THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
Dated : 31st May, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.02 of 2021
Appellants : Purna Kumar Pradhan and Others
versus
Respondents : The Secretary, Land Revenue Department and Others
Appeal under Section 100 read with Section 151
of the Code of Civil Procedure, 1908
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Appearance
Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad, Advocate for
the Appellants.
Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma, Government
Advocates for Respondents No.1 and 2.
Mr. Jorgay Namka, Senior Advocate with Mr. Simeon Subba,
Advocate for Respondent No.3.
Mr. Vivek Chandra Rai, Advocate for Respondent No.4.
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JUDGMENT
Meenakshi Madan Rai, J.
1. This second appeal impugns the Judgment and Decree,
dated 29-07-2021, of the Learned District Judge, South Sikkim, at
Namchi, in Title Appeal No.05 of 2018, which upheld the Judgment
of the Learned Trial Court in Title Suit No.07 of 2017, dated 24-11-
2018, observing that there was no infirmity or illegality therein.
2. It is necessary to delve briefly, into the facts of the case
to comprehend the matter in its correct perspective. Before the
Trial Court, the case of the nine Plaintiffs, in Title Suit No.07 of 2017
(Appellants herein), was that they all are the surviving legal heirs
and successors, of one late Savitri Pradhan, who they claim was the
absolute owner of landed property, bearing plot no.177(P),
measuring about 0.3040 hectares, as per the records of 1950, vide
Parcha Khatiyan no.8, situated at Samardung, South Sikkim. It is RSA No.02 of 2021 2
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
their case that in the 1979-80 records, the plot number was
changed from '177' to '117', vide Parcha Khatiyan no.133.
Following the demise of Savitri Pradhan in the year 1968, they
decided to partition the landed property. During such process, they
came to learn that, as per the survey operations of 1981-82, plot
no.117(P), measuring 0.3040 hectares, was reduced by an area of
0.1640 hectares. Spot verification was conducted by the Revenue
Supervisor of the area, pursuant to an application filed by the
Plaintiffs, before the concerned SDM apprising him of the above
circumstance. Report of the Revenue Supervisor in this context was
submitted on 15-05-2015, with the observation that the 1951-52
records showed late Savitri Pradhan as the absolute owner of plot
no.177(P), measuring about 0.58 acres, but the records of 1979-80
showed the same plot number was changed to '117' and an area of
0.1640 hectares mistakenly recorded in the name of Defendant No.3
(Respondent No.3 herein) of Phongla Block. The same property was
then sold by Defendant No.3, to the Defendant No.4 (Respondent
No.4 herein). Consequent upon the verification, the Plaintiffs filed a
case against the Secretary, Land Revenue Department, the
Defendant No.1 (Respondent No.1 herein), before the SDM, Namchi,
South Sikkim. The SDM, vide Order dated 10-07-2015, ordered a
resurvey of the suit land, to be conducted on 25-07-2015. The
resurvey reiterated the facts as detailed in the report dated 15-05-
2015. The SDM concluded that the dispute pertained to ownership
of land and advised the parties to approach the appropriate forum
for settlement, hence, the suit. The Schedule of the property was
described in the plaint, as follows;
RSA No.02 of 2021 3
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
"SCHEDULE OF THE PROPERTY All that land standing in the name of Defendant No.4 situated at Samardung, Karek, South Sikkim bearing Khatiyan Plot No.117, having its total area measuring about .1640 Hectare which is bounded and butted as follows:
East :- LMB Private Ltd.
West :- Land of Ganesh Khati
North :- LANCO road
South :- Land of Ganesh Khati"
3. The Defendants No.1 and 2 (Respondents No.1 and 2
herein) in their written statement, averred that although the spot
verification revealed that the disputed property was recorded in the
name of Savitri Pradhan in 1950-52 records, but in the 1979-80
records, it was in the name of Kharka Bahadur Dahal, Defendant
No.3. That, when the sale transaction of the plot of land bearing
no.117 took place between the Respondent No.3 (Defendant No.3
before the Trial Court) and Respondent No.4 (Defendant No.4 before
the Trial Court), the Plaintiffs raised no objection. Accordingly, the
Plaintiffs were not entitled to the reliefs claimed.
