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HIGH COURT OF SIKKIM
A. P. SUBBA, J.
CHEWAG DORJEE LAMA - Appellant
Versus
LERAP DORJEE BHUTIA - Respondents
Regular Second Appeal 2 Of 2005
Decided On : JUNE 2, 2006
SALE DEED - CONSTRUCTION - BOUNDARIES - DESCRIPTION - CONFLICT BETWEEN BOUNDARIES AND AREA - RULE OF INTERPRETATION - FALSE DESCRIPTION - REJECTION - SALE OF ONLY PLOT NO. 231 - FRAUDULENT INSERTION OF PLOT NOS. 230 AND 232 IN THE SALE DEED - BURDEN OF PROOF - SHIFTING OF BURDEN - PERVERSE FINDING OF FACT - INTERFERENCE BY THE COURT - IGNORANTIA JURIS NEMINEM EXCUSAT - APPLICATION - CIRCUMSTANCES CONSIDERED - PLEADING AND PROOF OF FRAUD - REQUIREMENTS - STANDARD OF PROOF IN CIVIL CASES - PREPONDERANCE OF PROBABILITY.
Fact of the Case:
Plaintiff, the appellant, sold plot No. 231 along with a wooden house to the respondent No. 1 by registered sale deed dated 2-11-1988. Later, the appellant came to know that the respondent No. 1 had also raised some kutcha sheds beyond five feet of the piece of land sold to him. On objection being raised by the appellant, the respondent No. 1 dismantled the structure in the year 1991. In the year 2000, the Appellant came to know that the Government was acquiring some land for various developmental projects at namchi and compensation was being paid for the same. Since the Appellant had land at namchi, he made enquiries, and in course of such enquiry, he obtained certified copy of the sale deed and khatiyan parcha from the Office of the District Collector, South Sikkim, in respect of the land belonging to him. From these documents, it transpired that plot numbers 230 and 232 which were retained by the appellant while selling away plot number 231 to Respondent No. 1 in the year 1988, were also included fraudulently in the sale deed dated 2-11-1988, besides plot number 231 and after having done this, portion of plot No. 230 was also sold to Respondent Nos. 2 to 4. The Appellant also came to know that the Respondent no. 1 had, by misrepresenting himself as the true owner, also received compensation paid by the Government in respect of the Appellant's land so required. On coming to know of all this, the Plaintiff/appellant in the year 2004 filed a Civil Suit being Title Suit no. 2 of 2004 in the Court of the Civil Judge, (South and West) at Namchi against the respondent No. 1 and four others for declaration, possession, injunction and other consequential reliefs in respect of the plot numbers 230 and 232 situated at Namchi Bazar, South sikkim.
Finding of the Court:
The court found that the sale deed (Ext. P3) contained the following relevant particulars: Name of seller Shri Chewang Dorjee Bhutia Name of Purchaser Shri Lerap Dorjee Bhutia Description of property under sale together with its boundary An old wooden house along with kitchen East Dry field of Nak Tshering Lepcha & Self West Self North Self South Dry field of Rinchen Bhutia Khatian Plot Nos. Nos. . . . 231, 230, 232. Area O. 0530 Hects. The court also noted that the parcha Khatian (Ext. B) produced by the Defendant showed the following : Plot Numbers Hectare 231 . 0140 230/546 . 0260 232/547 . 0130 The court further observed that the boundaries mentioned in the sale deed (Ext. P3) corresponds with the boundary of plot No. 231 mentioned in the survey map (Ext. P2) on all sides, except in the south. The boundaries thus mentioned being land of the seller in the east, west and north go to indicate that the land sold by the owner was only portion of the whole land owned by him. Otherwise, there would have been no occasion to mention the boundary in the east, west and north as the land of the seller. The court held that the only boundary that does not tally, is the boundary mentioned in the south. It is thus a case of the boundaries described being partly correct and partly incorrect. The court also noted that the total area of land purchased by the defendaant/respondent is. 0530 hectare and not the entire land covered by plot Nos. 230, 231 and 232 measuring. 1800 hectare. Referring to and relying on the other Parcha Khatian (Ext. B) submitted by the Defendant, the court pointed out that, as per this document, the Respondent No. 1 had purchased whole of plot No. 231 along with portion of plot Nos. 230 and 232. It was on account of such purchase of only part of plot Nos. 230 and 232, that upon mutation of these plot Nos. (230 and 232)in the name of the Respondent No. 1, they were allotted new plot Nos. 230/546 and 232/5470. As a consequence, if the total land purchased by the Plaintiff/appellant i. e. . 0530 hectares is subtracted from the total area of the land of plot Nos. 230, 231 and 232, i. e. . 1800 hectare, the Plaintiff/appellant would still be owning the remaining land measuring. 1270 hectare. If it were so, the boundary of the sold land as indicated in the Sale deed would be quite in conformity with the position as it ought to have been. However, it was made clear by the parties at the hearing, on enquiry from the Court that, no part of land has been left out in the possession and ownership of the Plaintiff/appellant after the defendant/respondent No. 1 took possession of the land sold to him vide, sale deed Ext. P3. The explanation sought to be given, thus falls through. That apart, the story made out by the learned Counsel does not explain away the discrepancy in the boundary as well as in the dimension of the land in question. Therefore, for the above reasons and observations, the conclusion is irresistible that the finding arrived at by the leaarned Appellate court is based on a misreading of the evidence on record and thus perverse.
