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1994 Supreme(Sikk) 2
HIGH COURT OF SIKKIM
S. N. BHARGAV, R. DAYAL
MOTILAL LAKHOTIA - Appellant
Versus
MEWANG TOBGYAL WANGCHUK TENZING NAMGYAL - Respondents
C. F. A. 4 Of 1989
Decided On : June 30, 1994
J.MITRA, MALAY GHOSH, T.B.THAPA, U.P.SHARMA
Interpretation of khasra entries, acquisition of private estate by Government, validity of construction on allotted land, and determination of public gully status.
Headnote:
LAND DISPUTE - OWNERSHIP OF PLOT - PRIVATE ESTATE - KHASRA ENTRIES - INTERPRETATION - ACQUISITION OF PRIVATE ESTATE BY GOVERNMENT - EVIDENCE - CONSTRUCTION ON ALLOTTED LAND - PUBLIC GULLY - SANCTIONED BLUE PRINT PLAN - LEGALITY OF CONSTRUCTION.
Fact of the Case:
Plaintiffs, claiming ownership of plot No. 1040 and a gully in plot No. 1013 as part of their private estate, filed a suit against defendants for encroachment and illegal construction on the said properties. The defendants contended that the land belonged to the Government and not to the plaintiffs' private estate, and that they had constructed the buildings after obtaining proper approvals.
Finding of the Court:
The Court held that the khasra entries mentioning 'shri Panch Maharaj Sir Tashi Namgyal' referred to the ruler holding the plots for the purpose of the Government of Sikkim and not as his private estate. The plaintiffs failed to prove ownership of any portion of plot No. 1040 where the defendants had constructed buildings. The Court also found that the gully in plot No. 1013 was a public gully and not a private gully belonging to the plaintiffs. The defendants had obtained valid allotment of land from the Government and had constructed the buildings after obtaining sanctioned blue print plans from the Gangtok Municipal Corporation.
Issues: 1. Ownership of plot No. 1040 and gully in plot No. 1013 - Private estate or Government land? 2. Encroachment and illegal construction by defendants - Proof of ownership and extent of encroachment. 3. Legality of construction by defendants - Sanctioned blue print plan and approvals.
Ratio Decidendi: 1. Interpretation of khasra entries - 'Shri Panch Maharaj Sir Tashi Namgyal' referred to the ruler holding the plots for the purpose of the Government and not as his private estate. 2. Acquisition of private estate by Government - Documentary evidence and historical context. 3. Construction on allotted land - Validity of allotment and sanctioned blue print plans. 4. Public gully - Evidence of public use and maintenance by the Gangtok Municipal Corporation.
Final Decision: The appeal was allowed, the impugned judgment and decree of the trial court were set aside, and the suit was dismissed with costs in both courts.
( 2 ) THE suit giving rise to the appeal was originally brought by late Mewang Palden Thondup Namgyal, son of late Chogyal late Shri Tashi Namgyal. During the pendency of the suit, the original plaintiff died and the present plaintiff-respondents were substituted as his legal representatives. The case of the plaintiff as per the plaint may be summarised thus: Settlement plots Nos. 1013, 1014, 1040 (part) situated at Gangtok originally belonged to late Chgyal Sir Tashi Namgyal of Sikkim as his personal properties forming part of his private estate. After his death, the properties developed on the original plaintiff, Mewang Palden Thondup Namgyal, and after his death, the same passed on to the present plaintiffs, and they have all along been in peaceful and uniterrupted possession of the same. The original plaintiff constructed one pucca building on plot No. 1014 situated on the New Market Road, Gangtok, and let out the same to tenants. On the adjacent south of the said building, there is a private passage 12' wide made of steps belonging to the plaintiff and on the adjacent south thereof, there is another building known as Yuthok building on plot No. 1012. The aforesaid passage was constructed and maintained by the plaintiff. Behind the aforesaid two buildings, there is a passage running across the aforesaid 12' passage which is a private gully (plot No. 1013) and behind the said passage there are two wooden buildings used as kitchen, latrines and godwon, solely for the use of the tenants occupying the Naybazar building and Yuthok building. Settlement Plot No. 1040 (part) belonging to the plaintiff is situated on the west of the Naya Bazar Building and has all along been in peaceful possession of the plaintiff. There is a retaining wall on the west of the aforesaid plot of land which is the boundry between the land of the plaintiffs Private Estate and the land of the Denzong Cinema Ltd. , defendant No. 2 Defendant No. 1 is the Managing Director of Denzong Cinema Ltd. , and is also connected with the defendant No. 3. Defendants started construction of a big pucca building for the purpose of a hotel on the land south of the plaintiff's aforesaid land and have illegally encroached upon a portion of the plaintiff's land measuring 6,600 Sq. ft. , which falls on plot No. 1040. The defendants have also been illegally using the aforesaid 12' private passage for carrying building materials from the New Market road to the building site under construction after removing "no Thorough-fare" signboards posted on both ends of the said passage and cutting barbed wire fencing. The defendants also started constructing a fly over (bridge) over the aforesaid passage connecting New market road with the hotel building. On 18-1-1977 a notice was issued to defendant No. 1 through the lawyer of the Private Estate, requesting him not to use the aforesaid private passage and to stop unauthorised and illegal construction on the plaintiff's land. But, in spite of the receipt of the said notice, the defendants did not stop using the said passage or from construction of the building on the encroached portion of the plaintiff's land. On enquiry, the plaintiff learnt with respect to the land on which the hotel building was under construction that title had not passed to the defend