4. The Defendant No.3 in his written statement while
denying that plot no.117 measuring 0.1640 hectares was mistakenly
recorded in his name, asserted that the said plot number measuring
0.2600 hectares, was purchased by his father from one Dhatri
Rajalakshmi on 03-03-1957, at a consideration value of ₹ 850/-
(Rupees eight hundred and fifty) only. The said plot of land fell in
his share, vide Banda Patra (Partition Deed), Exhibit D/3-6,
executed between him and his brothers and hence, the plot of land
was registered in his name. That, the suit of the Plaintiffs therefore
deserves a dismissal.
5. The Defendant No.4 contesting the claims of the
Plaintiffs averred that he had purchased the plot of land from the RSA No.02 of 2021 4
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
Defendant No.3 after verifying and being satisfied that the plot of
land belonged to the Defendant No.3. Thereafter, all legal
formalities pertaining to sale/purchase and transfer of the land took
place and Parcha Khatiyan no.134, for plot no.117, in his name was
issued by the Office of the Defendant No.1. That, the suit was filed
with the intention of causing wrongful loss to the Defendant No.4
and for wrongful gain to the Plaintiffs. That, despite allegation of
encroachment on the property of late Savitri Pradhan, the Plaintiffs
raised no objection at the time of registration of land and thereby
having waived their right cannot now raise a belated claim, hence
the suit be dismissed.
6. The Learned Trial Court settled four issues for
determination;
(i) Whether the suit land bearing the new plot no.117(P) measuring 0.1640 hectares is the ancestral property of the Plaintiffs?
(ii) Whether the suit land bearing the new plot no.117(P) measuring 0.1640 hectares was purchased by Shri Dhan Bahadur Dahal, father of Defendant No.3 from Dhatri Rajalakshmi, daughter of Late Bal Krishna Newar?
(iii) Whether the Plaintiffs raised any objection at the time of registration of the suit land in the name of the Defendant No.4?
(iv) Whether the Plaintiffs are entitled to the reliefs prayed for in the plaint?
7. In issue no.1, the Trial Court after examining the entire
documents relied on by the parties concluded that the Plaintiffs had
failed to prove that the suit land bearing the new plot no.117(P),
measuring 0.1640 hectares, was their ancestral property.
(i) In issue no.2, the Trial Court considering Exhibits D/3-2,
D/3-3, D/3-4 and D/3-6, observed that the documents do not reveal
that the suit land bearing plot no.117(P), measuring 0.1640 RSA No.02 of 2021 5
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
hectares, was purchased by the father of Defendant No.3 from
Dhatri Rajalakshmi. Hence, issue no.2 was decided against the
Defendant No.3.
(ii) In issue no.3, the Trial Court while discussing the
provisions of Section 114 and Section 58 of the Indian Evidence Act,
1872, and taking into consideration Exhibit 13 relied on by the
Plaintiffs, concluded that the Plaintiffs had failed to examine other
boundary holders as witnesses who could have deposed in their
favour. Hence, the issue was decided in favour of the Defendants.
(iii) In issue no.4, after weighing the evidence of the parties,
it was concluded that the Plaintiffs were not found entitled to any of
the reliefs prayed for by them and the suit was dismissed.
8. Dissatisfied with the findings of the Trial Court, the
Plaintiffs were in appeal before the Court of the Learned District
Judge in Title Appeal No.05 of 2018. The First Appellate Court after
examining the evidence and documents on record, upheld the
findings of the Trial Court and dismissed the Appeal.
9. Aggrieved thereof, the Appellants are before this Court
in second appeal, where one substantial question of law was
formulated for determination;
(i) Whether the Judgment of the Learned First Appellate Court is based on mis-conception and mis-interpretation of the documents exhibited?
10. The parties shall hereinafter be referred to in their order
of appearance before this Court.
