Sikkim High Court

Tashi Dawa vs Keshari Pradhan And Ors on 17 August, 2023

Bench: Meenakshi Madan Rai

           THE HIGH COURT OF SIKKIM : GANGTOK
                                   (Civil Appellate Jurisdiction)
                                   Dated : 17th August, 2023
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   SINGLE BENCH : THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                       RSA No.08 of 2019
      Appellant                :       Tashi Dawa

                                          versus

      Respondents              :       Keshari Pradhan and Others

            Appeal under Section 100 read with Section 151
                      of the Code of Civil Procedure, 1908
      ----------------------------------------------------------------------------------------
       Appearance
            Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad, Advocate for
            the Appellant.
            Mr. B. Sharma, Senior Advocate with Mr. B. N. Sharma and Ms.
            Shreya Sharma, Advocates for the Respondents.
      -----------------------------------------------------------------------------------------
                                       JUDGMENT

Meenakshi Madan Rai, J.

1. The Appellant and the Respondents both lay claim to

the suit property, the former by way of a Gift Deed, allegedly

executed by the original owner of the property in his favour and

the latter by claiming adverse possession, merely by virtue of

having been in occupation of the premises allegedly for about

seventy years and in the same breath by a contrary alternative

claim of an oral gift made to them, in the year 1980, by the then

Chogyal of Sikkim.

2. The Appellant/Plaintiff had filed a "Suit for Eviction,

Recovery of Possession and Mesne Profits", against the

Respondents/Defendants before the Learned Trial Court, claiming

that one Prince J. T. Namgyal had gifted him a portion of land

bearing plot no.1227/1970, situated at Tibet Road, Gangtok, along

Tashi Dawa vs. Keshari Pradhan and Others

with an old double storied wooden house, vide the "Gift Deed",

Exhibit 4, dated 19-11-1999, registered in the year 2000 and

described accordingly in the Schedule to the Plaint. The

Respondents were in possession of one portion of the upper storey

of the wooden house as tenants. On registration of the Gift Deed,

the Appellant requested the Respondents to vacate the premises to

enable him to demolish the dilapidated structure and raise an RCC

building for his bona fide use. That, as none of the Respondents

were residing in the suit premises, they agreed to vacate by

December, 2005 but failed to do so and thereby became

trespassers on the property from 01-01-2006. The Appellant

sought eviction of the Respondents from the suit premises,

recovery of ₹ 81,000/- (Rupees eighty one thousand) only, as

mesne profits from 01-01-2006 to 31-03-2008 @ ₹3,000/-(Rupees

three thousand) only, per month, mesne profits @ ₹ 3,000/-

(Rupees three thousand) only, per month, from 01-04-2008 until

final recovery, along with other reliefs.

(i) The Respondents contesting his claims, in their written

statements sought dismissal of the suit which allegedly lacked

proper identification of the schedule property. That, their

possession of the suit premises for more than 70 years confers on

them the right, title and interest thereon by way of adverse

possession. That, the suit property in fact belonged to the "Private

Estate" and as ownership of such property was yet to be decided

by the Government, J. T. Namgyal the Donor, was not the owner of

the property and thereby incompetent to alienate it. That, the Gift

Deed document, Exhibit 4, was dehors the provisions of the

Transfer of Property Act, 1882, (hereinafter, the "TP Act"), making

Tashi Dawa vs. Keshari Pradhan and Others

the Gift redundant. The bona fide requirement and the dilapidated

condition of the wooden house were denied as also the claim that

the Appellant was a Sikkimese Tribal. It was averred in their

Counter-Claim inter alia that not only were they owners by adverse

possession for seventy years but the suit premises was orally gifted

to them by the then Chogyal in the year 1980. The suit is also

barred by res judicata as Eviction Suit No.10 of 1996 (sic, Eviction

Suit No.11 of 1996) filed by J.T. Namgyal on the same grounds,

against the same parties was dismissed in default, hence the

Plaintiff cannot put forth the same pleas in a new Suit. The

Respondents sought a declaration that they are the owners of the

property by way of adverse possession and in the alternative as

owners in terms of the oral gift.

3. Based on the pleadings of the parties, the Learned Trial

Court settled four issues for determination and took up Issue No.1

first for consideration and determination viz;"Whether the Plaintiff is

the owner of the suit property, if so, whether the suit property was

legally registered and mutated in his name? (Onus on the Plaintiff)". The

Learned Trial Court discussed in detail the short-comings in Exhibit

4, the Gift Deed, allegedly issued by the Donor J. T. Namgyal to

the Donee Appellant. Relying on Rule 10 of the "Sikkim State

Rules, Registration of Document Rules, 1930" (hereinafter, the

"Registration Rules, 1930"), the Court opined that the alterations

and corrections in Exhibit 4 fell short of the requirement of Rule 10

of the Registration Rules, 1930, as erasures or alterations on the

document must be attested by the parties to it with their

signatures before acceptance for registration, which was not

complied with in Exhibit 4. That, the TP Act which has been

Tashi Dawa vs. Keshari Pradhan and Others

enforced in the State requires two attesting witnesses, however in

the absence of express repeal of the Registration Rules, 1930, it

cannot be said to be impliedly repealed. That, mere registration of

Exhibit 4 would not make it valid, legal and proved, when there are

clear violations and errors committed during its registration. That,

the Appellant failed to examine witnesses to substantiate the fact

of execution of Exhibit 4. The Appellant, besides examining

himself, examined only one Nedup Pintso who did not have first

hand knowledge of Exhibit 4, while another attesting witness

Rinchen Bhutia had passed away, but no efforts were made to

produce witnesses T. J. Namgyal and Kumar Chettri, the latter

having appeared once in Court but the date stood deferred on

account of his sudden ill-health and on the next date he was

dropped as witness. The Appellant also did not produce the

Registration Clerk, one Mohan Rai, who had processed the

registration of Exhibit 4. It was next observed that Exhibit 4 only

disclosed the plot number with no indication of the existence of a

house thereon. That, Exhibit 5, the Mutation document mentioned

that land measuring 2016 sq. ft situated at Gangtok had been

mutated in the name of the Plaintiff with a tick mark appearing

against "vacant land" on the document with no reference to any

wooden structure on it. Thus, it remained vague as to whether the

wooden structure was gifted along with the land. The Learned Trial

Court went on to observe that Exhibit 6 [collectively], which

includes the spot Verification report of the Head Surveyor records

the date of verification as 03-01-1999, whereas Exhibit 4 the

alleged Gift Deed was presented for registration on 19-11-1999,

indicating that the spot Verification preceded the execution of the

Tashi Dawa vs. Keshari Pradhan and Others

Gift Deed. The Court was thus inclined to note that such

discrepancies along with the non-production of the concerned

attesting/registration witnesses, led to an adverse inference

regarding the validity and legality of the registration process. That,

as the Appellant had failed to prove execution and valid registration

of Exhibit 4, he cannot be deemed to be the owner of the suit

premises.

