Sikkim High Court
Sarad Ghaley vs Chewang Lhamu Bhutia And Ors on 12 April, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
Dated : 12th April, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RSA No.02 of 2020
Appellant : Sarad Ghalay
versus
Respondents : Chewang Lhamu Bhutia and Others
Appeal under Section 100(1) of
the Code of Civil Procedure, 1908
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Appearance
Mr. Tej Bahadur Thapa, Senior Advocate with Mr. Dewen Sharma
Luitel, Mr. Ranjan Chettri and Mr. Khemraj Sapkota, Advocates for
the Appellant.
Mr. Sudesh Joshi, Mr. K. T. Tamang and Ms. Gazala Parvin,
Advocates for the Respondent No.1.
Mr. Rahul Rathi and Ms. Khusboo Rathi, Advocates for the
Respondent No.2.
Mr. Tashi Wongdi Bhutia, Advocate for the Respondent No.3.
Mr. Yadev Sharma, Government Advocate for the Respondents No.4
to 6.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant is aggrieved by the Order dated 31-10-
2019, of the Court of the Learned District Judge, Special Division -
I, East Sikkim, at Gangtok, in Title Appeal No.03 of 2019 (Sarad
Ghaley vs. Chewang Lhamu Bhutia and Others).
(i) Relevantly, it may be mentioned that the Learned First
Appellate Court considered an Appeal preferred before it, against
the Order dated 12-03-2019, of the Court of the Learned Civil
Judge, East Sikkim, at Gangtok, in Title Suit No.01 of 2018 ( Sarad
Ghaley vs. Chewang Lhamu Bhutia and Others), which had rejected the
Plaint of the Appellant herein, on an application filed by the
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
Respondent No.2, under Order VII Rule 11, read with Section 151
of the Code of Civil Procedure, 1908 (hereinafter, the "CPC"). The
Learned First Appellate Court upheld the Order of the Learned Trial
Court. Assailing the Order of the Learned First Appellate Court, the
Appellant is before this Court.
2. This Second Appeal was admitted on the following
substantial question of law;
"Whether the plaintiff has rightly been non suited by
the Courts below on the ground of limitation in the
facts of the present case, however (sic., or whether),
the judgment and decree passed by the Courts below
are in accordance with law?"
3. The facts as per the Appellant are summarized
hereunder;
(a) The great grandfather of the Appellant, late Dilu Singh
Ghaley, purchased landed property located at Kazi Road,
Gangtok, East Sikkim, on 01-02-1924 from one Gorey
Singh Subedar Lepcha, duly executing a "Rajinama" which
described the property and its boundaries.
(b) The boundaries inter alia were as follows;
One side of the boundary extended towards the house of
Dawa Sherpa Babu and Dhan Bir Babu, upwards to the
house of Dorjee Bhotey and to the bamboo groove of
Dakiya Muktiyar.
(c) The mother of the said Dawa Sherpa Babu, the boundary
holder (supra), sold the landed property of her son
bearing plot no.497 measuring 0.07 acres, to one Anand
Bahadur Pradhan on 02-04-1949.
(d) Anand Bahadur Pradhan transferred the same property,
i.e., plot no.497 measuring 0.07 acres on 10-12-1972, to
one Chimi Lhamu Bhutia.
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
(e) On 28-05-1973 Chimi Lhamu Bhutia sold a portion of plot
no.497, i.e., an area of 0.0337 acres, equivalent to
1470.46 sq. ft. to the Respondent No.3.
(f) The ancestral property registered on 07-03-1991 in the
name of Jit Bahadur Ghaley, son of late Dilu Singh Ghaley,
showed four plots of land bearing nos.496, 1229, 1237/
1442 and 1230, measuring a total area of 0.41 acres.
(g) The Respondent No.3 on 10-02-1997 sought mutation of
plot no.497 in his name, which was objected to by the
three legal heirs of Dilu Singh Ghaley, namely, Randhir
Singh Ghaley, Ranjan Ghaley and Uljhan Ghaley, vide
written objection, dated 31-03-1997.