11. Learned Senior Counsel for the Appellants canvassed the
contention that the property in the name of Savitri Pradhan was
0.58 acres under plot no.177, as per the old survey records of 1951-
52 which translated to plot no.117(P), measuring 0.3040 hectares, RSA No.02 of 2021 6
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
in the new survey operations. The facts of the case were reiterated
before this Court and it was contended that the First Appellate Court
disregarded Exhibit 14, the verification report which found that an
area of 0.1640 hectares of plot no.117(P), was wrongly surveyed
and recorded in the name of the father of Respondent No.3, on
grounds that the Revenue Supervisor P.W.2 stated that the
verification took place on 25-06-2018, when it had taken place on
16-06-2018. That, Exhibit 15 the Advocate Commissioner's report,
reveals that the verification took place on 16-06-2018, but the
report thereof was dated 25-06-2018. That, the minor discrepancy
in the evidence of P.W.2 Bishnu Prasad Chettri pertaining to the
dates, could well have been ignored by the Court, as it did not effect
the crux of the case. That, the parties were present when the spot
verification took place and Respondent No.4 had put forth an
objection, however it was not found tenable. On the query of the
Trial Court as to how plot no.'177' became '117', as Exhibit 14 was
devoid of such explanation, the Revenue Supervisor D.W.6, clarified
in his deposition that when the cadastral maps of the suit land of
1950-52 and 1979-80 were compared, the suit land was identified
as old '177' which became new '117'. That, the verification reports
being Exhibits 6, 7, 14 and 15 are corroborative of each other. On
this aspect, it was reiterated that P.W.2 and D.W.6 were
Government witnesses who had prepared Exhibits 6, 7 and 14, while
P.W.3 was the Advocate Commissioner appointed by the Court of
Civil Judge, South Sikkim, on 07-06-2018 to conduct spot
verification which took place on 16-06-2018. His report is Exhibit
15. That, in fact, Exhibit 14, dated 25-06-2018, was prepared by
P.W.2 in the presence of the Respondents No.3 and 4, one Kishore RSA No.02 of 2021 7
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
Diyali, Assistant Revenue Supervisor, Mohan Pradhan and Milan
Pradhan the nephew of Appellant No.1 and the Advocate
Commissioner. That, the Respondents did not raise any objection at
the time of the spot verification and preparation of the report or in
the Court of the SDM, where Respondents No.3 and 4 were present.
That, Exhibit 14 confirms that the Plaintiffs/Appellants are in
possession of the disputed property.
(i) To augment his submissions, he placed reliance on M/s. 1 Lightwalas vs. Bank of India and Another wherein it was observed
that the report of the surveyor has to be given due weightage and
on S. Rajendra Rao vs. G. Vanaja and Another2 where the High Court of
Madras held that the evidentiary value of the surveyor's report
cannot be brushed aside, in the absence of acceptable evidence on
the side of the Appellant/Claimants.
(ii) Learned Senior Counsel urged that the missing portion
from the total area of 0.3040 hectares comprising of 0.1640
hectares was allotted a new plot no.117, as it came under a new
owner. That, although Respondent No.3 claims that his father had
purchased plot no.117 from Dhatri Rajalakshmi, no document
buttresses such transfer as Exhibit D/3-2 relied on by the
Respondent No.3 is not a sale deed, but merely an unregistered
document indicating payment of earnest money, if at all, it was
paid. Moreover, the Learned Trial Court also observed that the land
was not purchased by Respondent No.3. That, Exhibit D/3-3 Parcha
Khatiyan in the name of the father of Respondent No.3, reveals that
the property came from Krishna Bahadur Chettri, but does not
reveal its transfer from Dhatri Rajalakshmi to the father of
1 2014 SCC OnLine NCDRC 956 2 2007 (1) TN MAC 106 RSA No.02 of 2021 8
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
Respondent No.3. Besides, plot numbers of the land recorded
therein are '180/321' and '122'. There is no mention whatsoever of
plot no.'117', which he claims to have sold to Respondent No.4.
That, Exhibit D3/6 which is the Banda Patra (Partition Deed) reveals
that it was executed on 12-05-2011, whereas Exhibit D/4(A) the
Sale Deed document between the Respondents No.3 and 4 was
executed on 16/11/2010, leading to an anomalous situation as
Respondent No.3 had apparently sold the property to the
Respondent No.4, before it was partitioned, allotted and received as
his share, rendering the evidence of Respondent No.3 unreliable.
(iii) It was further contended that, the Respondent No.3
claims that all documents pertaining to his property were destroyed
in a fire but neglected to explain why he did not obtain a second
copy of the documents, which are available in the Revenue Courts.
That, although the Appellate Court, in Paragraph 56 of its impugned
Judgment observed that the Appellants had failed to examine the
boundary holders as their witnesses, the Sikkim State Rules
Registration of Document 1930 nowhere requires that notice is to be
issued to boundary holders when the owner sells his land. Even if it
is a practice adopted by the Revenue Authorities, it must be proved
that the notice, if issued, had reached the person concerned as it is
not a Gazette Notification. The Appellants did not receive any notice
of sale of land by Respondent No.3 to Respondent No.4 to enable
them to raise any objection. In light of the submissions advanced
and evidence and documents on record, the Appellants be granted
the reliefs enumerated in the plaint.
12. Learned Government Advocate appearing for the
Respondents No.1 and 2 submitted that they were impleaded as RSA No.02 of 2021 9
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
parties being the authority in possession of land records and
responsible for necessary entries in the land records. No specific
submissions on the dispute were advanced by the Learned
Government Advocate.