(i) Issue no.4 "Whether the Plaintiff is entitled to a decree of

eviction and recovery of possession including mesne profits as claimed?

(Onus on the Plaintiff)", was taken up next and it was concluded that

as the Appellant was not the owner of the suit premises he could

not under any title, claim eviction, recovery of possession or mesne

profits.

(ii) In Issue no.3, "Whether the suit property was infact gifted

to the defendant no.1 by way of oral gift by the Maharaja of Sikkim?

(Onus on the defendants)", it was found that no evidence was

brought by the Defendants to substantiate their claim of oral gift by

the Maharaja of Sikkim in the year 1980, the issue stood decided

against the Defendants.

(iii) In Issue No.2 "Whether the claim of the defendant on the

suit property as owner, by way of adverse possession is maintainable?

(Onus on defendants)", the Learned Trial Court held that the

Defendants had made conflicting claims about the suit property

i.e., that it was orally gifted to the family of the Respondents by

the Maharaja of Sikkim in 1980 and also claimed adverse

possession over the same property. That, long possession as

claimed by the Respondents is not adverse possession, unless

there is animus possidendi. Accordingly, the issue was decided

Tashi Dawa vs. Keshari Pradhan and Others

against the Defendants. Ultimately on account of the observations

made in the issues as reflected hereinabove, the Plaint and the

Counter-Claim were dismissed.

4. Aggrieved, the Appellant approached the Court of the

Learned District Judge, Special Division ─ II, at Gangtok. The

Learned First Appellate Court in the first instance inter alia

observed that as the Respondents/Defendants application for

Cross-Appeal/Cross-Objection under Order XLI Rule 22 of the Code

of Civil Procedure, 1908 (hereinafter, the "CPC"), assailing the

findings of the Learned Trial Court with regard to Issues No.2 and 3

was dismissed by the Learned First Appellate Court vide Order

dated 28-12-2018, on grounds that it was filed belatedly, the

findings of the Learned Trial Court on the said issues, had attained

finality and the First Appeal was therefore confined to Issues No.1

and 4. This finding has not been assailed before this Court and

hence no further discussion need ensue on this count.

(i) Without resettling the issues or specifically referring to

any issue that was being considered, the Learned First Appellate

Court embarked on a discussion on Exhibit 4, the Gift Deed. The

Appellate Court alike the Trial Court found that there were erasures

and alterations on the document sans attestation by parties which

amounted to non-compliance of Rule 10 of the Registration Rules,

1930. However, disagreeing with the Trial Court which had opined

that mere registration of Exhibit 4 would not make it valid, legal

and proved, the Appellate Court relied on the decision in Satya Pal

Anand vs. State of Madhya Pradesh and Others [(2016) 10 SCC 767],

wherein it was observed that irregularity in the procedure

committed during the registration process would not mean

Tashi Dawa vs. Keshari Pradhan and Others

fraudulent execution or fraudulent registration of document. The

Appellate Court also disagreed with the Trial Court on the aspect of

gift of the wooden structure by the Donor to the Appellant and

reasoned that although Exhibit 4 does not mention the concerned

wooden structure, nevertheless as the Donor had intended to gift

the land to the Appellant there was no reason for him to retain the

dilapidated wooden structure occupied by the Respondents, which

did not even fetch him good income. The Court, on the edifice of

Section 8 of the TP Act observed that when an immovable property

is transferred, all improvements and permanent structures

standing on it and attached to the Earth would also stand

transferred to the transferee unless there is any intention to the

contrary.

(ii) The Learned First Appellate Court also disagreed with

the finding of the Learned Trial Court that the Registration Rules,

1930 were still applicable not having been expressly repealed. The

Appellate Court opined contrarily that, Exhibit 4 was executed

between the Donor and the Donee in the year 1999 and was

thereby governed by the TP Act and not the pre-merger laws viz.,

the Registration Rules, 1930, which according to the Appellate

Court, governed registration and transfer of property in Sikkim only

prior to the merger. That, since Exhibit 4 was not attested by two

or more witnesses in terms of Section 123 of the TP Act, which is

mandatory, Exhibit 4 cannot be held to be a valid document.

Consequently, the Appeal was dismissed, whereupon the Appellant

is before this Court.

5. In this Second Appeal, three substantial questions of

law were formulated for determination by this Court;

Tashi Dawa vs. Keshari Pradhan and Others

(i) Whether the provisions of Article 254 of the Constitution of India are applicable to Article 371F(k) of the Constitution of India?

(ii) Whether the provisions of Sikkim Registration of Documents Rules, 1930 have been superseded by the provisions of the Transfer of Property Act, 1882 and is to be mandatorily followed?

(iii) Whether the Defendants/Respondents being third party have locus standi to challenge the Gift Deed in favour of the Plaintiff/Appellant?

6. Before embarking on a discussion and decision on the

substantial questions of law formulated hereinabove, the

peculiarities pertaining to the proceedings in the Title Suit are

being delved into.

