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1985 Supreme(Sikk) 12
HIGH COURT OF SIKKIM
R. DAYAL
PEM CHODEN BHUTIANI - Appellant
Versus
RINCHEN DORJEE - Respondents
C. A. 6 Of 1985
Decided On : NOVEMBER 2, 1985
MANJU SHARMA, N.B.Kharga, R.B.Subba, R.K.AGRAWAL, V.J.RAO
The presumption of correctness of a mutation entry can be rebutted by evidence showing that the entry is not correct.
Headnote:
LAND DISPUTE - SUIT FOR DECLARATION OF OWNERSHIP AND POSSESSION - APPEAL AGAINST JUDGMENT AND DECREE - EVIDENCE - ORAL AND DOCUMENTARY - MUTATION ENTRY - PRESUMPTION OF CORRECTNESS - REBUTTAL - POSSESSION - BURDEN OF PROOF - ADVERSE POSSESSION - LIMITATION - FINDINGS OF FACT - INTERFERENCE BY APPELLATE COURT.
Fact of the Case:
The respondent filed a suit for declaration of ownership and possession of a plot of land. The appellants claimed title to the land through their deceased father, who was the second son of the original owner. The respondent claimed title through his grandfather, who was the original owner's third son. The trial court held the respondent to be the absolute owner of the land and also believed the respondent's case about peaceful continuous possession since 1938 and so decreed the suit. The appellants challenged the findings of the trial court on both points.
Finding of the Court:
The High Court held that the documentary evidence on record was of little probative value. The gift deed produced by the respondent did not relate to the land in question. The mutation entry in the name of the respondent was of little probative value as it was based on an application made by him in the year 1968 containing factually misleading statements, the report of the Mondal who could not be said to be an independent government functionary being the respondent's cousin, the no objection certificate from P. Wangyal again containing factually incorrect statements and the proceedings which also did not lack in misstating facts. The High Court also held that the oral evidence adduced by the respondent was not credible. The respondent had admitted in his cross-examination that he had paid rent in respect of the land in question until the date of his evidence. He also filed certain receipts in support of his statement. But none of these receipts contained any particulars to relate them to the land in question and so they were of no value and the oral testimony about the payment was not credible. The High Court further held that the appellants had proved their case of adverse possession. They had been in possession of the land for more than 26 years and had constructed two houses thereon. The respondent had not been in possession of the land at any time.
Issues: 1. Whether the documentary evidence on record was sufficient to prove the title of the respondent to the land in question? 2. Whether the oral evidence adduced by the respondent was credible? 3. Whether the appellants had proved their case of adverse possession?
Ratio Decidendi: 1. The documentary evidence on record was of little probative value. The gift deed produced by the respondent did not relate to the land in question. The mutation entry in the name of the respondent was of little probative value as it was based on an application made by him in the year 1968 containing factually misleading statements, the report of the Mondal who could not be said to be an independent government functionary being the respondent's cousin, the no objection certificate from P. Wangyal again containing factually incorrect statements and the proceedings which also did not lack in misstating facts. 2. The oral evidence adduced by the respondent was not credible. The respondent had admitted in his cross-examination that he had paid rent in respect of the land in question until the date of his evidence. He also filed certain receipts in support of his statement. But none of these receipts contained any particulars to relate them to the land in question and so they were of no value and the oral testimony about the payment was not credible. 3. The appellants had proved their case of adverse possession. They had been in possession of the land for more than 26 years and had constructed two houses thereon. The respondent had not been in possession of the land at any time.
Final Decision: The appeal was allowed. The judgment and decree of the Trial Court was reversed and the suit was dismissed. The appellants shall get their costs throughout. Counsel fee was assessed at Rs. 1,000/- in each Court.
( 1 ) JUDGMENT :- This is an appeal against the judgment and decree dt. 10th April, 1985 of the learned Additional District Judge, decreeing the suit brought in the year 1977 by the respondent Shri Rinchen Dorjee for declaration as the owner of plot No. 698 measuring 5. 23 acres under Khatian No. 17 situated at Lingdam, East Sikkim and also for its possession.
( 2 ) THE land in question belonged to late Enchey Kazi. Both the parties claim title to it through his heirs. However, the land remained recorded in the record of rights, in the name of Enchey Kazi for many years even after his death and subsequently was recorded in the name of Tshering Gyamtso, the second son of Enchey Kazi until the respondent got the mutation effected in his name, on an application filed for that purpose in January, 1968 before the District Officer, East. Thereafter, by means of an application dt. 16th May, 1977, appellant 1 challenged the mutation effected in the name of the respondent which resulted in the change of mutation in her name vide order dt. 7th July, 1977 of the District Magistrate, Sikkim passed in Miscellaneous case No. 122 of 1977. The respondent claims title on the plea that the land had been gifted to his grandfather late Dugay Bhutia by late Enchey Kazi and later it passed to him through his father Shri Dorjee Bhutia. He has pleaded peaceful cultivatory possession of his and his family since the year 1938 until 1969 when the appellants started encroaching on about 0. 20 acre of the land. Subsequently, he amended the plaint, with the leave of the Court, so as to claim possession in respect of the entire plot.
( 3 ) ON the other hand, the appellants have pleaded in their written statement filed on 3-9-77, that Saila Kazi, the third son of Enchey Kazi who was looking after the land in question, amongst others, on behalf of the children of his deceased brother Tshering Gyamtso permitted them 26 years back to enjoy the land and to construct thereon a house, and also promised that in due course of time, the land would be mutated in their names and since then they have been in possession of the land. They have alleged that immediately after getting the land, they constructed a temporary dwelling house and two years later a pucca house with corrugated iron sheets thereon.
( 4 ) THE learned Additional District Judge held the respondent to be the absolute owner of the land and also believed the respondent's case about peaceful continuous possession since 1938 and so decreed the suit but without an order as to costs. Findings on both these points have been challenged by the learned counsel for the appellants.
( 5 ) IT may be pointed out at the very outset, that whatever documentary evidence is on record, is of little probative value. The main document produced on behalf of the respondent is the copy from the record of rights (Ex. P-1) showing his title to the land; but this document is also of no value, as shall be pointed out in the later part of the judgment. Therefore, decision of the case rests mainly on the oral evidence adduced by the parties.
( 6 ) THE respondent, in order to prove his case, examined himself as P. W. 1 and two other witnesses. He deposed, in order to prove his title, that the land in question had been gifted to his grandfather Dugay Bhutia by late Enchey Kazi in the year 1938 and after the death of his grandfather, his father Dorjee Bhutia inherited the same and from his father he got it vide gift deed (Ex. P-3) in the year 1945. Though the gift deed (Ex. P-3) would not be of much help to decide the controversy whether it was the respondent's grandfather or the appellants who got the land from Enchey Kazi or his heirs, but it could be of some help to prove the respondent's case, if this document could be shown to relate to the land in question, in as much as it would then show that as far back as 1945 the father of the respondent had treated the land as his own. As admitted by the respondent himself in his
