 though in their exclusive possession. The defendants claimed settlement of their land by reasons of three documents which were marked as Exhibits D-9, D-10 and D-11 of the years 1961, 1975 and 1977 respectively.7. 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.8. Pursuant to or in furtherance of the said direction contained in the said judgment, the learned 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.9. 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, 1994.10. The appellants are before us in appeal questioning the correctness or otherwise of the said judgment.

Reasoning: 19. 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.20. We, therefore, may proceed on the assumption that the said finding of the High Court is incorrect.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.30. 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 exercises 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.31. In any event, once the said lands are held to have vested in the Sikkim Darbar, the same consequently vested in the Government of Sikkim for the purpose of the Government.32. 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.33. However, ordinarily records of right cannot be treated to have any evidentiary value on the question of title inasmuch as such records are prepared mainly based on possession.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.37. 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)].38. 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.