(i) The records received from the Learned Trial Court

reveal that the matter was initially filed before the Court of the

Learned District Judge, East and North Sikkim, at Gangtok, as an

Eviction Suit, being Eviction Suit No.03 of 2008 (Shri Tashi

Dawa vs. Smt. Shanti Pradhan and Others). The suit was valued at ₹

1,50,000/- (Rupees one lakh and fifty thousand) only, and a sum

of ₹ 9,000/- (Rupees nine thousand) only, was deposited as Court

fees as per the prevalent Rules. On 24-11-2014, Learned Senior

Counsel for the Defendants filed a Petition purportedly under

Notification No.14/LD/P/2013, dated 22-10-2013, on 19-11-2014

and on 25-11-2014 the Petition was heard by the Learned Court.

The Order dated 25-11-2014 inter alia reads as follows;

".......................................................... Yesterday, the parties were heard on the petition purported to be filed under Notification No. 14/LD/P/2013 dated 22.10.2013 on 19.11.2014.

It is submitted by Ld. Senior Counsel for the Defendants No.1 and 3 that in view of the above- mentioned Notification, the valuation of the Suit being less than ₹ 5,00,000/- (Rupees five lakhs) only, this Court has no jurisdiction to proceed with the matter as the Suit refers to the Defendants as Trespassers and claims for mesne profit. That it is,

Tashi Dawa vs. Keshari Pradhan and Others

in fact, not a Suit for Eviction under the Gangtok Rent Control Act, 1956 but a Suit against the Defendants for Recovery of Possession as they are said to be in occupation of the Suit Premises as Trespassers.

Per contra, it is submitted by Ld. Senior Counsel for the Plaintiff that the Hon‟ble High Court has observed in a matter involving Calcutta Hardware, the exact citation of which he cannot recall today, that the Court of the District Judge is also a Civil Court and is not debarred from taking up matters which are below its pecuniary jurisdiction. Ld. Senior Counsel for the Plaintiff, however, concedes that the suit is against the Defendants as Trespassers on the Suit Property and, hence, for Recovery of Possession from them and also for mesne profits. That there is, in the circumstances, no relationship of Landlord and Tenant between the parties.

.........................................................."(emphasis supplied)

(ii) The Learned Court in view of the afore-mentioned

circumstances and the consensus arrived amongst the Learned

Senior Counsel for the parties in their submissions as reflected

above and in terms of the pecuniary jurisdiction prescribed in the

Notification supra and further in terms of letter of this High Court

bearing Ref. No.V(152)Confdl/HCS/6451, dated 13-12-2013,

directing the District Courts to forward Suits of valuation of less

than 6(six) lakhs to the Courts which had pecuniary jurisdiction,

except eviction matters, forwarded the records of the Suit to the

Court of the Learned Civil Judge, East and North Sikkim, at

Gangtok, for trial and disposal as per Law. On 26-11-2014, the

suit was however registered as an "Eviction Suit" in the Judicial

Service Centre and the parties summoned by the Court.

(iii) Records also reveal that on 08-09-2016, in alarming

contradiction to the earlier statement of Learned Senior Counsel

for the Defendants that the Suit was not one for Eviction, he filed a

Petition before the Court of the Learned Civil Judge, (where the

matter was pending), under Order VIII (sic, Order VII) Rule 11

Tashi Dawa vs. Keshari Pradhan and Others

read with Section 151 of the CPC, seeking rejection of the Plaint on

grounds that the Suit appeared to be barred by law, as it was an

"Eviction Suit" as reflected in the Cause Title and the subject

matter of the Plaint. That, simply calling the Defendants

trespassers would not absolve the Plaintiff from proving the fact

that it was not an Eviction Suit but a Suit for recovery of

possession. On the other hand, the Learned Senior Counsel for the

Plaintiff recapitulated that; before the Learned District Judge, the

Defendants had referred to themselves as trespassers and that the

Suit of the Plaintiff was for recovery of possession and not an

Eviction Suit. That, the Counsel for the Defendants had agreed to

the Order of the Learned District Judge dated 25-11-2014 and not

sought any review/appeal of the said Order and hence, was

estopped from claiming one thing at one point of time and another

at a later point. The Petition under Order VII Rule 11 was rejected

by the Court reasoning that the matter had already been settled by

the Order dated 25-11-2014 of the Learned District Judge. The

records are also revelatory of the fact that pursuant to the transfer

of the Suit to the Court of the Learned Civil Judge, no fresh issues

were settled for determination by the said Court in terms of Order

XIV Sub-rule 5 of the CPC and the same issues settled by the

Learned District Judge on 11-12-2013 were taken up for

consideration and determination.

(iv) It thus becomes imperative to record here that the

Learned Senior Counsel for the Respondents/Defendants cannot

approbate and reprobate on the same point with the goal of

gaining advantage. In Union of India and Others vs. N. Murugesan

Tashi Dawa vs. Keshari Pradhan and Others

and Others , the Supreme Court held that an element of fair play is

inbuilt in the aforestated principle which is a species of estoppel

dealing with the conduct of a party. Having elected to submit

before the Learned District Judge that the suit is not for eviction

but only for recovery of possession, the Defendants being

trespassers, he could not have before the Learned Civil Judge

claimed that the suit was barred by law, being one for eviction.

Moreover, the order of the Learned District Judge was passed on

the parties reaching a consensus on the legal point that the suit

was not one for eviction.

(v) Pertinently, it is to be noted that only the Court of the

Learned District Judge and not the Learned Civil Judge has

jurisdiction to decide Eviction Suits in view of the Gangtok Rent

Control and Eviction Act I of 1956, which provides inter alia as

follows;

"4. A Landlord may not ordinarily eject any tenant. When, however, the whole or part of the premises are required for the bonafide occupation of the landlord or his dependents or for thorough overhauling (excluding additions and alterations) or when the rent in arrears amount to four months rent or more, the landlord may evict the tenant on filing a suit of ejectment in the Court of the Chief Magistrate .

....................................." (emphasis supplied)

(vi) A Division Bench of this High Court vide Order dated

11-05-1987 in Civil Reference No.1 of 1987 (Tekchand

Agarwal vs. Prem Prakash Agarwal and Another) had observed inter

alia in Paragraph 6 as follows;

"6. In view of the above position, we are of the view that the Chief Magistrate (equivalent to the Court of the District Judge) shall not henceforth accept any deposit of rent in his Court and this practice shall be discontinued forthwith."

