Sikkim High Court
Old Rumtek Monastery And Ors vs Lama Karma Dorjee And Ors on 5 July, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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RSA No. 02 of 2018
1. Old Rumtek Monastery
Filed through DUTCHI
Represented by Lama Dup Tshering
Dorje Lopon (Head Lama)
Old Rumtek Monastery,
Rumtek,
East Sikkim.
2. Lama Dup Tshering
Dorje Lopon (Head Lama),
S/o Shri Naksuk Bhutia
Old Rumtek Monastery
Rumtek,
East Sikkim.
3. Nadhu Lepcha
Gyankhang Lama
S/o late Aden Lepcha
Member, DUTCHI
Old Rumtek Monastery
Rumtek,
East Sikkim.
4. Phurba Bhutia
Secretary
S/o Topgay Bhutia
Old Rumtek Monastery
Rumtek, East Sikkim. ..... Appellants/plaintiffs
Versus
1. Lama Karma Dorjee
S/o Late Sonam Topden Bhutia
2. Lama Sonam Pintso
S/o T.T. Bhutia
(Both are members of DUTCHI,
Sang Monastery,
P.O. Sang,
P.S. Ranipool, East Sikkim)
3. Lama Palden
Lopen of Gangtok, Manilakhang
S/o late Sonam Bhutia
R/o Below Old Rumtek Monastery
P.O. Rumtek, P.S. Ranipool
East Sikkim.
2
R.S.A. No. 02 of 2018
Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
4. Rinzing Bhutia,
S/o late Phurgay Bhutia
P.O. Rumtek, P.S. Ranipool
East Sikkim. ..... Respondents
5. Secretary,
Ecclesiastical Department,
Government of Sikkim,
Gangtok,
East Sikkim.
6. Karma Samdup Lama
Acting Cheotrimpa
S/o Cheozang Bhutia,
Old Rumtek Monastery,
Rumtek, East Sikkim. ..... Proforma Respondents
Appeal under section 100 of the Code of Civil Procedure, 1908.
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Appearance:
Mr. B. Sharma, Senior Advocate with Mr. Bhola Nath Sharma,
Advocate for the Appellants.
Mr. Jorgay Namka, Advocate (Legal Aid Counsel) for the respondents
no. 1 and 4.
Ms Kunzang Choden Lepcha, Advocate for the respondents no. 2 and
3.
Mr. S.K. Chettri, Government Advocate with Ms Pema Bhutia for the
Respondent no. 5.
None for Respondent No. 6.
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Date of hearing : 26.06.2021
Date of judgment : 05.07.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The solitary question which requires examination in the
present Regular Second Appeal is "Whether the learned Trial Court and
the First Appellate Court failed to appreciate the documentary evidence
relied on by the appellants in its correct perspective?"
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
2. The plaintiffs were the appellants in Title Appeal No. 06 of
2017 before the learned District Judge, Special Division-II, Sikkim at
Gangtok (the learned District Judge). They are the appellants in the
present Second Appeal as well.
3. Four issues had been framed by the learned Trial Court on
25.10.2016 and the suit set for trial. The learned Trial Court
dismissed the Suit. However, on the question of maintainability of the
suit, particularly on the point of limitation and locus standi of the
appellants, it was held in favour of the appellants. The sole question
framed by this Court is relatable to issue no. 2, i.e., "Whether the
plaintiff no. 2 is the Dorje Lopen of Old Rumtek Monastery for his
lifetime and have the right to perform pujas as head lama?" Since the
appellants had sought such a declaration, the onus of issue no.2 was
put on the appellants. The learned Trial Court decided the said issue
against the appellants. The appellants, therefore, filed Title Appeal No.
6 of 2017 before the learned District Judge. The learned District Judge
decided the said issue once again against the appellants and did not
interfere with the findings of the learned Trial Court.
4. During the pendency of the Title Appeal before the learned
District Judge, the appellants filed an application under Order XLI
Rule 27 read with section 151 of the Code of Civil Procedure, 1908 (for
short „the Application‟) seeking to file further documents. The learned
District Judge rejected the said application as well, as the documents
were found to have no bearing to the facts in issue.