(h) That consequent site inspection and spot verification of
the land holding of the Respondent No.3, as per notings in
the report dated 23-04-1997, showed his landed property
to be 6192 sq. ft., equivalent to 0.14 acres, instead of an
area of 0.0337 acres equivalent to 1470.46 sq. ft. as
purchased by him, from Chimi Lhamu Bhutia on 28-05-
1973.
(i) In the year 2001, a partition of the ancestral property of
the Appellant and his siblings was effected, where the
Appellant was given a share in plot no.1229. Some portion
of the ancestral property remained in the name of their
grandfather Jit Bahadur Ghaley and has not been
partitioned. Pursuant to the partition, plot no.2059/1229
was allotted to the Appellant's share of land, measuring an
area of 0.02 acres, duly mutated in his name on 31-08-
2001.
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
(j) The Revenue Authorities meanwhile registered the landed
property bearing plot no.497, in the name of the
Respondent No.3.
(k) On a spot verification on 22-04-2006, which arose on
account of a dispute between one Shanti Pradhan and the
Appellant's brother Nirmal Prasad Ghaley, it emerged that
plot no.497, with an area of 0.07 acres, stood recorded in
the name of Anand Bahadur Pradhan, son of Laxmi Prasad
Pradhan, in the Gangtok Municipal Corporation (GMC)
records, dated 15-05-1950.
(l) In the year 2009, the Respondent No.3 sold a portion of
land measuring 1040 sq. ft. i.e., 0.02 acres to the
Respondent No.2.
(m) On an application under the Right to Information Act,
2005 (RTI), being filed by the Appellant's relative, one
Bijoy Chandra Thapa, dated 09-10-2012, pertaining to
plot nos.1229, 496 and 497, it was found that plot no.497
recorded in the name of the Respondent No.3 had an area
of 0.17 acres, thereby exceeding the area of the land
purchased by him from Chimi Lhamu Bhutia.
(n) In 2016, the Respondent No.2 sold his landed property
i.e., 1040 sq. ft. to the Respondent No.1, who sought for
mutation of the property in her name, for which purpose,
a "No Objection Certificate" (NOC) was required from the
boundary holder. Nirmal Prasad Ghaley, the Appellant's
brother refused to issue the NOC, while his wife lodged a
Complaint objecting to the sale of 1040 sq. ft. to the
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
Respondent No.1 as there was a pending dispute with
regard to the ancestral property of her husband.
(o) Title Suit No.16 of 2016 was filed by the wife of Nirmal
Prasad Ghaley, titled Indra Kumari Pradhan vs. Suresh Kumar
Agarwal and Others, before the Court of the Learned Civil
Judge, East Sikkim, at Gangtok, who on 28-12-2016
appointed an Advocate Commissioner for measurement
and demarcation of the property in dispute in the title suit.
(p) On such demarcation the entire ancestral property of the
Appellant and his brothers was found to measure only
0.38 acres as against the 0.41 acres recorded in the
parcha of 1991, in the name of Jit Bahadur Ghaley.
(q) The Appellant lodged objections on 21-06-2017 and 15-
07-2017 against the creation of third party rights on plot
nos.497 and 497/2621 and sought for a hearing before
initiation of any steps by the concerned Sub-Divisional
Magistrate. On his incessant enquiries he was informed
by the authorities that no steps toward the said
registration had been initiated. However, on 12-08-2017
when the Appellant again visited the office of the
Respondent No.4, he was informed that the disputed
property was already registered in the name of the
Respondent No.1 on 03-08-2017 despite his two pending
objections. His application dated 12-08-2017 for
deregistration of the registration effected filed before the
Sub-Divisional Magistrate bore no fruit.
(r) The Appellant claims that, the excess area indicated in the
landed property of the Respondent No.3 as elucidated
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
(supra) is the illegally encroached area of land from his
ancestral property.