(emphasis supplied)

(2022) 2 SCC 25

Tashi Dawa vs. Keshari Pradhan and Others

7. That having been settled, in Second Appeal before this

Court, Learned Senior Counsel for the Appellant while addressing

the substantial questions of law no.1 and 2 together submitted that

both laws i.e., the Registration Rules, 1930 and the TP Act apply

conjointly in the State as there is no repugnancy between Rule 7 of

the Registration Rules, 1930 which deals with registration of

documents and Section 123 of the TP Act which is concerned with

transfer of property. To buttress this submission, reliance was

placed on Vijay Kumar Sharma and Others vs. State of Karnataka and

Others , which was decided with five other connected Writ Petitions.

Inviting the attention of this Court to the Indian Registration Act,

1908, (hereinafter, the "Registration Act"), it was submitted that

the Act provides for registration of documents, whereas the TP Act

deals with transfer of immovable property. That, Section 1 of the

Registration Act provides inter alia that it extends to the whole of

India. That, however, as the Registration Act has so far not been

extended and enforced in Sikkim, the provisions of Section 123 of

the TP Act are also inapplicable to the State as elucidated in the

non-obstante provision of Section 1 of the TP Act. That, if Section

123 of the TP Act is to be enforced in this State, a separate

notification is required to be issued by the Government notifying

such enforcement. That, the old laws i.e., those made prior to

Sikkim being part of the Indian Union are protected laws under

Article 371F(k). That, only in the circumstance of Article 371F(n)

new legislation can be enforced in the State of Sikkim. That, in the

absence of enforcement of Section 123 of the TP Act to the State,

Exhibit 4 has been validly executed, there being no specific

(1990) 2 SCC 562

Tashi Dawa vs. Keshari Pradhan and Others

requirement of two attesting witnesses to the execution of Gift

deed in the Registration Rules, 1930 which prescribes the presence

of one witness for execution and registration of the Gift Deed.

(i) Justifying the reasons for non-examination of witnesses

to establish the execution of Exhibit 4, it was contended that

witness Rinchen Bhutia passed away, while Kumar Chettri fell ill, on

account of his continuing illness the Appellant was constrained to

drop him as a witness. On 28-09-2016, the Donor himself passed

before the commencement of the Plaintiff‟s evidence. That, the

proviso to Section 68 of the Indian Evidence Act, 1872 (hereinafter,

the "Evidence Act") states that it is not necessary to call an

attesting witness in proof of the execution of any document when it

is not a Will, and has been duly registered, unless the executor

denies its execution. There was no denial of execution of Exhibit 4

by the Donor. This contention was buttressed by the ratio in

Surendra Kumar vs. Nathulal and Another .

(ii) In the next leg of his argument, it was asserted that,

the Appellant is a Bhutia and thus a Sikkimese Tribal and holds a

Certificate of Identification (COI). That, Exhibit 2, the Sikkim

Subject Certificate (SSC) of his father declares the holder to be a

Sikkimese, of Tibetan origin, however, the word „Tibetan‟ was

merely employed as reference to the Block/Area where Tibetans

reside in Gangtok. That, Notification bearing No.28/LR dated 21-

04-1969, relied on by the Respondents at clause (d) mentions that

Tibetans may not buy land from the Bhutia/Lepcha community,

however, the Notification is merely an Executive Order and lacks

the protection afforded by Article 371F(k) of the Constitution. It

(2001) 5 SCC 46

Tashi Dawa vs. Keshari Pradhan and Others

was urged that vide the adaptation of Sikkim Laws (No.1) Order,

1975, the Sikkim Subject Regulation, 1961 was repealed w.e.f. 26-

04-1975, and Sikkim Subjects became Indian citizens, in this

milieu the Plaintiff was gifted the suit property in the year 1999

within the Bazaar area of Gangtok, making the Notification of 1969

inapplicable to the Plaintiff, which in any event does not debar the

gift of immovable property. Relying on Kazi Lhendup Dorji

Khangsarpa and Another vs. State of Sikkim and Another , it was

emphasized that this High Court while considering a plea involving

"Revenue Order No.1 of 1917", observed that a number of

registrations had been allowed at Gangtok with sale, gift deeds

registered from Bhutia/Lepcha community to other communities.

It was further canvassed that the Respondents being a third party

have no locus standi in the first instance to challenge the Gift Deed

in favour of the Appellant. That, in Muddasani Venkata Narsaiah

(Dead) through Legal Representatives vs. Muddasani Sarojana , the

Supreme Court has held that passing of consideration under a sale

deed cannot be questioned by a third party. Similarly, the

Defendants herein have no say in the matter of Exhibit 4. That, as

per the requisites of the Registration Rules, 1930, the Gift Deed

was registered, by the Registrar, only after the Donor appeared

before him, hence, the Respondents have failed to establish their

case by sufficient evidence as contemplated under Section 103 of

the CPC and their claims fail.

8. Learned Senior Counsel for the Respondents opposed

the arguments advanced on grounds that, the TP Act has been

extended and enforced in its entirety in the State of Sikkim,

Writ Petition No.06 of 1988 of this High Court decided on 24-05-1989

(2016) 12 SCC 288

Tashi Dawa vs. Keshari Pradhan and Others

making Exhibit 4 invalid as it is not signed by two witnesses to its

execution, as required by Section 123 of the TP Act nor were the

attesting witnesses examined during trial. That apart, the

interlineations and alterations on Exhibit 4 were not attested by

affixing initials of the executing parties, in terms of Rule 10 of the

Registration Rules, 1930. This argument was buttressed by

reliance on K. B. Bhandari vs. Laxuman Limboo and Another6, wherein

this Court held that on account of non-compliance of Rule 10 of the

Registration Rules, 1930, a doubt arises about the corrections in

the document.