Issues: 1. Whether the findings given by the first appellate Court on the basis of the conclusions arrived at, are based on misreading of the evidence on record and thus perverse? 2. Whether the first appellate Court placed the burden of proof wrongly on the appellant on any of the issues while deciding the appeal.
Ratio Decidendi: 1. The court held that the finding arrived at by the learned Appellate court is based on a misreading of the evidence on record and thus perverse. 2. The court held that the burden of proof was not wrongly placed on the appellant by the learned Appellate court.
Final Decision: Appeal allowed and the impugned judgment and decree passed by the learned District Judge (Sandw) at Namchi is set aside, thus affirming the judgment and decree dated 22-2-2005 passed by the learned trial Court.
( 2 ) THE appellant inherited landed properties covered by plot numbers 230, 231, 232 and 408 situated at Namchi Bazar, South sikkim, on the demise of his late father Shri tonyot Lama. Having joined service under the government of Sikkim in the year 1954, the appellant was always on the move on account of transfers and postings to different stations. For this reason and also for the reason that he had settled down in Gangtok, East Sikkim, during the service period, the above land inherited by him at Namchi was left under the care and enjoyment of his only sister, Late pempa Doma Bhutia and her late husband tempo Bhutia. Since the said Tempo Bhutia lived as 'gharjuwai', he and his wife late Pempa doma Bhutia lived with Late Doma Bhutia, the mother of the plaintiff/appellant at Namchi in the wooden house built on plot No. 231. In the year 1988, when the appellant happened to be at Namchi for a brief period, on transfer to that place, the respondent No. 1 who is his nephew, being the son of his late sister Pempa doma Bhutia, approached him for selling him the piece of land covered by plot No. 231 on which a wooden house was constructed and in which they were living. Conceding to the request, the appellant sold the said piece of land covered by plot number 231 along with the wooden house standing thereon to the respondent no. 1 by registered sale deed dated 2-11-1988. At the relevant time, it came to the notice of the Appellant that the respondent no. 1 had also raised some kutcha sheds beyond five feet of the piece of land sold to him. On objection being raised by the appellant, the respondent No. 1 dismantled the structure in the year 1991. In the year 2000, the Appellant came to know that the Government was acquiring some land for various developmental projects at namchi and compensation was being paid for the same. Since the Appellant had land at namchi, he made enquiries, and in course of such enquiry, he obtained certified copy of the sale deed and khatiyan parcha from the Office of the District Collector, South Sikkim, in respect of the land belonging to him. From these documents, it transpired that plot numbers 230 and 232 which were retained by the appellant while selling away plot number 231 to Respondent No. 1 in the year 1988, were also included fraudulently in the sale deed dated 2-11-1988, besides plot number 231 and after having done this, portion of plot No. 230 was also sold to Respondent Nos. 2 to 4. The Appellant also came to know that the Respondent no. 1 had, by misrepresenting himself as the true owner, also received compensation paid by the Government in respect of the Appellant's land so required. On coming to know of all this, the Plaintiff/appellant in the year 2004 filed a Civil Suit being Title Suit no. 2 of 2004 in the Court of the Civil Judge, (South and West) at Namchi against the respondent No. 1 and four others for declaration, possession, injunction and other consequential reliefs in respect of the plot numbers 230 and 232 situated at Namchi Bazar, South sikkim.
( 3 ) IN the said suit, all the Respondents filed written statements. The Respondent No. 1 in his separate written statement contended that the Appellant had sold Schedule 'b' land (i. e. plot Nos. 230 and 232), and plot No. 231 along with the house in the plot No. 231 vide, sale deed dated 2-11-1988 and had not only admitted the registration of the schedule land in the year 1988, but had also conceded that small portion of land which was missed out earli
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