2003 Supreme(SC) 142

2003(4) Supreme 266
SUPREME COURT OF INDIA
(From Sikkim High Court)
CJI and S.B. Sinha, AR. Lakshmanan, JJ.
M.T.W. Tenzing Namgyal & Ors. -Appellants
versus
Motilal Lakhotia & Ors. -Respondents
Civil Appeal No. 9265 of 1995
Decided on 5-2-2003
Counsel for the Parties :
For the Appellants : G.L. Sanghi, Sr. Advocate, Shri Narain, Sandeep Narain, T.B. Thapa, Bhuvnesh Kumari, Ms. Anjali Jha for M/s. S. Narain and Co.
For the Respondents : Jayant Mitra, Radha Rangaswamy, Bhaskar, P. Gupta, A.T. Patra, Sanjiv Sen, N.K. Malhotra for M/s. O.P. Khaitan & Co.

IMPORTANT POINT
As plaintiffs have miserably failed to prove title to the lands allegedly encroached by the defendants, their suit for possession and permanent injunction was rightly dismissed by the High Court.

Headnote:Suit for permanent injunction-Defendants starting construction of a hotel on land settled in their favour by Exts. D-9 to 11-Plaintiff as successors of erstwhile Rulers of Sikkim alleging illegal encroachment on their plot No. 1040 seeking recovery of possession and injunction-Decreed by District Judge but dismissed by High Court-Appeal to Supreme Court-Plaintiff never claimed any title to suit land-Subsequent acquisition of land-Entries in Khasra Ex. P-36 not proving title on suit land-No title proved-High Court was right in dismissing suit-Appeal dismissed-(Constitution of India)-Article 371F(h)-Special provisions regarding State of Sikkim.

       Held : The plaintiffs claimed title over the suit land on the basis of their title thereupon and not on previous possession. Their case, thus, must stand or fall on their own pleadings. As indicated hereinbefore, the plaintiffs proceeded on the basis that they were owners of a part of Plot No. 1040. They did not specify the extent thereof. They did not say how and to what extent a part of Plot No. 1040 belonged to them. They did not question the settlements made by the Sikkim Darbar in favour of the respondents and various other persons. In fact, the plaintiffs predecessor held shares in the defendant No. 2 company. In the facts and circumstances of the case it was obligatory on the part of the plaintiffs to prove that the lands allegedly encroached upon by the defendants belonged to them. Plaintiffs have miserably failed to prove the same. Furthermore, indisputably the bazar area had been acquired by the Sikkim Darbar. Mr. N.K. Rustomji, who was Diwan of Sikkim at the relevant time, examined himself as witness No. 6 for the Plaintiffs. He in no uncertain terms stated:

       "I understand the meaning of acquisition . The heading of the file as given on page of the note is "Acquisition of private estate land for Gangtok Bazar and payment of lumpsum compensation Rs. 1,50,000/- to the Private Estate".

       The other documents referred to hereinbefore, namely, Exhibits D-7, D-14, and D-23 to D-23/12 are also clear pointers to the fact that certain properties over which late Chogyal of Sikkim had been claiming right as its private estate were acquired by the Sikkim Darbar of which he was the head. The owner of the land accepted the amount of compensation without any demur whatsoever and in that view of the matter he as well as his successors in interest are estopped and precluded from contending that the said properties did not vest in the Sikkim Darbar and consequently in the Government of India. 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. 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 exercised 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. 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. 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. 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. The entries in the Khasra (Exhibit P-36) must, therefore, be construed keeping the aforementioned principles of law in view. In Sita Ram Bhau Patil (supra), this Court held:-

       "With regard to the record of rights Counsel for the appellant said that presumption arises with regards to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on January 30, 1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings. Therefore, the respondent is right in contending that no presumption can validly arise from the record of rights."

       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. 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)]. 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. This appeal is, therefore, dismissed but in the facts and circumstances of the case, there shall be no order as to costs. (Paras 27 to 37)