(i) It was next argued that Exhibit 4 referred only to a

portion of land bearing plot no.1227 under Gangtok Block, but

made no mention of a two storeyed wooden building thereon,

giving rise to a nebulous circumstance as to whether the house was

transferred along with the land. The attention of this Court was

invited to Devi Maya Chettri vs. Mahesh Chettri and Others7, wherein

this Court inter alia held that when Schedule „A‟ land was not

transferred to the Plaintiff‟s husband, he could not have in turn

transferred it to her, (Plaintiff), accordingly, Schedule „B‟ and

Schedule „C‟ buildings on Schedule „A‟ cannot be claimed by the

Plaintiff, as no law or custom provides that, whatever is affixed or

built on the soil becomes a part of it and is subjected to the same

right of property as the soil itself.

(ii) Garnering strength from Amit Kumar Shaw and Another

vs. Farida Khatoon and Another8, Learned Senior Counsel contended

that, during the pendency of an Eviction Suit between the Donor J.

SLR (2017) SIKKIM 41

SLR (2020) SIKKIM 951

AIR 2005 SC 2209

Tashi Dawa vs. Keshari Pradhan and Others

T. Namgyal and Shanti Pradhan and Others, which were on the

same grounds as the present suit, the Donor could not have

alienated the suit property, which is thus hit by the doctrine of lis

pendens under Section 52 of the TP Act. That apart, Exhibit 6

indicates that the Gift Deed was processed on 19-11-1999,

whereas the Surveyor signed the Spot Verification Report on 03-

01-1999, prior in time to the Gift Deed. The Surveyors report

reveals that "no objection" to the Gift Deed was given on 07-04-

1999, while the Donor gifted the property only on 19-11-1999,

rendering the transaction suspicious and in violation of the

prevalent law. The cross-examination of Nedup Pintso also clearly

reveals the short comings in the Gift Deed as he has stated that

Exhibit 3 was processed by Mohan Rai and not by him and he could

not say whether the correct procedure had been followed for

Exhibits 2, 3, 5 and 6. He also could not identify the signature of J.

T. Namgyal on Exhibit 4(a) as it was not affixed in his presence.

That, as the suit for Eviction (supra) filed by J. T. Namgyal was

dismissed, the Counter-Claim of the Defendants/Respondents

therein pertaining to adverse possession is thus deemed to have

been decreed.

(iii) In the next prong of his arguments, it was put forth

that the Suit of the Appellant is also hit by the doctrine of res

judicata as per Section 11 of the CPC as J. T. Namgyal had filed an

Eviction Suit against the same parties on the same pleas, for which

reliance was placed on Daryao and Others vs. State of U. P. and

Others . That, the Appellant being a Tibetan was debarred from

purchasing property in Sikkim in terms of the Notification bearing

AIR 1961 SC 1457

Tashi Dawa vs. Keshari Pradhan and Others

No.28/LR dated 21-04-1969. That, the nationality of the Appellant

is suspect as his father‟s name has been recorded in Exhibit 1 as

Gandup Bhutia (Tibetan) and block Gangtok (Tibetan). In light of

the arguments advanced, the Appeal deserves a dismissal with

costs.

9. Having heard Learned Counsel for the parties, I deem it

essential to firstly clear the air on the parameters the Court can

navigate in a Second Appeal. In Hero Vinoth (Minor) vs. Seshammal

[(2006) 5 SCC 545], the Hon‟ble Supreme Court held that inference or

appreciation of facts from recitals or contents of a document are

questions of fact. However, legal effects of the terms of a

document, or construction of a document involving application of

any principle of law are questions of law. In Sk. Bhikan s/o Sk. Noor

Mohd. vs. Mehamoodabee w/o Sk. Afzal and Others [AIR 2017 SC 1243],

the Supreme Court propounded that the issues regarding

ownership based on interpretation of documents constitute

substantial questions of law and a Second Appeal on such grounds

cannot be dismissed in limine. In Kulwant Kaur and Others vs. Gurdial

Singh Mann (Dead) by LRs. and Others [(2001) 4 SCC 262], the Supreme

Court while discussing the scope and ambit of Section 100 of the

CPC held that the Section had introduced a definite restriction on

the exercise of jurisdiction in a Second Appeal so far as the High

Court is concerned. That, needless to record that the object of the

Code of Civil Procedure (Amendment) Act, 1976 introduced such an

embargo for such definite objectives but the fact remains that,

while it is true that in a Second Appeal a finding of fact, even if

erroneous, will generally not be disturbed but where it is found that

the findings stand vitiated on wrong test and on the basis of

Tashi Dawa vs. Keshari Pradhan and Others

assumptions and conjectures and resultantly there is an element of

perversity involved therein, the High Court in our view will be

within its jurisdiction to deal with the issue. This is, however, only

in the event such a fact is brought to light by the High Court

explicitly and the Judgment should also be categorical as to the

issue of perversity vis-a-vis the concept of justice. That, however,

perversity itself is a substantial question worth adjudication─what

is required is a categorical finding on the part of the High Court as

to perversity.

(i) On the bed rock of the principles enunciated

hereinabove, and bearing in mind the limitations prescribed

therein, it is now apposite to discuss the substantial questions of

law.

10. The first question is accordingly taken up for

determination. Article 254 of the Constitution of India deals with

inconsistency between laws made by Parliament and laws made by

the Legislatures of the States and reads as follows;

"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of the States.--(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Tashi Dawa vs. Keshari Pradhan and Others

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

(i) „Repugnancy‟ as per Black's Law Dictionary, Tenth Edition

means "An inconsistency or contradiction between two or more

parts of a legal instrument (such as a Contract or Statute)". In

Rajiv Sarin and Another vs. State of Uttarakhand and Others [(2011) 8 SCC

708], the Supreme Court elucidated that for repugnancy under

Article 254 of the Constitution, there is a twin requirement, which

is to be fulfilled--firstly, there has to be a "repugnancy" between a

Central Act and a State Act; and secondly, the Presidential assent

has to be held as being non-existent. The appropriate test for

determining the same is indeed to find out the dominant intention

of both the legislations and whether in such intention both the

legislations are alike or different.

(ii) The State law may be "repugnant" in any of the

following ways--

(i) When there is a direct conflict between the two provisions.

