Sikkim High Court
Chandra Bir Gurung vs Pratap Singh Gurung And Others on 20 October, 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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R.S.A. No. 01 of 2017
Shri Chandra Bir Gurung,
S/o late Nar Bahadur Gurung,
R/o Labdang,
P.O. Tashiding,
West Sikkim.
Presently residing at Sirwani,
P.O. Singtam, East Sikkim. ..... Appellant
Versus
1. Shri Pratap Singh Gurung,
S/o late Nar Bahadur Gurung,
R/o Labdang,
P.O. Tashiding,
West Sikkim.
2. The Secretary,
Land Revenue & Disaster Management Department,
Government of Sikkim,
New Secretariat,
Gangtok,
P.O. Gangtok,
P.S. Sadar, East Sikkim.
3. The Revenue Officer,
District Collectorate, Gyalshing,
P.O. Gyalshing,
West Sikkim.
..... Respondents
Appeal under Section 100 of the Code of Civil Procedure,
1908.
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Appearance:
Mr. U.P. Sharma, Advocate with Mr. Krishna Bhandari,
Advocate for the Appellant.
Mr. A. Moulik, Senior Advocate with Ms. K. D. Bhutia,
Advocate, for the respondent no. 1.
2
R.S.A. No. 1 of 2017
Chandra Bir Gurung vs. Pratap Singh Gurung and Ors.
Mr. S. K. Chettri, Government Advocate for the respondent
nos. 2 and 3.
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Date of hearing : 06.10.2021 & 08.10.2021
Date of judgment: 20.10.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. A second appeal is maintainable before the High
Court if the High Court is satisfied that the case involves a
substantial question of law. The Supreme Court in Union of India
vs Ibrahim Uddin & Another1, held that the existence of substantial
question of law is sine qua non for the exercise of jurisdiction
under the provisions of section 100 of the Code of Civil
Procedure, 1908 (CPC). The court, for the reasons to be recorded,
may also entertain a second appeal even on any substantial
question of law, not formulated by it, if the court is satisfied that
the case involved such a question. Second appeal does not lie on
the ground of erroneous findings of facts based on appreciation
of the relevant evidence. In Govindaraju vs Mariamman2, the
Supreme Court held that to be a substantial question of law it
must be debatable, not previously settled by law of the land or by
any precedent or answer to the same will have a material bearing
as to the rights of the parties before the court. There must be
first a foundation for the question laid in the pleadings and the
1(2012) 8 SCC 148
2AIR 2005 SC 1008
R.S.A. No. 1 of 2017
Chandra Bir Gurung vs. Pratap Singh Gurung and Ors.
question should emerge from sustainable findings of facts arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision between the
parties. In Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un-
Niswan3, the Supreme Court held that the High Court should not
interfere with the concurrent finding of fact in a routine and
casual manner by substituting its subjective satisfaction in place
of lower courts. In Smt. Bismillah Begum (dead) by LRs vs
Rahmatullah Khan (dead) by LRs4, the Supreme Court held that the
findings of fact arrived at by the courts below are binding in
second appeal. The concurrent findings of the learned trial court
and the learned first appellate court can be interfered only in
cases where (i) material evidence were ignored or the courts acted
on no evidence; (ii) there is wrong inferences from proved facts by
erroneously applying the law; or (iii) the courts have passed the
burden of proof wrongly.
2. The present dispute is between two brothers-the
plaintiff and the defendant no.1, amongst the six sons of late Nar
Bahadur Gurung. The dispute relates to plot no. 302/472 and
plot no. 90/473 (suit property) recorded in 'parcha khatiyan' no.
121 in the name of the defendant no.1. According to the plaintiff,
the properties of late Nar Bahadur Gurung had been divided
between the sons without any formal partition deed. Plot no.302
3AIR 1999 SC 3067
4AIR 1998 SC 970
R.S.A. No. 1 of 2017
Chandra Bir Gurung vs. Pratap Singh Gurung and Ors.
fell in his share. Plot no. 90 fell in the joint share of his brother
late Kharga Bahadur Gurung and defendant no.1. As the plaintiff
was staying away from the suit land, the defendant no.1 in
connivance with some employees of the District Collectorate
mutated the plots in his name without any notice or no objection
from the brothers. The plaintiff prayed for declaratory reliefs and
recovery of possession of the suit property.
3. In a suit for declaration and possession, the burden is
on the plaintiff to establish its case.
4. The defendant no.1 also admitted that there was
partition of the properties of late Nar Bahadur Gurung but the
suit property fell in his share.
5. The suit was dismissed by the learned Trial Judge
holding that the plaintiff had failed to substantiate his plea that
the suit property fell in his share.
6. The learned first Appellate Court upheld the findings
of the learned Trial Court.
7. Both the courts examined the 'parcha khatiyan'
(exhibit-1) in substantial detail contrary to what has been
pleaded in the appeal.
8. Section 101 of the Indian Evidence Act, 1872 states
that whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts, he asserts,
R.S.A. No. 1 of 2017
Chandra Bir Gurung vs. Pratap Singh Gurung and Ors.
must prove that those facts exist. When a person is bound to
prove the existence of any fact, it is said that the burden of proof
lies on that person.
9. Pleading the material facts clearly and precisely on
which the plaintiff relies for his claim is necessary. In a case like
the present one, it was also necessary for the plaintiff to plead
particulars of how and with whom the defendant no.1 connived.
Allegation of connivance must be clearly pleaded with material
particulars and proved. The plaintiff did not also plead how
exactly the partition took place and what was the share of each
of the brothers of the plaintiff. The plaintiff examined himself, his
brother Ganga Gurung (PW-2) and Hasta Bahadur Gurung (PW-
3). During his cross-examination, the plaintiff admitted that he
did not know the measurement of the properties mentioned in
the 'parcha khatiyan' (exhibit-1) and that all his brothers have
their respective share of the properties belonging to late Nar
Bahadur Gurung. Besides oral evidence, the plaintiff exhibited
eight documents. No evidence has been led by the plaintiff to
establish what he asserted in the plaint that the suit property fell
in his share and the defendant no.1 in connivance with the
employees of the District Collectorate surreptitiously and illegally
mutated the suit properties in his name. S.K. Limboo (defendant
no.3) examined himself. He was the concerned Revenue Officer.
His cross-examination by the plaintiff reflects that it was not
even put to him that the employees of the District Collectorate
R.S.A. No. 1 of 2017
Chandra Bir Gurung vs. Pratap Singh Gurung and Ors.
had in connivance with defendant no.1 mutated the plots in his
name.
10. Consequently, this court is of the view that the
solitary question of law framed by this court, that the learned
First Appellate Court had not considered the 'parcha khatiyan'
(exhibit-1) correctly and the impugned judgment was based on
its misinterpretation, must be answered in the negative. Further
it is held that this is not a fit case for interference with the
concurrent findings of fact passed by the district judiciary.
11. The appeal is dismissed.
12. No orders as to costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting: Yes/No
Internet : Yes/No
Bp
