Sikkim High Court
Smt. Roma Kanti Alley vs Shri Tenzing Chopel Bhutia on 7 August, 2023
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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S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley,
W/o Late Kamal Prasad Alley,
Aged about 83 years,
R/o Santa Bhawan, D.P.H. Road,
Arithang, Gangtok, Sikkim, 737 101.
..... Appellant/Plaintiff
Versus
Shri Tenzing Chopel Bhutia,
S/o Late Chongyam Bhutia,
Presently Residing at Hotel Sonar Bangla,
D.P.H. Road, Gangtok, Sikkim-737 101.
Permanent Address:
Upper Rongong, Tumlong GPU
Phodong, Mangan,
Sikkim-737 119.
.....Respondent/Defendant
Appeal under Order XLIII Rule 1 (r) read with Section 151
of the Code of Civil Procedure, 1908.
Impugned order dated 24.04.2023 in Title Appeal No.02 of 2023,
Tenzing Chopel Bhutia vs. Roma Kanti Alley passed by the
Hon'ble Principal District Judge, Gangtok, Sikkim setting aside the
order dated 31.12.2022 in Title Suit No. 46 of 2022; Roma Kanti
Alley vs. Tenzing Chopel Bhutia passed by the Ld. Civil Judge,
Gangtok Sikkim.
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Appearance:
Mr. B. Sharma, Senior Advocate with Mr. Umesh
Ranpal, Mr. Sajal Sharma and Ms. Shreya Sharma,
Advocates for the Appellant.
Mr. Karma Thinlay Namgyal, Senior Advocate with Mr.
Yashir N. Tamang, Advocate for the Respondent.
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Date of hearing : 07.07.2023.
Date of Judgment : 07.08.2023.
2
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This is a second appeal against the order dated
24.04.2023 passed by the learned Principal District Judge
in Title Appeal No.02 of 2023 filed by the respondent (the
defendant) against the appellant (the plaintiff). The
impugned order set aside the ex-parte order dated
17.12.2022 granting ad interim injunction restraining the
defendant from making any further construction on the
suit land and permitted it as the plaintiff could be
sufficiently compensated in terms of money if the suit
decrees in her favour. The learned Principal District Judge
also held that the irregularity of the plaintiff not having
deposited the court fees as per the rules could not curtail
the right of the plaintiff and set right the irregularity by
directing the defendant to deposit the court fees.
2. The plaintiff had filed a suit for declaration,
injunction, recovery of possession and other consequential
relief against the defendant. It was the Plaintiff's case that
her mother-in-law late Santa Maya Alley was the absolute
owner of plot no.548 measuring an area of 0.56 acres
situated near Church Road, DPH area, Gangtok (Schedule
'A' property). The plot was purchased by her from late
Bandana Raini in the year 1953 and the Plaintiff was
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
furnished the khasra khatiyan dated 17.01.2022 which
reflects that the (Schedule 'A' property) is recorded in the
name of late Santa Maya Alley.
3. It is the Plaintiff's case that she is now the head of the
family and therefore, the suit has been filed with the
consent of the other members of the family as a power of
attorney holder.
4. It is the Plaintiff's case that she has been in vacant
and peaceful possession of the entire Schedule 'A' property
covered by plot no.548 measuring 0.56 acres. She relies
upon the sale deed dated 12.05.1953 as well as the parcha
khatiyan dated 17.01.2022.
5. The Plaintiff asserts that she made two applications
dated 01.02.2021 and 23.03.2022 for verification and
demarcation of her land. However, the authorities did not
do so, compelling her to move another application on
29.09.2022 for spot verification pursuant to which notice
was issued to boundry holders to be present on
03.11.2022. However, the spot verification was not
conducted due to Panchayat election.
6. On 04.11.2022 the defendant started illegal
construction on a portion of Schedule 'A' property which he
had allegedly purchased from Tsukhlakhang Trust Private
Estate. The defendant although reluctant to show any
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
document to the plaintiff started clearing the land. On
inquiry the plaintiff learnt that the defendant was about to
start excavation in order to raise construction. The plaintiff
showed the defendant her registered sale deed which
reflected that the northern boundry of their land was the
jhora coming from the hospital area. The defendant
however, continued his illegal work. The defendant started
construction in the portion of Schedule 'A' property which
measures 30 feet by 15 feet = 450 square feet = 0.01 acres
which is the suit property and described as Schedule 'B'
property.