This may happen--

(a) where one cannot be obeyed without disobeying the

other.

(b) Two enactments may also be inconsistent although

obedience to each of them may be possible without disobeying the

other. In other words, repugnancy is not confined only to the case

where there is a direct conflict between two legislations. It may

also arise where both laws operate in the same field and the two

cannot possibly stand together, e.g., where both prescribe

punishment for the same offence but the punishment differs in

Tashi Dawa vs. Keshari Pradhan and Others

degree or kind or in the procedure prescribed. Repugnancy will

also arise between two enactments even though obedience to each

of them is possible without disobeying the other, if a competent

legislature with a superior efficacy expressly or impliedly evinces by

its legislation an intention to cover the whole field. In all such

cases, the law made by Parliament shall prevail over a State law,

under Article 254(2).

applied to determine repugnancy for the purposes of Article 254(2)

but there can be no repeal by implication unless inconsistency

appears on the face of the two statutes.

(ii) Though there may not be any direct conflict between the

Union and the State Legislation, where it is evident that the Union

Parliament intended its legislation to be a complete and exhaustive

code relating to the subject, it shall be taken that the Union law

has replaced State legislation relating to the subject.

Where repugnancy arises between parliamentary legislation

and State legislation and where the legislations are with respect to

matters in the Concurrent List, parliamentary legislation will

predominate. When a State Act is repugnant to a Central law

within the meaning of this clause, what becomes void is not the

entire Act but only insofar as it is repugnant to the Central Act

(subject to the doctrine of „severability‟), (which is not required to

be discussed herein). [See Shorter Constitution of India, Durga Das

Basu, LexisNexis, 15th Edition, Volume 2].

(iii) That, having been said, it is imperative to notice that

Article 371F of the Constitution is a special Article for the State of

Sikkim and commences with a non-obstante clause. For the

Tashi Dawa vs. Keshari Pradhan and Others

purpose of clarity, it is essential to extract the provisions of clause

(k), clause (l) and clause (n) of Article 371F hereinbelow;

"371F. Special provisions with respect to the State of Sikkim.--Notwithstanding anything in this Constitution,--

...........................................................................

(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority;

(l) for the purpose of facilitating the application of any such law as is referred to in clause (k) in relation to the administration of the State of Sikkim and for the purpose of bringing the provisions of any such law into accord with the provisions of this Constitution, the President may, within two years from the appointed day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon, every such law shall have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law;

...............................................................

(n) the President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification;

........................................................................"

(iv) The word non-obstante inter alia as per the Black's Law

Dictionary, Tenth Edition is a phrase used in documents to preclude

any interpretation contrary to the stated object or purpose. Thus,

the word „notwithstanding‟ with which Article 371F commences,

means, notwithstanding any provision in the Constitution of India.

In the State of Sikkim vs. Surendra Prasad Sharma and Others10, the

Supreme Court observed that Article 371F is a special

constitutional provision with respect to the State of Sikkim. That,

(1994) 5 SCC 282

Tashi Dawa vs. Keshari Pradhan and Others

the reason why it begins with a non-obstante clause, is that the

matters referred to in the various clauses immediately following

required a protective cover so that such matters are not struck

down as unconstitutional because they do not satisfy the

constitutional requirement. While considering Article 371F(k), it

was further observed that unless such immunity was granted „the

law in force‟ would have had to meet the test of Article 13 of the

Constitution. This being the objective, existing laws or laws in

force came to be protected by clause (k) added to Article 371F.

The said laws in force in the State of Sikkim were, therefore,

protected, until amended or repealed, to ensure smooth transition

from the Chogyal‟s rule to the democratic rule under the

Constitution. Clause (l) of Article 371F in sum and substance

provides for bringing the provisions of any existing law of Sikkim

into accord with the provisions of the Constitution of India for

which the President may within two years of the appointed day

(i.e., 26th April, 1975) by order make such adaptation modification

of the law by way of repeal or amendments.

(v) In Raj Kumar Rai vs. State11, Bhattacharjee, J, while

considering whether the Arms Act, 1959 was validly extended to

Sikkim as the corresponding law being the Sikkim Arms Rules,

1962 had not been repealed at any time before such extension and

enforcement inter alia observed as follows;

"15......................... If the provisions of Cl. (k) of Art. 371-F, read with the non obstante clause as aforesaid, are compared and contrasted with the provisions of Art. 372 (1) of the Constitution, it will be clear that though both provide for continued operation of the earlier laws, yet under Art. 372 (1), pre-

Constitution laws have been allowed to operate only so far (as) they are consistent with the provisions of the Constitution and that so far as they are not so

1979 Cri. L. J. 310 (Sikkim High Court)

Tashi Dawa vs. Keshari Pradhan and Others

consistent, they have ceased to operate, while under Art. 371 (k) of the Constitution, the earlier Sikkim laws have been guaranteed continued operation even though they or some of them are violently inconsistent with or are shockingly violative of the provisions of the Constitution, until they are amended or repealed by a competent Legislature or other Competent authority." (emphasis supplied)

(vi) From the decisions cited hereinabove and the

discussions that have ensued therein, the question of applicability

of Article 254 of the Constitution of India and its applicability to

Article 371F(k) thus stand soundly quelled.

11. With regard to the second substantial question of law,

the nomenclature of the Registration Rules, 1930, reveals its

purpose, the introduction to the rules speaks of its intent and

provides inter alia as follows;

"REGISTRATION OF DOCUMENT IS PRIMARILY INTENDED TO GIVE SECURITY TO THE TITLES AND RIGHTS OF PERSONS PURCHASING PROPERTY OR RECEIVING SUCH PROPERTY IN GIFT OR ADVANCING MONEY ON THE MORTGAGE OF IT OR TAKING IT ON LEASE."

(i) It is thus necessary to comprehend that the scope and

ambit of the Registration Rules, 1930, is confined to the

registration of documents, while the TP Act deals with property of

any kind to be transferred as defined in Section 5 of the said Act

viz;

"5. "Transfer of property" defined.--In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."

