1
RFA No. 09 of 2020
Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 09 of 2020
1. The Divisional Forest Officer (T),
Department of Forest, Environment & Wildlife
Management, South Division,
Namchi, South Sikkim.
2. The PCE-cum-Secretary,
Department of Forest, Environment & Wildlife
Management, Government of Sikkim,
Gangtok, East Sikkim.
3. The Secretary,
Energy & Power Department,
Government of Sikkim,
Gangtok, East Sikkim.
4. Sub-Registrar/Sub Divisional Magistrate,
Office of the District Collector,
Namchi, South Sikkim.
..... Appellants.
Versus
Ashok Tshering Bhutia,
S/o Late A.C. Bhutia,
R/o Tibet Road,
Gangtok, East Sikkim.
..... Respondent
Appeal under Order XLI Rules 1 and 2 of the
Code of Civil Procedure, 1908.
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Appearance:
Dr. Doma T. Bhutia, Additional Advocate General, Mr.
S.K. Chettri, Government Advocate and Ms. Pema Bhutia,
Assistant Government Advocate for the Appellants.
Mr. T.B. Thapa, Senior Advocate with Mr. Khem Raj
Sapkota and Mr. Ranjan Chettri, Advocates for the
Respondent.
Date of hearing : 16.03.2022, 22.03.2022 & 12.04.2022
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RFA No. 09 of 2020
Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
ORDER (ORAL)
(12.04.2022)
Bhaskar Raj Pradhan, J.
1. The defendants are in appeal against a judgment
rendered by the learned District Judge, South Sikkim at
Namchi (learned Trial Judge) in a title suit filed by the
respondent herein as the plaintiff.
2. The facts relevant to decide the present appeal are as
under:
(a) The respondent who was the plaintiff in title
suit no. 2 of 2017 approached the court with a
suit for declarations, injunctions and other
consequential reliefs. It was the respondent's
case that he had purchased plot no. 311, 312
and 313 ad-measuring 0.5960 hectare, 0.0460
hectare and 0.1.1140 hectare totalling to
1.7560 hectare (4.3391 acres) at Samardung
falling under Burul Block, Elakha Bermoik,
District Namchi, South Sikkim vide registered
sale deed bearing book no.1, volume no.2, sl.
No.32 registered on 17.01.2013 in the office of
the sub registrar from one Smt. Jhumki Doma 3 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
Bhutiani and became the absolute owner of
the suit land.
(b) The respondent further pleaded that after the
purchase of the suit land he had been in its
unencumbered physical possession on and
from 09.10.2012. It is the respondent's case
that he has since demarcated the disputed
suit land with the help of the concerned
authority, fenced it wherever it was possible
and carried out various development works
thereon.
(c) It is pleaded that in the year 2016 the Energy
and Power Department, Government of Sikkim
(defendant no.3) had identified the suit land
for construction of 66 KV sub-station under
"Comprehensive Scheme for Strengthening of
T & D lines and sub-stations in Sikkim" for
M/s Power Grid Corporation of India Limited.
The correspondence exchanges between the
department of the government were annexed
in support thereof. The respondent asserted
that the letter dated 01.12.2016 written by the
Sub-Registrar/Sub-Divisional Magistrate
(defendant no.4) to defendant no.3 clearly 4 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
mentioned the suit land had been found
recorded in the name of the respondent. It was
his case that the authorities concerned
processed the file for fixation of rate of the suit
land which was also approved by the Land
Revenue and Disaster Management
Department. The land rate so fixed and
approved was Rs.490 per square feet. It is the
respondent's case that thereafter, the
defendant no.4, vide letter dated 09.05.2017,
sought the issuance of a No Objection
Certificate as per the land survey records of
1951-52 and 1979-80 cadastral survey. It was
asserted that the competent authority i.e. the
Land Revenue Department vide Notification
No.991/D.D.L.R. dated 17.01.1984 had
clearly mentioned that the old land records of
1951 shall cease to be in operation and the
new 1979-80 land records shall come into
force. It was also asserted in the plaint that
the respondent had made detailed inquiries
with the concerned authority before
purchasing the suit land and came to know
that the suit land was once recorded in the 5 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
name of Bishnu Prasad Sharma, S/o of Late
Laldas Sharma vide khatiyan no.31, who had
then sold the same to Shri Ong Tshering
Bhutia S/o Late Inchung Tok Tok vide
registered sale deed bearing book no. A, serial
no.163 page no.1117 volume no.1 pages
no.163 (26) on 11.07.1990 in the office of the
defendant no.4. Thereafter, the suit land was
sold by Shri Ong Tshering Bhutia to Ms.