(s) Consequently, Title Suit bearing No.01 of 2018, Sarad
Ghaley vs. Chewang Lhamu Bhutia and Others was filed by
the Appellant in the Court of the Learned Civil Judge, East
Sikkim, at Gangtok, for declaration, recovery of
possession and other consequential reliefs.
(t) A petition under Order VII Rule 11 of the CPC came to be
filed by Respondent No.2 before the Learned Trial Court.
The Learned Court having considered the petition opined
inter alia that the suit of the Appellant is barred by
limitation as Section 58 (sic., Article) of the Limitation Act,
1963 (hereinafter, the "Limitation Act"), prescribes a
period of three years for any other declaration from the
time when the right to sue first accrues. That, it is also
barred by Section 65 (sic. Article) of the Limitation Act
which prescribes a period of twelve years for possession of
immovable property or any interest therein based on title,
from the time when the possession of the Defendant
becomes adverse to the Plaintiff. It was further observed
that the legal heirs of late Jit Bahadur Ghaley had
knowledge in the year 1997 itself that their ancestral land
had reduced in area. Hence, the limitation had long
expired.
(u) Against this Order the Appellant was before the Court of
the Learned District Judge, Special Division - I, East
Sikkim, at Gangtok, whose Order is assailed herein.
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
(v) The Learned First Appellate Court concluded inter alia that
"............from a meaningful reading of the plaint and the
documents filed by the plaintiff it is evidently clear that
the suit is barred by limitation. The facts of the case
clearly shows that the suit is barred and there is no
hesitation in saying that the suit is barred.............." and
that the Order of the Learned Trial Court required no
interference.
4. Learned Senior Counsel advancing his arguments for
the Appellant, submitted that the Appellant is the eldest son of Dil
Prasad Ghalay, who had three other sons namely, Nirmal Prasad
Ghaley, Ranjan Ghaley and Uljhan Ghaley, they are all the
grandsons of Jai Bahadur Ghaley and great grandsons of late Dilu
Singh Ghaley, whose ancestral lands have now been reduced by
encroachments made by Respondent No.3.
(i) Inviting the attention of this Court to the impugned
Order, it was urged that the Learned Courts below were of the
opinion that the Appellant had knowledge of the reduction of the
area of their ancestral land in 1997, based on Annexure - 8, the
objection, dated 31-03-1997. That, the objection was filed by
Randhir Singh Ghaley, Ranjan Ghaley and Uljhan Ghaley,
protesting against the application of the Respondent No.3, seeking
mutation of property bearing plot no.497. The Appellant is not one
of the signatories to the objection nor was he present before the
Revenue Authorities when the objection was taken up for
consideration. That, the Note Sheet dated 18-10-1997 fortifies this
circumstance, as it is evident from a perusal of the order therein
that the Respondent No.3 who was the Petitioner in the said
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
matter, was present with his Counsel, while Nirmal Prasad Ghaley,
the Respondent therein, entered appearance with his Counsel and
sought time. The order does not reveal the presence of the
Appellant whatsoever. Hence, the question of him having
knowledge of the reduction of his ancestral property in the year
1997 does not arise and the Learned Courts below erroneously
assumed knowledge of the Appellant, when no document
substantiates such an allegation. That, the Appellant and his
brothers were not in a joint family in the year 1997 as such the
Appellant was not privy to the filing of the objection, thus
knowledge of Annexure - 8 cannot be imputed on the Appellant.
That, the Appellant came to learn of the entire circumstances only
on 29-04-2017, which is evident from the objections lodged by him
before the Court of the Sub-divisional Magistrate, dated 21-06-
2017 and 15-07-2017 respectively. That, the correspondence/
objection, dated 21-06-2017 reveals that the Appellant had
knowledge of the land reduction only when he was informed of the
spot verification by the Advocate Commissioner on 29-04-2017.