13. Per contra, Learned Senior Advocate for the Respondent
No.3 submitted that, the Appellants relied on Exhibit 3 to establish
their case, which reflects three plots of land being plot no.169, 177
and 179. The total area covered by these plots of land are 1.90
acres, which when converted into hectares, amounts to 0.7689
hectares. There is no plot no.117 reflected in Exhibit 3, neither is
there any property, measuring 0.3040 hectares therein. That,
Exhibit 4 relied on by the Appellants in fact reveals that Savitri
Pradhan had property bearing plot no.109, measuring 0.0980
hectares and plot no.118 measuring, 0.3040 hectares. There is no
plot number '117', measuring 0.3040 hectares, even in Exhibit 4.
Besides, it is claimed that plot no.177 was later converted to '117',
but plot no.177 comprises of 0.58 acres, which converted into
hectares, would measure 0.2347 hectares and not 0.3040 hectares.
Hence, even the measurement of the properties put forth by the
Appellants are erroneous, as according to them, plot no.177
measuring 0.58 acres, would convert to 0.3040 hectares from which
an area of 0.1640 hectares is missing. That, the evidence of the
Revenue Supervisor P.W.2 and D.W.6 fails to explain as to how the
plot no.177 came to be altered to '117'. That, Exhibit 5 reveals that
the Plaintiff no.5 had filed an application before the SDM, Namchi,
complaining that his grandmother Savitri Pradhan was the owner of
plot no.177, measuring 0.58 acres, in 1951-52, but in 1981-82 the
area measured less by 0.1640 hectares and the SDM was requested RSA No.02 of 2021 10
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
to rectify the errors. However, as already pointed out, Exhibits 3
and 4 supra clearly reveals that neither the measurement of the
land nor the plot numbers as alleged by the Appellants correspond
to each other.
(i) Inviting the attention of this Court to the evidence-on-
affidavit of the Plaintiff No.7, it was contended that this witness has
given evidence without knowledge of the facts of this suit, for the
reason that Savitri Pradhan died in the year 1968, whereas he was
born in 1971 and hence he was not in a position to make the
statements pertaining to the suit land, as put forth in his evidence-
on-affidavit. That, P.W.4 Bir Bahadur Chettri, who was the
cultivator of the landed property of late Savitri Pradhan from 1960
to 1979 claims that the suit property measured 0.58 acres/0.3040
hectares. His cross-examination contrarily indicates his ignorance of
the measurement of the land nor was he aware of any land being
transferred to any other person. P.W.5 is Ram Kumar Kami,
cultivator residing in the property from 1980. He claimed that the
disputed property measures 0.58 acres/0.3040 hectares, but he did
not know the plot number of the suit land or of the landed
properties of late Savitri Pradhan, although he was aware that the
Respondent No.3 was one of the boundary holders.
(ii) While addressing the allegation made by Learned Senior
Counsel for the Appellants that an anomalous situation had arisen
with regard to the dates reflected on the Banda Patra and the Sale
Deed document, it was clarified that admittedly the Banda Patra
Exhibit D/3-6 was executed on 12-05-2011 and Exhibit D/4(A) the
Sale Deed document was executed between Respondent No.3 and
Respondent No.4, on 16-11-2010 but the reverse page of the RSA No.02 of 2021 11
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
document reveals that the document was presented for registration
only on 18-08-2011 and registered on 19-01-2012. Hence, no
discrepancy arises with regard to the dates on Exhibit D/4(A) and
Exhibit D/3-6. That, Exhibit D/3-3 reveals that the Respondent No.3
owned a total of 0.61 acres of land being plot no.180/321 which
when converted to hectares would be 0.2468. The entire land was
sold out to the Respondent No.4 and a new plot number being '117'
was allotted to the said land. That, when the transaction took place
between Respondent No.3 and Respondent No.4, no objection was
raised in the year 2011. That, in fact, Savitri Pradhan admittedly
died in the year 1968, but no documentary evidence supports the
averment and contention of the Appellants that, they decided to
partition the suit property only in the year 2015.
14. Learned Counsel for the Respondent No.4 endorsed the
submissions put forth by Learned Senior Counsel for the Respondent
No.3 and reiterated that when the property was purchased by
Respondent No.4 from Respondent No.3 no objection was raised.
Besides, no proof whatsoever has been furnished to establish that
the disputed property ever belonged to the Appellants, hence their
case deserves a dismissal.