7. The plaintiff thereafter, filed a complaint under
section 145/147 of the Code of Criminal Procedure, 1973
(Cr.P.C.) before the District Magistrate vide application
dated 19.11.2022. The Additional District Magistrate
however kept the matter pending and issued letter dated
02.12.2022 with a copy of a joint inspection report
requiring the plaintiff to approach the court of law as the
matter was a civil dispute.
8. It is asserted that the joint inspection report also
clearly mentions that the defendant had trespassed into the
Schedule 'B' land.
9. The plaintiff asserts that the Government of Sikkim
has constructed a link road dissecting a major portion of
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
plot no.548 and a small remaining portion towards the
hospital jhora (i.e. the suit property) in the year 1981-83.
10. It is the case of the plaintiff that the records obtained
by the plaintiff from the District Registrar reveals that the
sale transaction and the registration of the sale deed
between Chogyal Wangchuk Namgyal (Private Estate) and
the defendant was illegal.
11. The plaintiff therefore, prayed for a declaration that
Schedule 'B' property forms part and parcel of Schedule 'A'
property and that defendant has no right title and interest
over the Schedule 'B' property. The plaintiff also sought for
declaration that the construction in the Schedule 'B'
property is illegal and liable to be stopped and for
demolition. The plaintiff further sought for khas and
peaceful vacant possession of the suit land as well as
permanent injunction restraining the defendant from doing
any further construction.
12. The plaintiff moved an application under Order 39
Rule 1 and 2 read with section 151 of the Code of Civil
Procedure (CPC) which was decided by the learned Civil
Judge on 31.12.2022.
13. The learned Civil Judge took note of the joint
inspection report which was held to have revealed that the
construction stood on plot nos.548 and 579; that the sale
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
deed dated 16.06.1952 reflected that plot no.548
measuring 0.56 acres extended up to the hospital jhora and
the pleading in the plaint that the link road from Hotel
Hungry Jack to DPH road passed through plot no.548
disecting the Schedule 'A' land below the road and
concluded that the plaintiff had made a prima facie case.
The learned Civil Judge was of the opinion that balance of
convenience/inconvenience was tilted more in favour of the
plaintiff than the defendant and if the construction of the
suit property was allowed, plaintiff and her family would be
deprived of their lawful right over the property thereby
causing irreparable loss which cannot be compensated
monetarily.
14. Aggrieved by the order dated 31.12.2022 passed by
the learned Civil Judge the defendant preferred an appeal
before the learned Principal District Judge who vide
impugned order dated 24.04.2023 opined that it would not
be proper to stall construction activities at the expense of
the plaintiff who should be permitted to continued the
construction since the plaintiff could be sufficiently
compensated in terms of the money if the suit decrees in
her favour. The learned Principal District Judge came to
this conclusion inter-alia on examination of a hand written
joint inspection report dated 21.11.2022 prepared by the
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
concerned authorities and comparing it with the typed copy
of the inspection report filed along with the plaint.
15. Aggrieved by the impugned order dated 24.04.2023
the plaintiff has preferred the present appeal. Notice was
issued on 10.05.2023 which was accepted as the learned
Senior Advocate had appeared on caveat on that day. This
Court deemed it fit to direct status quo.
16. On 30.05.2023 this Court directed the Additional
District Collector to forward the entire records which were
complied with and continuation of the status quo which
continues till date.
17. On 15.06.2023 considering I.A. No. 01 of 2023 for
stay, the reply thereto, the nature of dispute and on
agreement by the learned counsel for the parties a joint
inspection was directed by the concerned authorities on
28.06.2023. This Court further directed that the District
Collector shall depute a senior officer of the Directorate
with two Senior Amins for the joint inspection and further
that the District Collector may also take assistance of an
officer of the Land Revenue and Disaster Management
Department, Government of Sikkim. A comprehensive and
independent report was directed to be placed before this
Court on or before 30.06.2023 which shall include the
following:
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
"(i) The extent of area and boundary of plot no. 548
which according to the parcha khatiyan issued on
11.07.1990 in favour of Santa Maya Alley is 0.56
acre.
(ii) The boundry of plot no.548 should be clearly
demarcated and the report should also indicate
whether the part of plot no.548 falls below the road
as well and if so, the exact area thereof.