That thereafter, on 15-07-2017 he filed the second objection,
objecting to the mortgage, sale or creation of third party rights
over plot no.497/2621. That, the Learned Trial Court despite the
pendency of the application of the Appellant before the Sub-
divisional Magistrate dated 21-06-2017, proceeded to pronounce
the Order dated 10-07-2017 rejecting the Plaint of the Appellant.
That, in view of the above arguments it is clear that, the cause of
action arose only in the year 2017 and the suit having been filed
well within the period of limitation the order of the Learned First
Appellate Court deserves to be set aside and the Suit disposed of
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
as per law. To fortify his submissions strength was garnered from
G. Nagaraj and Another vs. B. P. Mruthunjayanna and Others and
Sajjan Singh vs. Jasvir Kaur and Others .
5. Learned Counsel for the Respondent No.1 while
opposing the contention supra, navigated through Paragraph 3 of
the Plaint and canvassed that the averments reveal that the
partition of the ancestral property between the Appellant and his
brothers materialized only in the year 2001, this is indicative of the
fact that in 1997, when the objection dated 31-03-1997 was
submitted before the Respondent No.4, the Appellant was in a joint
family with his brothers and thereby well aware of the
circumstances, of which, he now feigns ignorance . That, apart the
contents of the letter dated 31-03-1997, in no certain terms
mentions that, Randhir Singh Ghaley, Ranjan Ghaley and Uljhan
Ghaley are "the legal heirs and successors of late Dilu Singh
Ghaley" along with "other members" of the their family which
thereby includes the Appellant, who admittedly is the legal heir of
Dilu Singh Ghaley and consequently his knowledge of the objection
dated 31-03-1997 cannot be denied. Drawing the attention of this
Court to Paragraphs 26 and 27 of the Plaint, it was contended that
in Paragraph 27 it is averred that the landed property bearing plot
no.497 was registered in the name of the Respondent No.3, in the
office of the Defendant/Respondent No.4 without proper
consideration of the grievances of the Appellant and his family.
That, the words "Appellant/Plaintiff and his family" in the Paragraph
are an unequivocal disclosure of the Appellant's awareness of the
fact of the land transaction in 1997. To fortify his submissions, the
2023 LiveLaw (SC) 311
2023 SCC OnLine SC 1282
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
attention of this Court was drawn to the Note Sheet dated 06-11-
1997 wherein the Revenue Authority had observed that "both the
sides have been heard" revealing the Appellant's presence. That,
Nirmal Prasad Ghaley, the Appellant's brother was a witness to the
execution of the Sale Deed document between the Respondent
No.3 and Respondent No.2, which would thereby obviously be in
the knowledge of the Appellant. As the Appellant in 1997 had
knowledge of the reduction of his ancestral property, the suit filed
by him is barred by limitation, as provided under Order VII Rule
11(d) of the CPC. To buttress his submissions reliance was placed
on Khatri Hotels Private Limited and Another vs. Union of India and
Another3, Ramisetty Venkatanna and Another vs. Nasyam Jamal Saheb
and Others and Raghwendra Sharan Singh vs. Ram Prasanna Singh
(Dead) by Legal Representatives . That, in the facts and
circumstances put forth, no error emanates in the impugned Order
which should therefore not be disturbed.
6. Learned Counsel for the Respondent No.2 also relied on
Paragraph 27 and the prayers in the Plaint and while endorsing the
submissions put forth by Learned Counsel for the Respondent No.1,
reiterated that the knowledge of the Appellant is evident from
Paragraph 27 of the Plaint. Besides, the prayers in the Plaint
reveal that the Appellant is assailing the mutation of plot no.497
which took place in 1997, augmented with an untenable claim that
his ancestral land has been reduced by such transactions. His
claim being time barred deserves no consideration and the
impugned Order warrants no interference.
(2011) 9 SCC 126
2023 SCC OnLine 521
(2020) 16 SCC 601
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
7. Learned Counsel for the Respondent No.3 submitted
that as the property to the Respondent No.2 already having been
sold, he had no arguments to advance.