Donkala Bhutia vide registered sale deed
bearing book no. A, serial no.753, page no.141
on 01.03.2005 in the office of the defendant
no.4. Ms. Donkala Bhutia thereafter, sold the
suit property to Ms. Jumki Doma Bhutia vide
registered sale deed bearing book no.I, volume
no.3 sl. no.40 on 16.11.2011. It was the
further case of the respondent that the office
of the District Collector, Namchi had carried
out extensive search of the suit land and
thereafter, issued a search and Non-
Encumbrance Certificate bearing Memo
No.2228 DCS (Ref) dated 27.11.2007 followed
by a spot verification report dated 23.04.2010.
The relevant documents were also annexed. 6
RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
The copy of the sale deed in favour of Ms.
Jhumki Doma Bhutiani were also relied upon.
It transpires that thereafter, the process of
purchase of the suit land came to a standstill
and ultimately a notice was issued by the
appellant no.1 dated 30.06.2017 in which it
was alleged that the respondent had
encroached forest land to the extent of 3.23
acres which led to the filing of the present suit
seeking various declarations as under:
"(i) declaring that the plaintiff is the absolute owner of the entire suit land;
(ii) declaring that the defendant no.1 had no right/authority to issue letter bearing reference No.369/DFO(T)/S dated 30.06.2017;
(iii) declaring letter bearing reference No.369/DFO (T)/S dated 30.06.2017 issued by the defendant no.1 as illegal and to set aside, quash and cancel the same;
(iv) declaring that the plaintiff be compensated by defendant no.1 and 2 for the loss suffered due to non purchase/acquisition of the suit land by defendant no.3 due to the illegal intervention of defendant no.1;
(v) directing defendant no.4 to complete the process of registration of portion of the suit land in favour of defendant no.3;
(vi) permanent injunction restraining the defendant no.3 from purchasing/acquiring another land for the construction of 66 KV sub-station under "Comprehensive scheme for strengthening of T & D lines and Sub-station in Sikkim";
(vii) ad-interim injunction in terms of prayer no.(v) above.
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RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
(viii) Costs of the proceedings;
(ix) Any other relief/s as this Hon‟ble Court may deem fit and proper in the circumstances of the matter."
3. The defendant nos.1 and 2 filed their written
statement. The defendant nos.1 and 2, inter alia, pleaded
as under:
"(i) The Forests, Env. & Wildlife Management Department, Government of Sikkim relies on the Cadastral Survey Record of 1950-52 for authenticity of any land record. Any land which has been recorded as forest land in the record of rights of 1950-52 cadastral survey shall be deemed to be a forest land.
(ii) The suit land in question is situated at Samardung, Burul Block, South Sikkim which was covered by plot nos. 170/171 as per the 1950-52 cadastral survey record which got re- numbered as plot nos. 311, 312 and 313 as per the cadastral survey record of 1979-80.
(iii) That on 21/10/2016, there was a joint survey/inspection of the suit land by the representatives of the Forest Department, Land Revenue & Disaster Management Department and Power & Energy Department, Government of Sikkim in presence of the land owners. In the said survey/inspection, the following facts were revealed;
(a) As per the cadastral Survey Report of 1950-52, the parts of the suit land covered by plot no.170/171with an area 1.10 acres was found recorded in the name of one Shri Hari Krishna Sharma, son of Shri Bishnu Prasad Sharma.
(b) During the cadastral survey of 1979-
80, the same plot of land was renumbered as plot nos.311, 312 and 313 measuring an area 4.33 acres and found recorded in the name of Shri Bishnu Prasad 8 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
Sharma, son of Lal Das Sharma.
Said Bishnu Prasad Sharma had sold the said land to different individuals and now it is finally recorded in the name of Shri Ashok Tshering Bhutia (plaintiff), son of A.C. Bhutia.
(c) From the above fact it is evident that the area of the suit land as per 1950-52 record was 1.10 acres and as per 1979-80 the area of the suit land was 4.33 acres resulting an excess area of 3.23 acres. (4.33 minus 1.10 =3.23) The excess area of 3.23 acres of land was recorded as Reserve Forest as per the land records of 1950-52.