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
5. The learned District Judge, however, while examining
issue no.4, i.e., "Whether the plaintiffs are entitled for other relief or
reliefs?" held that once the suit filed by the appellants was found
maintainable and once the issue no.3, regarding the authority of the
respondents no.1 to 4 to constitute a new Dutchi/Committee was
decided in the negative, the learned Trial Court ought to have decreed
the suit in terms of prayers „a‟ and „b‟ of the plaint instead of
dismissing it in its entirety. Accordingly, the learned District Judge
decreed the suit in favour of the appellants in terms of prayers „a‟ and
„b‟. The present Second Appeal has been filed by the appellants. There
is no cross-appeal by the respondents against the findings in favour of
the appellants by the learned District Judge.
6. Heard Mr. B. Sharma, learned Senior Counsel with
Mr. Bhola Nath Sharma, learned Advocate, for the appellants;
Mr. Jorgay Namka, learned Counsel for the respondents no.1 and 4;
Ms Kunzang Choden Lepcha, learned Counsel for the respondents
no.2 and 3 and Mr. S.K. Chettri, Government Advocate with Ms Pema
Bhutia, Assistant Government Advocate, for the respondent no.5.
7. Mr. B. Sharma reiterated the arguments raised by the
appellants before the learned Trial Court as well as before the learned
District Judge. Traversing through all the evidences, both oral and
documentary, led by the appellants, it was submitted that the
appellant no.2 was the Dorje Lopon (Head Lama) of the appellant no.1,
i.e., the Old Rumtek Monastery, for his life time and had the right to
perform pujas as such. Mr. Jorgay Namka on the other hand
vehemently supported the findings of the learned Trial Court as well as
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
the learned District Judge. He submitted that since it was the
appellants‟ case before the learned Trial Court that the appellant no.2
was the Dorje Lopon appointed for his life time it was incumbent upon
him to establish the same at least by preponderance of probability
which they have failed to do. None of the documents sought to be
relied upon established the facts asserted by the appellants. Ms
Kunzang Choden Lepcha supported the arguments made by Mr.
Jorgay Namka. Mr. S.K. Chettri submitted that he represented the
proforma-respondent who had nothing to do with the matter.
8. The appellants had pleaded that the appellant no.2, being
the Dorje Lopon (Head Lama), held and occupied the permanent post
as per customs, traditions and culture and that he could not be
removed from his post till he retired on his own or resigned. The
respondents had specifically denied the assertion of the appellants
that the appellant no.2 had been made the Dorje Lopon. It was, in fact,
further stated that the appellant no.2 did not even qualify for the post
of Dorje Lopon.
9. Lama Dup Tshering (PW-2), who is the appellant no.2,
reiterated these statements made in the plaint. He was cross-
examined. Bhaichung Lepcha (PW-3) and Karma Chuttem Bhutia (PW-
4) also stated that the appellant no.2 is the Dorje Lopon (Head Lama) of
the appellant no.1, i.e. the Old Rumtek Monastery, and as per custom,
tradition, precedent and culture, Dorje Lopon held the post till he died
or till he retired. They were also cross-examined by the respondents.
Besides the statements, the appellants sought to rely upon certain
documents. "The Gazetteer of Sikhim by H.H. Rishley" was exhibited by
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
appellant no.5. Besides the voluminous Gazetteer of Sikhim exhibited
by the appellant no.5 in toto, Mr. B. Sharma also referred to the
following correspondences - (i) Memo No. 61/DCE dated 14/07/09
addressed to the President of Old Rumtek Monastery (Exhibit-5).
(ii) Correspondence reference no. 03/0RM/09-10 dated 18.07.2009
addressed to the Revenue Officer (Acquisition) under the signature of
five persons (Exhibit-6). (iii) Order dated 23.08.12 passed by this Court
in W.P.(C) No. 24 of 2008 (Exhibit-10). (iv) Correspondence no.