(iii) The extent of area and boundry of plot no.579/P
which according to the sale deed document dated
26.06.2021 in favour of Tenzing Chopel Bhutia is
0.01 acre.
(iv) The boundry of plot no.579/P should be clearly
demarcated and the report should also indicate
whether the construction made by Tenzing Chopel
Bhutia is within plot no.579/P or whether part of
the construction has encroached upon any part of
plot no.548 falling below the road and if so, the
exact area thereof.
(v) The report shall be prepared and submitted in typed
form which shall be signed by all the officers taking
part in the joint inspection and the joint inspection
report shall be verified to be true and correct by
them.
(vi) The joint inspection shall be conducted in the
presence of the parties or their authorized
representatives and their presence shall also be
marked in an attendance sheet to be signed by
them which shall form part of the joint inspection
report."
18. Pursuant to the said direction the Revenue Officer,
District Collectorate has forwarded a joint inspection report
conducted on 28.06.2023 (joint inspection report). The joint
inspection report records that it was conducted in the
presence of the plaintiff and the defendant along with
officials from Land Revenue Department Head Office and
District Administrative Centre, Gangtok on 25.06.2023 and
also annexes attendance sheet of the persons present
during the joint inspection. The joint inspection report
records the following:-
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
"1. That the area of plot No. 548 which is situated
above the road measuring 0.56 acre as per parcha/Khatiyan
issued on 11/07/1990. However upon inspection it is found
that the appellant is the possession of 0.84 acres of land,
bearing plot no.548.
2. That the land bearing Plot no. 548 is found
extended in a triangular shape on the southern side hence
the said land is measured in two parts to get the exact and
correct dimension/measurement which are butted and
bounded as follows:-
East: Church Compound-150' East: Church Compound-57'
West: Link Road-182' West: Own Land -12'
North: Link Road & Foothpath-241' North: Own land-30'
South: Jhora and Neil Tara Academy-186' South : Jhora-87'
(Total area 37,459 sq.ft or 0.85 acres).
The Plot No. 548 does not fall below the road as per
the map and land record of Gangtok Station Block.
3. That the construction site of respondent Mr. Tenzing
Chopel Bhutia which falls under plot No.579/P is butted and
bounded by:-
East: Vacant land of Private Estate - 19'
West: Vacant land of Private Estate - 23'
North: Jhora - 38'
South: Link Road-38'.
(Total area 789 sq.ft or 0.01 ½ Acres)
4. That the construction of the respondent Mr. Tenzing
Chopel Bhutia is within Plot no.579/P which is situated
below the road. It is also found that there is no
encroachment on the part of plot No.548.
However, during the inspection the following claims were made
by the appellant. She showed her boundary physically and we have
measured and found as follows:-
(a) That the area above the road measures 0.85 acres
which falls under plot No. 548.
(b) That the appellant claimed that the road also is part of
her property. Inclusive of the road her area measures
1.01 acres however road as per map and land record
falls under the portion of plot No. 579.
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
(c) That the appellant also claimed land below the road on
which the new construction of the respondent is taking
place. Her area inclusive of the land as claimed above
measure 1.10 acres, however land below the road
falls under portion of plot No 579 as per the land record
of Gangtok Station block.
The total area as claimed by appellant
(Smt.Roma Kanti Alley measures 1.10 acres
on the ground. However in the land record
she only possesses 0.56 acre.
(d) However, it is found that on the sale deed document of
the appellant shows following boundaries:-
North- Jhora from Hospital
South- Police Station Jhora
East - Church Compound
West- Rented Compound of Shri Panch Maharaja and
Sir Tashi Namgyal".
19. Although the parties had, as reflected in the order
dated 15.06.2023, agreed for the joint inspection, on
receipt of the joint inspection report the plaintiff filed
written objection. The objections were :-
(i) The mother-in-law of the plaintiff had
purchased plot no.548 in terms of
seeds and not in terms of acres or
hectares. The report showed that it
measured only 0.56 decimals which
are lesser in area than what she had
purchased in the year 1952.
(ii) The survey team had conducted the
measurement in two parts which
creates confusion and resulted in their
conclusion that plot no.548 did not
fall below the road.
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
(iii) Although the defendant states that he
had purchased 0.01 acres the report
suggest that he had purchased 0.01/2
acres. There is no clarity in the
boundaries to the east and other
boundaries.
