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IN THE HIGH COURT OF SIKKIM : GANGTOK
ARUP KUMAR GOSWAMI, J.
Mrs. Devi Maya Chettri, W/o Late Karna Bahadur Chettri - Appellant
Versus
Mr. Mahesh Chettri, Son of Late Lal Bahadur Chettri - Respondent
R.F.A. No. 11 of 2017
Decided On : 23-11-2020
Transfer of Property Act - Ownership Dispute - Transfer of Property Act 1882 - Sections 9, 35 - Plaintiff claimed ownership of land and buildings based on a letter and unattested Parcha Khatiyan - Court held that the plaintiff failed to establish her right, title, and interest over the property as the evidence provided had no legal basis - Defendant no.2 was found to have right, title, and interest over the land but not the buildings - Plaintiff was granted 50% of the rent collected by defendant no.2 for her maintenance - Illegal construction allegation was dismissed as no violation of law was found
Fact of the Case:
The plaintiff claimed ownership of land and buildings, alleging that the properties were transferred to her by her husband and his brother. The defendant no.1 and defendant no.2 contested the claim, stating that the properties were rightfully theirs.
Finding of the Court:
The court found that the plaintiff failed to establish her right, title, and interest over the property as the evidence provided had no legal basis. The court held that defendant no.2 had right, title, and interest over the land but not the buildings. The court dismissed the illegal construction allegation as no violation of law was found.
Issues: The main issues were the ownership dispute over the land and buildings, the collection of rent by defendant no.2, and the allegation of illegal construction.
Ratio Decidendi: The court held that the plaintiff's claim of ownership was not substantiated by the evidence provided, and therefore, she had no right, title, and interest over the property. The court also found that defendant no.2 had right, title, and interest over the land but not the buildings. The court dismissed the illegal construction allegation as no violation of law was found.
Final Decision: The appeal was disposed of with the finding that the plaintiff failed to establish her ownership claim, and defendant no.2 was granted 50% of the rent collected for the maintenance of the plaintiff. The illegal construction allegation was dismissed.
JUDGMENT :
Arup Kumar Goswami, J.
This appeal is preferred against the judgment and decree dated 31.07.2017 passed by the learned District Judge, Special Division-II, East Sikkim in Title Suit No.05/2014 dismissing the suit of the plaintiff.
2. Defendant no.1 is the brother-in-law of the plaintiff, he being an elder brother of her late husband Karna Bahadur Chettri. The defendant no.2 is her son. On the death of defendant no. 1, his legal representatives were brought on record. They are respondent nos. 1 and 2 in the appeal. Defendant no.2 is the respondent no.3 in the appeal.
3. Defendant no. 1 had filed written statement but for non-appearance, the suit proceeded ex-parte against him from 02.07.2015. It appears that without having the ex-parte order against him vacated, evidence on affidavit was filed by him. In the paper book also there is a copy of the evidence-on-affidavit filed by him as defendant no.1. The same was not considered by the learned Trial Court. He was examined as a witness by defendant no. 2.
4. It is the case of the plaintiff that she is the owner of land described in Schedule-A and the two three-storied RCC Buildings, described in Schedules-B and C, standing over it. While Schedule-B building was constructed in the year 1998-1999 and occupied by defendant no.2, Schedule-C building was constructed in the year 1982-1983 and the same is in occupation of several tenants.
5. It is pleaded that the suit land was purchased by her father-in-law late Mandal Purna Bahadur in the name of defendant no.1 in the year 1969-70 as the husband of the plaintiff had gone for higher training outside the state. During the survey operation conducted in the year 1976-1978, the plot of land was recorded in the name of defendant no.1 vide Plot No.604/1056 under Khatiyan No.162, measuring an area of 0.1500 hectare. The defendant no.1 had submitted an application to the Director, Survey and Settlement, Government of Sikkim on 08.06.1978 requesting him to correct the records and register the plot of land in Sichey Basti, standing in his name, to K.B Chettri, husband of the plaintiff. The aforesaid land was transferred on the condition that two plots of land - one at Samdong known as “Buri Baju Ko khayal” and the other at Tumin Block, recorded in the name of her husband, were to be transferred and mutated in favour of defendant no.1. Though no attested Parcha was provided to the plaintiff, a non-attested Parcha was given.
6. Further case of the plaintiff is that as her husband was in dire need of money in 1979, a verbal arrangement was worked out in between her and her husband that on her providing a sum of Rs.2000/-, her husband would transfer the land mentioned in Schedule –A measuring 0.1500 hectare in her favour. It is stated that the aforesaid land is maintained by Land Revenue Department as Plot Nos.1622, 1623 and 1624 under Khatiyan no.544.
7. It is pleaded that the suit properties are under the possession of plaintiff and her husband since last forty-four years and the plaintiff is enjoying the same uninterruptedly. Further case of the plaintiff is that relationship of the plaintiff and her son was not cordial as a Will was executed by the husband of the plaintiff bequeathing some landed property to their daughters. On instigation of defendant no.1, defendant no.2 is giving harassment to the plaintiff. Defendant no.1 had also executed a Gift Deed dated 31.03.2011 in favour of the defendant no.2 in respect of Schedule-A land, as against which an objection was lodged by her before the Registrar of the District Collectorate, East Sikkim. Though the plaintiff used to collect rent from the tenants residing in Schedule-C building, by threatening the tenants in the month of December 2012, the defendant no.2 started collecting rents from them from the month of February, 2013, compelling her to lodge a complaint before the Superintendent of Police, East Sikkim and to issue legal notices to the tenants. It is averred that defendant no.2, with a
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