1059/EA dated 12.9.13 addressed to the appellant no.2 as Dorje
Lopon (Head Lama) of appellant no.1 by the Additional Secretary,
Ecclesiastical Department of the Government of Sikkim (Exhibit-12).
(v) Correspondence bearing reference no. 05/ORM/13 dated
21.11.2013 addressed to certain individuals and signed by four
persons (Exhibit-13). (vi) A certificate regarding expenditure incurred
for burning butter lamps at the Rumtek Gumpa signed by five persons
and certified by the Department of Ecclesiastical, Government of
Sikkim (Exhibit-14).
10. Besides the aforesaid documents relied upon by Mr. B.
Sharma, the learned District Judge has also examined the following
documents - Exhibit-4, Exhibit-8 and Exhibit-15. Exhibit-4 is a
petition dated 16.08.2013, filed by the appellant no.2 under section
144 and 145 of the Code of Criminal Procedure, 1973 against the
contesting respondents. This document only reflects that the appellant
no.2 had filed petition before the learned District Magistrate as the
Dorje Lopon. Exhibit-8 is the FIR filed by the appellant no.2 dated
31.07.2013 as the Dorje Lopon against some of the contesting
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
respondents. Exhibit-15 is a register. Once again, none of these
documents have been proved in the manner envisaged by the Indian
Evidence Act, 1872. Merely producing and exhibiting a document is
not enough. Signatures thereon must be identified and proved. The
contents of the documents must also be proved. No attempt has been
made by the appellants to do so. Even these documents do not throw
any further light on the issue which was required to be established by
the appellants save the fact that during the period of these documents,
the appellant no.2 had projected himself as the Dorje Lopon. There is
no material, therefore, to establish that the appellant no.2 was the
Dorje Lopon of the appellant no.1, i.e. Old Rumtek Monastery, for his
life time.
11. None of the above correspondences exhibited by the
appellant no.5 have been proved and exhibited in the manner required
under the law. None of the signatures appearing thereon are proved or
identified. Mr. B. Sharma insists that since some of these
correspondences refer to the appellant no.2 as the Dorje Lopon, it must
be held to be so. This Court cannot but disagree with the submission
made by the learned Senior Counsel. It is elementary that whoever
desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that
those facts exists. This is the requirement of section 101 of the Indian
Evidence Act, 1872. The burden of proof in a civil suit would remain
on the appellants as plaintiffs and their mere assertions in the plaint
would not be sufficient to discharge the burden. The appellants
asserted that the appellant no.2 was the Dorje Lopon (Head Lama) of
R.S.A. No. 02 of 2018
Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
the appellant no.1, i.e. the Old Rumtek Monastery, and he was
appointed through custom, tradition, precedent and culture for life.
They further asserted that the appellant no.2 had been performing the
duty of Dorje Lopon (Head Lama) since 1981. It was, therefore, for the
appellant to prove the existence of such facts including the custom,
tradition, precedent and culture. Unfortunately, save exhibiting the
entire Gazetteer of Sikhim, no such evidence, either oral or
documentary, was led by the appellants. Not even an attempt was
made to refer to any extract/statement in the book leave alone support
it by any contemporary facts. None of the correspondences exhibited
by the appellant throw any light on the appointment of the appellant
no.2 as the Dorje Lopon. Mr. B. Sharma would draw attention to
Exhibit-12 and to the fact that the Ecclesiastical Department had vide
this correspondence addressed the appellant no.2 as the Dorje Lopon
(Head Lama). A closer scrutiny of Exhibit-12 makes it clear that it was
in reply to the representation dated 3/8/2013 made by the appellant
no.2, quite obviously, as Dorje Lopon of the appellant no.1, i.e. the Old
Rumtek Monastery. The appellants have not exhibited this
representation dated 3/8/2013. Thus, all that one can presume, even
if this Court was to take cognizance of Exhibit-12, which lies not
proved, is that during this period of correspondence the appellant no.2
had referred to himself as the Dorje Lopon.