(iv) There are various anomalies since the
survey team did not make the report
on the basis of boundaries as the case
of the plaintiff has always been that
her land was bounded by two jhoras.
20. Mr. B. Sharma, learned Senior Counsel for the
plaintiff insisted that the plaintiff had a prima facie good
case against the defendant and the balance of
convenience/inconvenience was also in his favour. Drawing
attention of the sale deed dated 16.06.1952 the learned
Senior Counsel submitted that the boundaries mentioned
therein clearly reflected that the Schedule 'B' property was
also part of Schedule 'A' property belonging to the plaintiff.
It was argued that the area of land mentioned therein was
equivalent to "one pathi, four manas" which would also
reflect that Schedule 'B' property is part and parcel of
Schedule 'A' property as reflected in the sale deed dated
16.06.1952.
21. The learned Senior Counsel also drew attention to a
document dated 30.06.1956 relating to a dispute regarding
construction of irrigation canal by one Gyaltsen Tshering in
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
the land of late Santa Maya Alley and Private Estate
regarding dispute of the boundary. The learned Senior
Counsel relied upon Maharwal Khewaji Trust (Regd.), Faridkot
vs. Baldev Dass1.
22. In Maharwal (supra) the appellant therein had filed a
civil suit for possession of the schedule property with an
application under Order 39 Rule 1 and 2 CPC seeking
injunction restraining the respondent from alienating the
suit property and putting up any construction thereon. The
Trial Court granted an order of temporary injunction. The
appeal filed by the respondent before the learned District
Judge came to be allowed holding that alienation made, if
any, will be subject to the law of lis pendens and
constructions, if any, put by the respondent will have to be
removed at his own risk and costs in the event the suit
being decreed. The Supreme Court held that unless and
until a case of irreparable loss and damage is made out by
a party to the suit, the court should not permit the nature
of the property being changed which also includes
alienation or transfer of the property which may lead to loss
or damage being caused to the party who may ultimately
succeed and may further lead to multiplicity of
proceedings. In the facts of the case it was held that the
1 (2004) 8 SCC 488
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
lower Appellate Court and the High Court were not justified
in permitting the respondent to change the nature of the
property by putting up construction as also by permitting
the alienation of the property, whatever may be the
conditions on which the same is done. In the event of the
appellant's claim being baseless ultimately, it is always
open to the respondent to claim damages or, in any
appropriate case, the court may itself award damages for
the loss suffered, if any, in this regard. Since the facts of
the case did not make out any extraordinary ground for
permitting the respondent to put up construction and
alienate the same, the High Court and the lower Appellate
Court had erred in making the impugned order which was
accordingly set aside. The learned Trial Court order was
restored.
23. In Maharwal (supra) when the appellant therein had
filed a civil suit for injunction there was no construction on
the land. In the present case before us it is also the
plaintiff's case that the defendant had started construction
and therefore, she prayed for a declaration that the
construction in the Schedule 'B' property was illegal and
liable to be stopped. The plaintiff further prayed for
permanent injunction restraining the defendant from doing
any further construction. The facts in Maharwal (supra) are
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
different than the facts before this Court in the present
case.
24. In Mandali Ranganna & Ors. vs. T. Ramachandra &
Ors.2 the appellant therein was aggrieved by the judgment
and order passed by the High Court by which the private
respondents were allowed to make constructions on the
suit land subject to final decision therein. A further
direction that any alienation or creation of any interest by
the defendants would be subject to the decision of the suit
was also passed. The Supreme Court noted that rightly or
wrongly construction had come up and therefore, they
cannot be directed to be demolished at this stage. It was
also noted that respondent no.7 is said to have spent three
crores of rupees and if that be so, the Supreme Court
opined, it would not be proper to stop further construction.
The Supreme Court therefore, opined that the interest of
justice would be subserved if while allowing the
respondents to carry out constructions of the buildings, the
same is made subject to the ultimate decision of the suit. It
was directed that the suit is decided as early as possible; if
any third party interest is created upon completion of the
constructions, the deeds in question shall clearly stipulate
that the matter is sub judice and all sales shall be subject
2 (2008) 11 SCC 1
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
to the ultimate decision of the suit. The respondents were
required to furnish sufficient security before the learned
Trial Judge within four weeks which was assessed at
rupees one crore.
25. In the plaint it was the plaintiff's case that the
defendant had started illegal construction and continues
with it despite being asked to stop by the plaintiff. It seems
that during the period of these proceedings further
construction has taken place.