Tashi Dawa vs. Keshari Pradhan and Others

(ii) Rule 7 of the Registration Rules, 1930 as already stated

prescribes the procedure to be observed in the Registry of Deeds,

which for convenience is extracted hereinbelow;

"PROCEDURE TO BE OBSERVED IN THE REGISTRY OF DEEDS

7. The person or persons executing the deed or his or their authorised representative with one or more witnesses to the execution of it, shall attend at the Registrar's office and prove by solemn affirmation before the Registrar the due execution of deeds upon which the Registrar shall cause an exact copy of the deed to be entered in the proper register and after having caused it to be carefully compared with the original shall attest the copy with his signature and shall also cause the parties or their authorised representative in attendance to subscribe their signatures to the copy and shall then return the original with a certificate under his signature endorsed thereon specifying the date on which such deed was so registered with REFERENCE to the book containing the registry thereof and the page and number under which the same shall have been entered therein."

(iii) Section 123 of the TP Act reads as follows;

"123. Transfer how effected.─ For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered."

(iv) Rule 7 of the Registration Rules, 1930 (supra)

indubitably does not deal with the method of execution of any Deed

but merely lays down that during registration the person or

persons executing the Deed, or his/their representative with one or

more witnesses to the execution shall attend the Registrar‟s office.

The provision makes no mention of the requirement of one witness

or more witnesses to the execution of any Deed, it merely

prescribes that during the registration proceeding, the executor

shall be present in the Registrar‟s office with a witness or

witnesses, who have witnessed the execution of the document.

Tashi Dawa vs. Keshari Pradhan and Others

(v) It is clear as day that any transfer of property under

Section 123 of the TP Act, mandatorily prescribes that two

witnesses should at least attest the registered instrument executed

for the purpose of making a Gift Deed of immovable property,

which has been signed by or on behalf of the Donor. It thus

concludes that the Registration Rules, 1930 functions

independently of the provisions of the TP Act in terms of the

explanation hereinabove. The question of the Registration Rules,

1930 being superseded by the provisions of TP Act does not arise.

(vi) Hence, the conclusion of the Learned Trial Court that

after the enforcement of the TP Act the Registration Rules, 1930

continue to be in existence having not been expressly repealed and

the conclusion of the Learned First Appellate Court that the

Registration Rules, 1930 ceased to operate after the enforcement

of the TP Act are both erroneous interpretations of the law as the

two laws operate in two separate arena.

(vii) On the extension and enforcement of the TP Act it

follows that the provisions thereof have to be complied with. The

Supreme Court in Gomtibai (Dead) through LRs. and Others vs.

Mattulal (Dead) through LRs.

inter alia held that gift of immovable

property should be made only by transferring the right, title and

interest by the Donor to the Donee by a registered instrument

signed by or on behalf of the Donor and must be attested by at

least two witnesses. That, in the absence of any registered

instrument of gift and acceptance thereof by the Donee, the said

property could not be said to have been legally transferred in

favour of the person as the gift is not complete in the eye of law.

AIR 1997 SC 127

Tashi Dawa vs. Keshari Pradhan and Others

(viii) In Daulat Singh (Dead) through Legal Representatives vs.

State of Rajasthan and Others

, the Supreme Court went on to hold

that Section 123 of the TP Act provides that for a gift of immovable

property to be valid, the transfer must be effectuated by means of

a registered instrument bearing the signature of the Donor and

attested by at least two witnesses.

(ix) Exhibit 4 indeed falls foul of the mandate of Rule 10 of

the Registration Rules, 1930 as the corrections made on the

document at "Father's Name" and at "Khatiyan Plot No./Nos.", are

not attested by the parties to the document with their signatures

on it. Rule 10 of the Registration Rules, 1930 reads as follows;

"PROCEDURE TO BE OBSERVED IN THE REGISTRY OF DEEDS ...........................................................................

10. All interlineations, erasures, or alterations appearing in the document must be attested by the parties to it with their signatures before such document could be accepted for registration."

(x) As held by this Court in K. B. Bhandari (supra), should

the Rule not be followed it lends suspicion to the circumstances of

correction. As far back as 1936 viz; in Nazir Ahmad vs. King

Emperor

it was held as follows;

"................................where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.........................."

(xi) In light of the settled position of law, Exhibit 4 is clearly

not in terms of the requirement of law and such being the position

it is not a valid document for the reasons discussed supra.

(xii) While addressing the argument of Learned Senior

Counsel for the Appellant that although the TP Act has been

extended and enforced in the State of Sikkim, the provisions of

(2021) 3 SCC 459

AIR 1936 Privy Council 253 (2) at Page 257

Tashi Dawa vs. Keshari Pradhan and Others

Section 123 of the TP Act were not applicable for the reason made

out in Section 1 of the TP Act, it is not disputed that the

Registration Act has neither been extended nor enforced in the

State of Sikkim, hence the non-obstante clause of Section 1 of the

TP Act requires no further consideration. Suffice it to note that the

TP Act has been extended in its entirety to the State of Sikkim on

22-07-1983, vide S.O.592(E) and enforced in the State of Sikkim

on 01-09-1984, vide S.O.643(E), dated 28-08-1984.

12. To answer the third substantial question of law, it is

clear that, the Respondents/Defendants being third party did not

have locus standi to challenge the Gift Deed. The Supreme Court

in Muddasani Venkata Narsaiah (supra) held that it is settled law that

passing of consideration under a sale deed cannot be questioned by

a third party. Exhibit 4 is alleged to be a Gift Deed executed

between the Donor and the Donee, its execution cannot be

questioned by the Respondents who are third parties to the

document.

13. A tangential argument pertaining to the nationality of

the Appellant raised before this Court was not an issue before the

Learned Trial Court or the Learned First Appellate Court

consequently no issue was framed on it for determination.

Nevertheless to give a quietus thereto, assuming that the

Appellant‟s father may have been of Tibetan origin, vide Exhibit 2

he has been recognized as a „Sikkimese‟, vesting on him all

consequential rights, regardless of his origins. Hence, in my

considered opinion, a prolix discussion of this facet is unwarranted.