15. The submissions advanced by Learned Counsel for the
parties were heard in extenso and duly considered. The pleadings,
all evidence, documents on record and the Judgments of the
Learned Courts below have been carefully perused.
16. In the first instance, we may briefly look at the
provisions of Section 100 of the Code of Civil Procedure, 1908 (for
short, "CPC") to understand its scope and ambit. The section is
extracted hereinbelow;
RSA No.02 of 2021 12
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
"100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
(i) In Hasmat Ali vs. Amina Bibi and Others3 the Supreme
Court observed inter alia that, an appeal is judicial examination by a
higher court of a decision of a subordinate court, to rectify any
possible error(s) in the order under appeal. The law provides the
remedy of an appeal because of the recognition that those manning
the judicial tiers too commit errors.
(ii) The legal limitations prescribed in determining a second
appeal under Section 100 of the CPC have been succinctly
illuminated in Narayan Sitaramji Badwaik (Dead) through Legal 4 Representatives vs. Bisaram and Others wherein the Supreme Court
held as follows;
10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179]]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or
3 2021 SCC OnLine SC 1142 4 (2021) 15 SCC 234 RSA No.02 of 2021 13
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
interfere with those arrived at by the courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows:
"103. Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
11. A bare perusal of Section 103 CPC clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower appellate court or by both the courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court in Municipal Committee, Hoshiarpur v. Punjab SEB [(2010) 13 SCC 216], held as follows: (SCC pp. 228-29, paras 26-28) "26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. ..................
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. ..........."
(emphasis supplied)"
RSA No.02 of 2021 14
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
(iii) Hence, the contours for determining a second appeal
have been clearly laid down in the above citations to which this
Court is to adhere.
17. Having perused and considered the entire documents on
record and the impugned Judgment, I am of the considered opinion
that nothing perverse arises in the Judgment of the First Appellate
Court or for that matter the Trial Court and the Judgments of both
Courts cannot be said to be based on mis-conception and mis-
interpretation of the documents exhibited, for the following reasons;
(i) The case of the Appellants is confined to plot no.177(P),
allegedly measuring 0.3040 hectares, as per the survey records of
1950, vide Parcha Khatiyan no.8. In 1979-80 records, according to
the Appellants, plot no.177 was renumbered as plot no.117,
measuring 0.3040 hectares. It is relevant to note that this averment
mentions only plot no.177 and has omitted the "(P)". In the survey
of 1981-82, plot no.117 was found to have reduced by 0.1640
hectares. It is not specified in the averments or evidence as to on
which date the Appellants discovered the reduction of the area
described supra. It is also essential to notice that they have
claimed that on 15-05-2015 the verification report Exhibit 6
prepared by the Revenue Supervisor reveals that, as per the records
of 1951-52, late Savitri Pradhan was the absolute owner of the
landed property, situated at Samardung, South Sikkim, bearing plot
no.177(P), measuring about 0.58 acres, but as per the records of
1979-80, the same plot number was altered to '117' and the same
portion of land, i.e., measuring 0.1640 hectares, was recorded in
the name of the Respondent No.3.
RSA No.02 of 2021 15
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
(ii) While examining these claims, a perusal of Exhibit 3,
which bears Parcha Khatiyan no.8, with no ambiguity reveals that in
the first instance, plot no.177 measuring 0.58 acres is recorded in
the name of Savitri Pradhan and not plot no.177(P) as averred and
claimed by the Appellants. An area of 0.58 acres in plot no.177,
would translate to 0.2347 hectares and not 0.3040 hectares, as
erroneously claimed by them. Exhibit 3 also reveals that the total
area under three plots of land owned by late Savitri Pradhan, viz.