A copy of the said Joint Inspection Report and Map are annexed herewith as Annexure-D 1 collectively, in 3 pages.
iv. Therefore, the answering defendants would submit that the portion of the suit land measuring an excess area 3.23 acres of land falls under the part and parcel of Tsalumthang Reserve Forest (RF) under Burul Block, South Sikkim and the remaining area of 1.10 acres of land is a private holding.
v. it is submitted that said Bishnu Prasad had sold out the suit lands to different individuals. Therefore, in the different sale transactions from time to time, the portion of the said Reserve Forest having an area 3.23 acres was also erroneously got recorded in the name of private individuals from Reserve Forest. The Land Revenue Department may explain the status and area of the suit land more clearly being the custodian and mother department of all the land records of Sikkim.
vi. It is submitted that on the basis of the said Joint Inspection Report, the then Divisional Forest Officer (T), South issued a „Notice‟ dated 30/06/2017 to the plaintiff for immediate release of 3.23 acres of land (plot 311, 312,
312) which was registered in his name. It is further submitted that the in the said notice, the then DFO has clearly directed the plaintiff to 9 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
evacuate the aforesaid forest land immediately and take necessary action for de-registration from his possession. The plaintiff did not comply with the said direction instead filed the suit to harass the answering defendants. The copy of the said notice is annexed herewith as Annexure D2.
.................."
4. The appellants also made a counter claim and sought
the following reliefs:
"(i) A decree declaring that the defendant nos. 1 and 2 are the absolute owners of the excess area of 3.23 acres of land which was recorded as Reserve Forest as per the land records of 1950-52.
(ii) A decree declaring that the plaintiff is liable to be evicted from the forest land.
(iii) A decree for the cost of the proceedings.
(iv) A decree for any other relief or reliefs for which the defendant nos. 1 and 2 may be entitled to."
5. In the counter claim it was once again specifically
pleaded as under:
"25. That over and above what have been stated in the written statement, the answering defendant puts their case by way of counter claim.
26. That the answering defendant is the exclusive owner of the portion of the suit land as per the cadastral survey operation of 1950-52.
27. From the Joint Inspection Report dated 21/10/2016, it is evident that the area of the suit land as per 1950-52 record was 1.10 acres and as per 1979-80 the area of the suit land was 4.33 acres resulting an excess area of 3.23 acres. The excess area of 3.23 acres of land was recorded as Reserve Forest as per the land records of 1950-52. A copy of the said Joint Inspection Report along 10 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
with maps of 1950-52 and 1979-80 is already annexed as Annexure-D1.
28. Therefore, it is clear that the suit land measuring an excess area 3.23 acres of land falls under the part and parcel of Tsalamthang, Reserve Forest under Burul Block, Bermiok, South Sikkim and the remaining area of 1.10 acres is a private holding.
29. It is submitted that on the basis of the said Joint Inspection Report, the defendant no.1 (Divisional Forest Officer, T), South issued a „Notice‟ dated 30/06/2017 to the plaintiff for immediate release of 3.23 acres of land (plot 311, 312, 312) which was registered in his name. It is further submitted that the in the said notice, the defendant no.1 has clearly directed the plaintiff to evacuate the aforesaid forest land immediately and take necessary action for de-registration from his record/possession. It is submitted that the plaintiff has not complied with the said direction. The copy of the said notice is already annexed herewith as Annexure-D2.
30. The said Bishnu Prasad Sharma had sold out the suit lands to different individuals. Therefore, in the different sale transactions from time to time, the portion of the said Reserve Forest having an area 3.23 was also erroneously got recorded in the name of private individuals from Reserve Forest."
6. The defendant no.3 and 4 also filed their respective
written statements.
7. On 20.09.2018 the learned Trial Judge framed the
following 8 issues:
" (1) Whether the present suit is maintainable in its present form or not? (Onus on Plaintiff).
(2) Whether the Defendant No. 1, 2 & 3 are liable to pay the compensation to the Plaintiff? (Onus on Plaintiff).
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RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
(3) Whether the suit is barred by law of limitation?
(Onus on Defendants).
(4) Whether the excess land/area of 3.23 acres is a reserve forest land as per the cadastral survey record of 1950-52 and whether the Plaintiff is in possession of the said excess land? (Onus on Defendants).