26. Save for the boundry being recorded as hospital jhora
on the north the plaintiff has not made out a prima facie
case as there is little clarity as to whether the Schedule 'B'
land is actually part of plot no.548 beside her pleadings.
The argument that the initial purchase of plot no.548 being
in seeds and not an area, the actual area would be much
more is a matter to be proved during trial. The learned Civil
Judge had taken note of the fact that the joint inspection
report earlier had recorded that the construction falls
under both plot nos.548 and 579. Since extensive
arguments were made by the learned Senior Counsel for
the parties regarding the discrepancies in the joint
inspection report due to the existence of a hand written
joint inspection report as well, this Court deemed it fit to
direct joint inspection in the presence of parties as stated
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
above. The joint inspection report makes it clear that no
part of the construction falls in plot nos. 548. It is not the
plaintiff's case that plot nos. 579 is owned by her and her
family although it is their case that the construction on
Schedule 'B' land is within plot no.548 which is owned by
her. The joint inspection report also clearly records that the
plaintiff and her family are in possession of plot no.548
with a total area of 0.84 acres of land, which is much more
than the area of 0.56 acres as recorded in the parcha
khatiyan obtained by the plaintiff's family in the year 1990.
This being the situation the balance of convenience is also
not in the favour of the plaintiff. In contract the defendant
states that he purchased a Schedule 'B' land falling under
plot no.579 from Chogyal Wangchuk Namgyal. The copy of
the sale deed registered on 14.02.2022 also reflects the
fact. The construction started by the defendant on
Schedule 'B' land is pursuant to an approved blue print
plan. According to the defendant he has also purchased
raw material i.e. cement, rods, chips, stones and timber
which are lying in the construction site and if not utilized
would be damaged. The balance of
convenience/inconvenience would therefore be in favour of
the defendant as injucting the further construction in plot
no.579 purportedly purchased by the defendant from
Chogyal Wangchuk Namgyal who has not been made party
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
defendant by the plaintiff, would cause the defendant loss
and injury.
27. Section 149 of the CPC provides that where the whole
or any part of any fee prescribed for any document by the
law for the time being in force relating to court fees has not
been paid, the Court may, in its discretion, at any stage,
allow the person, by whom such fees payable, to pay the
whole or part, as the case may be, of such court-fee; and
upon such payment the document, in respect of which
such fee is payable, shall have the same force and effect as
if such fee had been paid in the first instance. The
objection of the learned Senior Counsel for the plaintiff that
in view of rules 5 (2), (4) and (5) read with Schedule (A) to
the Sikkim State Rules Re: Court Fees and Stamps on
Documents it was incumbent upon the defendant to have
paid the court-fees in advance and since it was not done
the impugned judgment could not have been passed by the
learned Principal District Judge, is not sound as it would
only be a curable irregularity. The learned Principal District
Judge having permitted the defendant to pay the court-fees
the irregularity of not paying the court-fees in advance
before preferring the appeal stood cured. The learned
Senior Counsel for the defendant submits that pursuant to
the said direction the court-fee was paid on 27.04.2023.
Thus, this Court finds that the reasoning of the learned
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
Principal District Judge in considering the objection only
an irregularity was correct.
28. This Court is therefore, of the opinion that interest of
justice would be subserved if the defendant is allowed to
continue the construction of the building at his risk subject
to the ultimate decision of the suit. The defendant must
furnish sufficient security before the learned Civil Judge to
her satisfaction who shall assess the same. Until then
status quo order passed earlier shall continue. The learned
Civil Judge is requested to hear out and dispose the suit as
early as possible. The defendant shall not create third party
rights on the disputed property.
29. The appeal is rejected and the impugned order dated
24.04.2023 passed by the learned Principal District Judge
in Title Appeal No.02 of 2023 filed by the defendant is
modified to the above extent.
30. The observation on facts made in this judgment are
made for the purpose of examining the issues raised in the
proceedings against the impugned order at this preliminary
stage and for the disposal of the present appeal only. The
Trial Court shall not be prejudiced by the observations
made herein during the trial.
S.A.O. No. 01 of 2023
Smt. Roma Kanti Alley vs. Shri Tenzing Chopel Bhutia
31. Pending interlocutory application is also disposed
accordingly. The registry shall return the file received from
the Additional District Collector to the authority forthwith.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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