plots no.169 (0.22 acres), 177 (0.58 acres), 179 (1.10 acres),
amounted to 1.90 acres, which when converted into hectares, would
amount to 0.7689 hectares. That having been said, Exhibit 4 is
Parcha Khatiyan bearing no.133. The Appellants claim that plot
no.177 was changed to '117' with land measuring 0.3040 hectares,
wherein Savitri Pradhan was shown as the absolute owner. Perusal
of Exhibit 4 reveals that, Savitri Pradhan was in possession of plot
no.109, measuring 0.0980 hectares and plot no.118, measuring
0.3040 hectares. The area in plot no.118 is shown as 0.3040 acres,
however, it is not the Appellants' case that there was a reduction in
the area from plot no.118, measuring 0.3040 hectares. This area
vide Exhibit 4 is intact and the Appellants have raised no grievance
on this count. Thus, neither Exhibit 3 nor Exhibit 4 correspond to
the claims of the Appellants as both documents do not show plot
no.117 by any stretch of the imagination. The evidence of P.W.7
reveals that after the passing away of Savitri Pradhan in the year
1968, her legal heirs and successors initiated the process of
mutation in their respective names, after two years of her death,
which revealed the reduction of the land. Surprisingly verification of
the property was sought only in the year 2015. Strong reliance was RSA No.02 of 2021 16
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
placed by the Appellants on Exhibit 14, said to have been prepared
by Revenue Supervisor, Bishnu Prasad Chettri, P.W.2, however this
witness admitted that there were no records to indicate that plot
no.177 was renumbered as plot no.117. That, plot no.117 was in
fact property measuring 0.2600 hectares in the name of Respondent
No.3. That, as per the survey records of 1979-80, the suit land was
recorded in the name of the father of Respondent No.3 and Exhibit
9, the map showing the land holdings of Respondent No.3, reveals
that it was sold to Respondent No.4.
(iii) The evidence of D.W.6 Karma Choden Bhutia, was with
regard to Exhibit 6, the spot enquiry report submitted by P.W.2
Bishnu Prasad Chettri, Exhibit 7 the verification report dated 25-07-
2015 and Exhibit 9 the map discussed supra. However, it was also
his admission under cross-examination that, there was no detailed
report or document to prove that plot no.177 was later re-numbered
as plot no.117. According to the witness, when the cadastral maps
to the suit land as per 1950-52 and 1979-80 were compared, the
suit land came to be identified. How this exercise was completed by
the concerned authorities and who undertook the responsibility went
unexplained. Learned Senior Counsel had urged that the old and
new maps were juxtaposed and the suit property was thus
identified, but the details were neither exhibited nor explained nor
the persons who completed the task ever examined as a witness.
The reasons put forth for changing of plot numbers thus bear no
weight, in consideration of the fact that no concrete/substantial
reasons have been afforded by the witnesses. The Court cannot
embark on a mission of divesting Respondent No.4 of his property,
sans identification of the disputed land.
RSA No.02 of 2021 17
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
18. Exhibit 7 is the verification report dated 25-07-2015
allegedly prepared by a Revenue Supervisor. P.W.2 has in his
exuberance to support the Appellants' case identified Exhibit 7(a) to
be his signature when it is apparently of one Thiru Psd. Sharma,
which is the name that appears below the signature and identified
by D.W.6 as such. In paragraphs 3 and 4 of Exhibit 7, it is
recorded that out of plot no.117(P) Respondent No.3 has sold an
area of 0.2600 hectares to Respondent No.4. That, out of the
0.2600 hectares area, 0.1640 hectares is still in the possession of
the successors of late Savitri Pradhan in whose name it was
recorded in 1950-52 survey. This report contradicts the case of the
Appellants who claim that their land measuring 0.3040 hectares was
reduced by 0.1640 hectares.
19. The Schedule to the plaint too does not identify the suit
land inasmuch as meticulous perusal of Exhibit 8, sketch map,
showing the property of late Savitri Pradhan, does not correlate with
the boundaries shown in the Schedule to the plaint. There is no
document which establishes that her property bore plot no.177 (P)
which was changed to plot no.117 and recorded in the name of
Respondent No.3 erroneously.
20. It is clear from the foregoing discussions that the
Appellants have not only failed to establish ownership of property
over plot no.117(P), measuring an alleged area of 0.3040 hectares,
but they have also failed to describe and identify the land correctly
in the Schedule to the plaint. The Learned Courts below have
correctly reached a finding that the Appellants do not deserve the
reliefs claimed. The entire suit appears to be based on a figment of
the imagination of the Appellants.
RSA No.02 of 2021 18
Purna Kumar Pradhan and Others vs. The Secretary, Land Revenue Department and Others
21. Hence, in consideration of all the documentary evidence
furnished before this Court, I am of the considered opinion that the
appeal lacks in merit and thereby deserves to be and is accordingly
dismissed.
22. In view of the circumstances of the suit, let the
Appellants pay costs of ₹ 7,000/- (Rupees seven thousand) only,
each, to the Respondents No.3 and 4, within one month from today.
23. Copy of this Judgment be forwarded to the Learned
Courts below for information, along with all records received.
( Meenakshi Madan Rai ) Judge 31-05-2023
Approved for reporting : Yes ds