(5) Whether the suit of the Plaintiff grossly suffer from mis-joinder and non-joinder of necessary party? (Onus on Defendants).
(6) Whether the forest land can be transferred, alienated or de-reserved in terms of the Forest Conservation Act, 1980 without prior approval of the Central Government? (onus on Defendants no.1 and 2) (7) Whether the Defendant no.1 had the right, authority to issue letter bearing reference no. 369/DFO(D)/S dated 30.06.2017 and if so, whether it was issued bonafide or with ulterior motive? (onus on Plaintiff) (8) Whether the Plaintiff is entitled to any other relief or reliefs?"
8. The respondent examined himself and substantially
stated what was asserted in the plaint. Rishi Raj Pradhan
and Munna Kumar Pradhan, were also examined as
plaintiff's witnesses and examined on behalf of the
appellants. Peggyla Tshering Venchungpa, the Divisional
Forest Officer (Territorial Circle) South Division, Namchi
under the Forests and Environment Department,
Government of Sikkim (defendant no.2) deposed on behalf
of the appellants. Ashish Gurung, Range Officer (Territorial
Circle) North Division at Mangan along with Krishan
Kumar Pradhan, the Divisional Engineer of the Energy and 12 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
Power Department were also examined on behalf of the
appellants.
9. The learned Trial Judge rendered his judgment dated
24.12.2019 on all 8 issues.
10. Issue no.1, 3, 4, 5, 7 and 8 were held against the
appellants. Issue no.2 and 6 were held against the
respondent. Resultantly, the learned Trial Judge declared
the respondent the absolute owner of the entire suit land
and that the appellant no.1 had no right to issue letter
dated 30.06.2017 which was declared null and void. The
appellants are aggrieved by the judgment and have
preferred the present appeal. There is no cross appeal by
the respondent.
11. Heard the learned Additional Advocate General for the
appellants as well as Mr. T.B. Thapa learned Senior
Advocate for the respondent. The learned counsel for the
appellants raises a pertinent issue. It is her case that the
assertion made by the appellants in the written statement
regarding the suit land is not traversed by the respondent.
What was asserted in the written statement was that the
suit land which was covered by plot no.170/171 as per the
1950-52 cadastral survey record got renumbered as plot 13 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
no.311, 312 and 313 in the cadastral survey record of
1979-80. On 21.10.2016 there was a joint
survey/inspection of the suit land by the representatives of
the Forest Department, Land Revenue & Disaster
Management Department, Power and Energy Department,
Government of Sikkim and the present land owners. In the
survey/inspection the following facts were revealed:
(i) As per land records of 1950-52 plot
no.170/171 with an area of 1.10 acres was
recorded in the name of Shri Hari Krishna
Sharma son of Shri Bishnu Prasad Sharma.
(ii) The same plot was recorded in the name of
Bishnu Prasad Sharma, son of Lal Das
Sharma, as per the land records of 1979-80
and bears plot nos. 311, 312 and 313
measuring an area of 4.33 acres. It is
clearly seen that there is an excess of 3.23
acres of land as compared to the land
records of 1950-52, the excess land as per
the land records of 1950-52 is a reserve
forest. Bishnu Prasad Sharma had sold this
said land to different individuals and now it
is finally recorded in the name of
respondent. The same land is proposed for 14 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
the establishment of power sub-station by
the Energy and Power Department.
12. According to the learned counsel for the appellants
the failure to traverse these facts by the respondent
amount to an admission. It is also submitted that although
the same averment was made by the appellants in the
counter claim preferred by them no written statement was
filed by the respondent once again clearly amounting to
admission on the failure of the respondent to deny the
specific averments made. It is the submission of the
learned counsel for the appellants that no specific issue
with regard to the transaction between the son Hari
Krishna Sharma and the father Bishnu Prasad Sharma
which ultimately resulted in acquiring the excess suit land
had been framed by the learned Trial Judge and therefore,
there is no examination of this aspect which is the central
issue.
13. The learned counsel for the appellants seeks to rely
upon the following judgments in support of her
contentions. M. Venkataramana Hebbar vs. M. Rajagopal
Hebbar & Ors.1; Prahlad Pradhan & Ors. Vs. Sonu Kumhar &
1 (2007) 6 SCC 401 15 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
Ors.2; Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun
Kumar Bhardwaj3.