12. Mr. B. Sharma would also rely on the order dated
23.08.12 passed by this Court in W.P.(C) No. 24 of 2008. A perusal of
the said order reflects that the writ petition was directed against order
dated 25.08.2008, passed by the Sub-Registrar/District Collector,
R.S.A. No. 02 of 2018
Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
cancelling the Lease Deed dated 16.10.2007. This Court held that the
only question which remained to be examined was the procedural
anomaly. This Court set aside the impugned order dated 25.8.2008
and remitted the matter back for passing a fresh order after according
hearing to the petitioner, the Monastery and the
complainants/representationists. This Court is unable to understand
how even the order passed by this Court dated 23.08.12 would help
the appellants to prove what they asserted.
13. That brings us to the next issue raised by Mr. B. Sharma.
It is his contention that as it was held that the appellants had the
locus standi to prefer the title suit, the learned Trial Court as well as
the learned District Judge ought to have held issue no.2 also in favour
of the appellants. The learned Trial Court examined the issue of
maintainability vis-à-vis the question of limitation and locus standi.
With regard to locus standi, it was held that since it was admitted that
appellant no.2 managed the harvested crops of the gumpa land till
2012 and also since there were other documents like exhibit 6, 7, 12,
14, etc., which showed that the appellants had corresponded with
others on behalf of the appellant no.1, i.e. the Old Rumtek Monastery,
it was decided that the suit of the plaintiff was maintainable. Thus, it
is clear that the learned Trial Court had decided to examine the suit in
detail and consequently held the point of locus standi in favour of the
appellants taking cognizance of the existence of the aforesaid
documents. These documents, as held above, have neither been
proved in the manner required under the Indian Evidence Act, 1872
nor throw any light as to how and when the appellant no.2 was
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Old Rumtek Monastery & Others vs Lama Karma Dorjee & Others
appointed as the Dorje Lopon (Head Lama) for life. These documents
exhibited by the appellants to establish that appellant no.2 was the
Dorje Lopon for life has been examined in detail by the learned Trial
Court and concluded - "43. Since the plaintiffs have to bring in proper
evidences to prove their own case, which in the instant case, they have
failed to produce, issue no.2 is decided against the plaintiffs." The
learned District Judge in the impugned judgment dated 31.03.2018
held that the finding of the learned Trial Court with regard to the
maintainability had not been assailed by the appellants in the first
appeal preferred by them before him and as such the findings had
attained finality.
14. Mr. B. Sharma then referred to the Application filed by the
appellant before the learned District Judge as the First Appellate
Court. This application was filed by the appellants before the learned
District Judge seeking to produce further documents which was
rejected. The learned District Judge examined those documents and
held that "While the attendance sheets proposed to be filed simply show
the attendance of monks during the concerned Annual Gootor (Mahakala
Puja) from 8th to 16 December, 2009, the RTI reply and its enclosures
are seen to be concerning the lease deed document executed between
the existing Dutchi of the appellant no.1 Monastery and Alembic Pvt.
Company which, strictly speaking, have no bearing to the facts-in-issue
in the present matter." The application as well as the documents have
been examined in detail. None of these documents throw any further
light in favour of the appellants to prove the facts they assert.
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Consequently, the finding of the learned District Judge rejecting the
application of the applicant is also upheld.
15. The concurrent findings of both the learned Trial Court as
well as the learned First Appellate Court are sound and need not be
interfered with. None of the grounds pressed by Mr. B. Sharma fall
within the exceptions to the general rule of non-interference in such
cases, i.e., (i) material evidence were ignored or the courts acted on no
evidence; (ii) wrong inferences from proved facts by erroneously
applying the law; or (iii) the courts have cast the burden of proof
wrongly. Thus, the solitary question set by this Court is answered in
the negative. It is held that neither the learned Trial Court nor the
learned District Judge had failed to appreciate the documentary
evidence in its correct perspective.
16. The appeal is dismissed and disposed of accordingly.
17. Pending applications, if any, also stand disposed.
18. No order as to costs.
19. Records of the Courts below be remitted forthwith along
with a copy each of the judgment, for information.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting: Yes/No
Internet : Yes/No
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