14. Learned Senior Counsel for the Appellant had raised

doubts about the wooden structure on the plot of land mentioned

Tashi Dawa vs. Keshari Pradhan and Others

in Exhibit 4 ever having been transferred or gifted to the Appellant.

The Learned Trial Court and the Learned First Appellate Court had

different opinions on this facet as already discussed. In my

considered opinion, the interpretation of the Learned First Appellate

Court is incorrect as a bare perusal of Section 8 of the TP Act

indicates that interpretation as given by the Learned First Appellate

Court is not the import of the provision. It is clear that the decision

in Devi Maya Chettri (supra) relied on by Learned Counsel for the

Respondent is applicable to this matter. Answering the question

therein as to whether the husband of the Plaintiff could have

verbally transferred the land to the Plaintiff, a Single Bench of this

Court concluded, firstly, the identity of the land in dispute was not

ascertainable from the documentary evidence furnished and merely

because Defendant No.2 in his evidence had used the word

"relinquish", it could not have any legal effect, unless

relinquishment was done in accordance with law. Such expression

at best thus conveyed his wish and desire to vest the property on

his brother but a wish will not transfer land to his brother or vest

the same on his brother. That, Schedule „A‟ land was thus not

transferred to the husband of the Plaintiff and therefore the

husband of the Plaintiff who therefore could not have transferred it

to his wife the Plaintiff that too without a Deed of Conveyance. It

was concluded that the Plaintiff had no right, title or interest over

the Schedule „A‟ land. That, so far as Schedule „B‟ and Schedule „C‟

buildings which stand on Schedule „A‟ were concerned, as the

foundation of the claim in respect of Schedule „B‟ and Schedule „C‟

buildings were not established as a logical corollary the Plaintiff

could not claim right, title and interest over the buildings. In the

Tashi Dawa vs. Keshari Pradhan and Others

instant matter, similarly, not only does Exhibit 4 not meet the

parameters prescribed by law but the document also makes no

mention of the wooden structure. In the absence of proof of

execution of Exhibit 4, the Court cannot resort to conjectures

especially when the documentary evidence fails to substantiate the

claim of the Appellant.

15. While considering the findings of the Courts below that

the date of spot Verification preceded the registration lending

suspicion to its execution, to my mind are of no consequence while

dealing with Exhibit 4 as no specific law has been brought to the

notice of this Court that the spot Verification cannot precede the

Gift Deed, this would be missing the wood for the trees. The larger

question writ large here is the non-compliance of Section 123 of

the TP Act.

16. On the arguments of Learned Senior Counsel for the

Respondents pertaining to res judicata it needs no reiteration that

the plea of res judicata is a restraint on the right of a Plaintiff to

have adjudication on his claim. It means "a thing adjudicated, i.e.,

an issue that is finally settled by a judicial decision", and the plea

must be clearly established. In the instant case, no plea of res

judiciata or constructive res judicata was an issue before the

Courts below nor had the Appellant an opportunity to meet the

case of such plea [See Alka Gupta vs. Narender Kumar Gupta, (2010) 10

SCC 141]. The admitted case of the Respondents is that the previous

suit between the Donor and Shanti Pradhan was dismissed in

default and not decided on merits, thus the Counter-Claim being

deemed as decreed cannot be countenanced and is an erroneous

interpretation of law by the Respondents.

Tashi Dawa vs. Keshari Pradhan and Others

(i) Section 52 of the TP Act which deals with transfer of

property pending suit relating thereto, was agitated by Learned

Senior Counsel for the Respondents and reliance was place on Amit

Kumar Shaw (supra). Records reveal that Civil Suit No.11 of 1996

renumbered as Civil Suit No.28 of 1999 (J. T. Namgyal vs. Shanti

Pradhan) was pending on 19-11-1999, but dismissed in default on

07-01-2000.

(ii) Even if Exhibit 4 was executed during the pendency of

the Civil Suit between the Donor and Shanti Pradhan, the

observation of the Supreme Court in Madhukar Nivrutti Jagtap and

Others vs. Pramilabai Chandulal Parandekar (Dead) through Legal

Representatives and Others , on this aspect is extracted

hereinbelow for a correct understanding of the legal perspective;

"14...................................................................... 14.2. In Guruswamy Nadar [Guruswamy Nadar v. P. Lakshmi Ammal, (2008) 5 SCC 796], this Court has held as under: (SCC p. 800, para 13) "13. Normally, as a public policy once a suit has been filed pertaining to any subject- matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end."

14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh [Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539], as relied upon by the High Court, the subsequent purchasers sought to come on record as defendants and in that context, this Court referred to Section 52 of the TP Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens. The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or

(2020) 15 SCC 731

Tashi Dawa vs. Keshari Pradhan and Others

void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee i.e. the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit. In A. Nawab John [A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738:

(2012) 4 SCC (Civ) 324], this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the following: (SCC p. 746, para 18) "18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court."......................" (emphasis supplied)

(iii) The above ratio lucidly lays down the scope and object

of Section 52 of the TP Act.

(iv) Even though the arguments relating to adverse

possession is not a substantial question of law, however the matter

having been raised, it is imperative to reiterate that it is a settled

position of law that there cannot be a claim of independent title

and adverse possession at the same time which would amount to

contradictory pleas. In Government of Kerala and Another vs. Joseph

and Others ,

the Supreme Court referred to and relied on the

decision of Annasaheb Bapusaheb Patil and Others vs. Balwant alias

Balasaheb Babusaheb Patil (Dead) by LRS. and Heirs and Others

and

Mohan Lal (Deceased) through his LRS. Kachru and Others vs. Mirza

Abdul Gaffar and Another

while dealing with this aspect.

Relevantly, in Annasaheb (supra) it was held as follows;

2023 SCC OnLine SC 961

(1995) 2 SCC 543

(1996) 1 SCC 639

Tashi Dawa vs. Keshari Pradhan and Others

"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."

(v) In Mohan Lal (supra), it was observed as follows;

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

(vi) Thus, in light of the above position of law, the

Respondents cannot make a claim of adverse possession and in the

same breath claim possession on the basis of an oral gift which

vested title on them.