14. Mr. T.B. Thapa, learned Senior Counsel for the
respondent, vehemently supported the impugned
judgment. He submits that the judgment of the learned
Trial Judge is sound, well reasoned and must be upheld.
He further submits that although the appellants had
pleaded those facts in the written statement one must be
conscious of the prayer made by them in the counter claim.
If one were to examine the prayers in the counter claim and
more specifically the first relief sought i.e. a declaration
that defendant nos.1 and 2 are the absolute owners of the
excess area of 3.23 acres of land which was recorded as
reserved forest as per the land record of 1950-52 it would
be evident that the learned Trial Judge was not beyond
reason not to consider those averments in the written
statement as well as counter claim.
15. While examining issue no.4 the learned Trial Judge
recorded the case of the plaintiff as well as the defendants,
the evidence produced by them both oral and documentary.
The learned Trial Judge also recorded the submission of
the appellants that exhibit D-8 clearly shows that the area
2 (2019) 10 SCC 259 3 2021 SCC OnLine SC 868 16 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
of plot no.170/171 as per 1950-52 record shows that the
land owned by Hari Krishna Sharma son of Bishnu Prasad
Sharma was only 1.10 acres.
16. The learned Trial Judge concluded that the suit land
was once recorded in the name of Bishnu Prasad Sharma
which was ultimately purchased by the respondent after it
was sold by Bishnu Prasad Sharma to Ong Tshering Bhutia
who then sold it to Donkala Bhutia who further sold it to
Jumki Doma Bhutia, the last purchaser of the suit land
who sold it to the respondent. The learned Trial Judge held
that the evidence led by the respondent and his witnesses
could not be demolished by the appellants. On examination
of exhibit-D-8 (collectively) the learned Trial Judge held
that the same did not record the suit land as reserved
forest. The learned Trial Judge held that the No Objection
Certificate (exhibit-21) issued by the Assistant Conservator
of Forest (T) at the time of registration of suit land in favour
of the respondent, clearly proved that the suit land did not
fall within forest land. The learned Trial Judge also noted
the admission of the appellant no.1, during cross-
examination, that the forest department had not filed any
ownership document to show that suit land was owned by
the forest department. The learned Trial Judge doubted the
joint inspection report (exhibit-D-1) as he found that the 17 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
respondent was neither present during the joint inspection
nor had he signed it. The learned Trial Judge relied upon
Government Gazette dated 4th February 1984 (exhibit-11)
stating that in pursuance of Notification No.144/83-84/I
R./163/Gen/Est. dated 29.11.83 it is notified that the old
land records of 1951 which was in existence in the State of
Sikkim shall cease to be in operation and new land record
shall come into force with immediate effect. The learned
Trial Judge thus concluded that the respondent has proved
that he is the absolute owner of the suit land and the
appellants had failed to prove its ownership or the fact that
the suit land fell under "reserved forest".
17. The learned Trial Judge, however, did not come to any
finding as to how the suit land which was originally
recorded in the name of Hari Krishna Sharma, son of
Bishnu Prasad Sharma to be 1.10 acres became 4.33 acres
in the name of Bishnu Prasad Sharma. The records
revealed that the appellants had taken a specific plea both
in the written statement as well as in the counter claim as
above. The records also revealed that the respondent did
not file any written statement to the counter claim. Besides
issue no.4, no specific issue was framed by the learned 18 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
Trial Judge on this aspect. Resultantly, there is no finding
on this aspect.
18. The learned Senior Counsel for the respondent
submits that it is not an inflexible rule that in every case
the doctrine of non traverse would be applied on the
ground that no pleadings have been filed to meet the
opponents case: more so in a case where the original suit is
instituted by the party proposed to be penalised by the non
traverse.
19. A perusal of the plaint reveals that the respondent
was aware of the fact that Bishnu Prasad Sharma was the
original seller of the suit land which was ultimately
purchased by the respondent. There is no assertion with
regard to the transaction between Hari Krishna Sharma,
the son and Bishnu Prasad Sharma, the father. According
to the appellants the area of 1.10 acres of suit land
recorded in the name of Hari Krishna Sharma in the
khasra records of 1950-52 had become 4.33 acres in the
name of Bishnu Prasad Sharma in the khasra records of
1979-80. The narration of facts in the plaint does not reveal
that the respondent had knowledge about this transaction.