8. Learned Government Advocate for the Respondents
No.4 to 6 submitted that as the said Respondents were proforma
Respondents, he had no submissions to put forth.
9. I have considered the rival contentions of Learned
Counsel for the parties and perused the Plaint, all documents
placed before me for consideration, including the impugned Order
as also the citations made at the Bar. The substantial question of
law framed by this Court is now to be determined.
10. It is now no more res integra that while dealing with an
application under Order VII Rule 11 of the CPC, only the averments
made in the Plaint and documents produced therewith are required
to be considered. The defence of the opposing parties or pleas
taken by the Defendants in their written statement cannot be
looked into. In Saleem Bhai and Others vs. State of Maharashtra and
Others , the Supreme Court while considering the provisions of
Order VII Rule 11 of the CPC propounded that;
"9. A perusal of Order 7 Rule 11 CPC makes it clear
that the relevant facts which need to be looked into for
deciding an application thereunder are the averments in the
plaint. The trial court can exercise the power under Order
7 Rule 11 CPC at any stage of the suit ─ before registering
the plaint after issuing summons to the defendant at any
time before conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d) of Rule 11
Order 7 CPC, the averments in the plaint are germane; the
pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage, ..........................."
(i) While considering whether the suit is barred by any law
in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal7, it was exposited
as follows;
(2003) 1 SCC 557
(2017) 13 SCC 174
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
"7. .................. If on an entire and meaningful
reading of the plaint, it is found that the suit is manifestly
vexatious and meritless in the sense of not disclosing any
right to sue, the court should exercise power under Order 7
Rule 11 CPC. Since the power conferred on the Court to
terminate civil action at the threshold is drastic, the
conditions enumerated under Order 7 Rule 11 CPC to the
exercise of power of rejection of plaint have to be strictly
adhered to. The averments of the plaint have to be read as
a whole to find out whether the averments disclose a cause
of action or whether the suit is barred by any law. It is
needless to observe that the question as to whether the
suit is barred by any law, would always depend upon the
facts and circumstances of each case. The averments in the
written statement as well as the contentions of the
defendant are wholly immaterial while considering the
prayer of the defendant for rejection of the plaint.
..............................."
(ii) On the aspect of the Appellant having knowledge of the
land transactions in 1997 itself, it is relevant to state that a word
or sentence cannot be read in isolation from the pleadings and
interpretations allowed to pivot around such isolated words or
sentences. The averments in the Plaint are to be considered in its
entirety. Pertinently, in Roop Lal Sathi vs. Nachhattar Singh Gill8, the
Supreme Court observed that not only a particular plea is to be
considered but the Plaint is to be read as a whole. This was
reiterated in Raptakos Brett and Co. Ltd. vs. Ganesh Property9.
(iii) In Sopan Sukhdeo Sable and Others vs. Assistant Charity
Commissioner and Others , the Supreme Court held as follows;
"15. There cannot be any compartmentalisation,
dissection, segregation and inversions of the language of
various paragraphs in the plaint. If such a course is
adopted it would run counter to the cardinal canon of
interpretation according to which a pleading has to be read
as a whole to ascertain its true import. It is not permissible
to cull out a sentence or a passage and to read it out of the
context in isolation. Although it is the substance and not
merely the form that has to be looked into, the pleading
has to be construed as it stands without addition or
subtraction or words or change of its apparent grammatical
sense. The intention of the party concerned is to be
gathered primarily from the tenor and terms of his
pleadings taken as a whole. At the same time it should be
borne in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities."
(1982) 3 SCC 487
(1998) 7 SCC 184
(2004) 3 SCC 137
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
(iv) Hence, a few words, as delineated above, by Learned
Counsel for the Respondents No. 1 and 2 cannot be picked out
from the objection dated 31-03-1997 or from Paragraph 27 to foist
the Appellant with knowledge of facts and circumstances which he
categorically denies, unless it is buttressed with positive and
adequate documentary evidence.
