The burden of proof rests upon the party asserting the affirmative of an issue. Additionally, objections to the admissibility or mode of proof of documents must be raised at the trial stage; they cannot be contested for the first time during appellate proceedings.

JUDGMENT :

Meenakshi Madan Rai, J.

1. The short question for consideration in the instant Appeal is;

“Whether the Appellants/Defendants have encroached on the land of the Respondent/Plaintiff bearing plot no.728, measuring an area of 0.0140 hectares as described in Schedule B to the Plaint and constructed buildings and telecom towers thereon.”

2. The Appellants were the Defendants before the Trial Court, while the Respondent was the Plaintiff. The parties shall hereinafter be referred to by their litigative status during trial.

3. The Plaintiff filed a suit for declaration, injunction, recovery of possession and other consequential reliefs before the Court of the District Judge, East Sikkim, at Gangtok, averring that he is the owner of a plot of land, bearing no.728, registered in his name and measuring an area of 0.0140 hectares, under Kambal block, East Sikkim. The Defendants in the year 1988 started construction of their towers on an adjacent plot of land. During such process, they encroached upon a portion of the Schedule B land described hereinabove. Proceedings were initiated before the concerned authority of the District Collectorate by the Plaintiff and field verification of the land was carried out in the presence of the officers of the Defendants Company. The area Amin (Revenue Supervisor) who had conducted the inspection in the presence of both parties concluded that, the Defendants had indeed encroached upon the land of the Plaintiff. Nevertheless, as no settlement could be arrived at before the revenue authorities, the Plaintiff approached the Lok Adalat, Gangtok, East Sikkim. The matter remained unresolved before the Lok Adalat, upon which the Plaintiff filed the aforestated Suit before the Court of the District Judge, East Sikkim, at Gangtok, with the following prayers in the Plaint

“(i) Removal of the illegal structure, building and towers from the land of the Petitioner.

(ii) Pay compensation of Rs.10,00,000/- towards illegal occupation.

(iii) Pay compensation of Rs.5,00,000/- towards harassment and mental tension.

(iv) Pay compensation of Rs. 5,00,000/- towards depreciation of the valuation of land.

(v) Handing over the peaceful and unencumbered possession of the land (Schedule-B) to the Plaintiff.

(vi) A permanent injunction restraining the:

(a) Defendants from putting any cables, lines, etc upon and in the land and in the towers, houses.

(b) Or debarring the Defendants from making any renovation or improvement over the said schedule land.

(vii) Costs of proceedings;

(viii) Any other relief or reliefs as this Hon‟ble Court may deem fit and proper in the interest of justice.”

4. The Defendants denied and disputed the claims of the Plaintiff and averred that, in the year 1986 the company had purchased plot No.727(P) from one Devi Bhakta Guragai who handed over vacant and peaceful possession of the land to them in the presence of the Assistant Land Record Officer. Although, the prevailing local laws prevented the Company from registering and mutating the land in their name, however the towers were constructed within the land purchased by them with no encroachment on the land of the Plaintiff. The grievance of the Plaintiff in fact arose from an apprehension of the hazardous effects of the mobile towers constructed close to his residence and was not on account of any encroachment. That, the Defendants had promised to compens