The fact was that the appellants had asserted so in the
written statement and the counter claim and it was not 19 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
disputed by the respondent by filing a written statement to
the counter claim. Failure to dispute a fact not known to
the respondent ought not to visit him with an adverse
finding. In such circumstances, it would be open still for
the learned Trial Judge to frame a specific issue and seek
evidence. Uncertainty of facts troubles the judicial mind. As
noticed above, although the learned Trial Judge noted the
assertion of the appellants on this aspect, he failed to
render a finding on it. Order VIII Rule 3 of the Code of Civil
Procedure, 1908 (CPC) provides that denial must be
specific. Rule 5 thereof provides that every allegation of fact
in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of
the defendant, shall be taken to be admitted. However, the
proviso thereof grants discretion to the court to require any
fact so admitted to be proved otherwise then by such
admission. Order VIII Rule 5 (2) CPC further provides that
where the defendants had not filed the pleading, it shall be
lawful for the court to pronounce judgment on the basis of
the facts contained in the plaint, except as against a person
under a disability, but the court may, in its discretion,
require any such fact to be proved. In the facts and
circumstances of the present case, the learned Trial Judge
could have exercised this discretion by framing a specific 20 RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
issue and permitting the appellants to lead evidence to
prove it. The failure to do so has resulted in this factual
uncertainty. Admittedly, the suit land passed on from
Bishnu Prasad Sharma to the respondent after several sale
transactions. Although the respondent has exhibited and
produced records of transaction between Bishnu Prasad
Sharma to Ong Tshering Bhutia, Ong Tshering Bhutia to
Donkala Bhutia and from Donkala Bhutia to Jumki Doma
Bhutia, there is no record of transaction between Hari
Krishna Sharma and Bishnu Prasad Sharma. There is also
no record of any title deed in favour of Bishnu Prasad
Sharma, the original seller. The only document which are
on record are the khasra/khatiyan records marked as
(exhibit-D-(8) collectively). The khatiyan copy of 1950-52
land record reflecting plot no.170/171 in the name of Hari
Krishna Sharma, son of Bishnu Prasad Sharma of an area
of 1.10 acres is also exhibited as (exhibit-D-(8) collectively).
It is not denied by the respondent that Hari Krishna
Sharma is the son of Bishnu Prasad Sharma and that plot
no. 170/171 in the 1950-52 record was later the suit land
consisting of plot no.311/312/313.
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RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
20. Resultantly, this court deems it fit and proper to
invoke the provisions of Order XLI Rule 25 of the CPC and
frame the following issues for trial:-
(i) Whether the suit land was originally
numbered as plot no. 170/171 as per the
cadastral survey of 1950-52 and measured
only 1.10 acres? (onus on the defendant
nos. 1 and 2)
(ii) Whether the same plot no. 170/171 as per
the Cadastral Survey of 1950-52 was
renumbered as plot no. 311/312/313 as
per the Cadastral Survey of the year 1979-
80 and recorded in the name of Bishnu
Prasad Sharma, father of Hari Krishna
Sharma, reflecting a total area of 4.33 acres
with excess area of 3.23 acres of forest land
included therein? (Onus on the defendant
nos. 1 and 2)
(iii) Whether the subsequent transfers of the
suit land initially from Bishnu Prasad
Sharma to the extent of the excess 3.23
acres, as claimed, could all be rendered
void? (onus on the defendant nos. 1 and 2);
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RFA No. 09 of 2020 Divisional Forest Officer (T) & Ors. Vs. Ashok Tshering Bhutia
21. The learned Trial Court shall examine the aforesaid
issues in terms of Order XLI Rule 25 CPC, conduct a trial
to ascertain the issues, take additional evidence, if
required, and return the evidence to this court together
with its findings thereon and the reasons therefor within a
period of six months from the date of the first appearance
of the parties as directed below. The parties shall present
themselves before the Court of the learned District Judge,
South Sikkim at Namchi on 13.05.2022 as suggested by
the learned counsel for the parties.
22. As this appeal is not finally decided, the observations
made herein are solely for the purpose of the order passed.
23. Copy of this order shall be transmitted to the Court of
the learned District Judge, South Sikkim at Namchi, for
compliance.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes/No
Internet : Yes/No
to