11. The Learned First Appellate Court as reflected in
Paragraph 18 of the impugned Order was of the view that the
documents such as mutation of plot no.497 in the name of the
Respondent No.3, the objection dated 31-03-1997 and the Note
Sheets relied on by the Appellant, make it amply clear that the
Appellant and his brothers were aware of the fact that certain
portion of their ancestral property had fallen into plot no.497.
That, despite their knowledge they did not file any suit for recovery
of possession of the allegedly encroached land. I cannot bring
myself to agree with this observation. I am of the considered view
that the present suit cannot be dismissed as barred by limitation
for the reason that although the Respondents No.2 and 3 have
contended that the Appellant was aware of the circumstances
pertaining to the recording of plot no.497 in the name of the
Respondent No.3, however, the documentary evidence dated 31-
03-1997 relied on by the Appellant indicates that the Appellant was
not a party to the proceedings as he was evidently not a signatory
to the correspondence. The Note Sheet before the Revenue
Authority, dated 18-10-1997 also does not reveal the presence of
the Appellant. The knowledge of the transaction and mutation of
the property in the name of the Respondent No.3 cannot be foisted
or imputed on the Appellant without the circumstances being
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
tested on the anvil of evidence. Merely reading one word from the
Plaint as projected in Paragraph 27 cannot impute knowledge on
the Appellant and the Court cannot assume facts on the basis of
the verbal submissions canvassed by Learned Counsel for the
Respondents. The contention that the Appellant and his brothers
were in a joint family which thereby is conclusive of the Appellant's
knowledge, as agitated by Learned Counsel for the Respondent
No.1, finds no substantiation at this stage.
12. Reliance on Ramisetty Venkatanna (supra) by Learned
Counsel for the Respondent No.1 is of no assistance to the case of
the Respondent No.1 as in Ramisetty Venkatanna (supra), the facts
and circumstances therein are completely distinguishable from the
facts and circumstances of the instant matter. A perusal of the
Judgment shows that the suit was essentially based upon the
premise that there was an error in the partition deed dated 11-03-
1953 and the partition deed survey number was wrongly
mentioned. That consequently, the descendants of the ancestors
had no right to effect transaction in respect of the land with the
wrong survey number. The Supreme Court found the suit
vexatious and barred by limitation, the cause of action having
arisen in 11-03-1953.
13. Learned Counsel for the Respondent No.1 also sought
to rely on Raghwendra Sharan Singh (supra). The facts and the
circumstances in the said matter are also distinguishable from the
matter at hand. The gift deed therein was registered 22 years
before the suit came to be filed. The Plaintiffs case was that the
gift deed was a sham document and not binding on him. The
Supreme Court noted that for approximately 22 years neither the
Sarad Ghaley vs. Chewang Lhamu Bhutia and Others
Plaintiff nor his brother claimed at any point of time that the gift
deed was a sham document. That, from the averments in the
Plaint and the bundle of facts therein, the Supreme Court was of
the opinion that by clever drafting the Plaintiff tried to bring the
suit within the period of limitation which is otherwise barred by
limitation. The Plaint was thus rejected under Order VII Rule 11 of
the CPC.
14. In my considered opinion, the question of limitation in
the matter at hand is undoubtedly a mixed question of law and
facts and the present suit cannot be dismissed as barred by
limitation without proper pleadings, framing of issues and recording
of evidence. The Learned Court while settling the issues can
undoubtedly take recourse to Sub-rule (2) of Rule 2, Order XIV of
the CPC. The application of the Respondent No.2 under Order VII
Rule 11 of the CPC does not fall within the purview of any of the
circumstances envisaged under the said provision.
15. The foregoing discussions determines the substantial
question of law formulated.
16. Appeal allowed.
17. Parties to bear their own costs.
18. Copy of this Judgment be transmitted to the Learned
Courts below forthwith along with all records.
( Meenakshi Madan Rai )
Judge
12-04-2024
Approved for reporting : Yes
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