Sikkim High Court
Mingyur Bhutia@Ingrik Dorjee vs The Chief Engineer, National Hydro ... on 25 April, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 04 of 2022
Shri Mingyur Bhutia @Ingrik Dorjee
Aged about 83 years,
Son of Late Chiten Lama Bhutia
Tashiding,
P/o Tashiding and P.S. Gyalshing
Sikkim-737111.
(Represented by the Constituted Attorney Shri Gyatso
Bhutia Son of Late Dorjee Tashi Bhutia, resident of
Tashiding. P.O. Seink and P.S. Gyalshing, Sikkim).
..... Appellant/Plaintiff
Versus
1. The Chief Engineer,
National Hydro Power Corporation Ltd.
Rangit Nagar-737111
South Sikkim.
2. The General Manager,
National Hydro Power Corporation Ltd.
Rangit Nagar - 737 111
South Sikkim.
3. Shri Karma Rinchen Bonpo (Bhutia),
S/o Late Sonam Dadul Bhutia,
Born Farm House,
P.O. Kewzing and P.S. Gyalshing,
Sikkim-737139.
4. Shri Sonam Rinchen Bonpo,
S/o Late Sonam Dadul Bhutia,
Born Farm House,
P.O. Kewzing and P.S. Gyalshing,
Sikkim-737139.
5. Shri Tashi Dorjee Bonpo (Bhutia)
S/o Late Sonam Dadul Bhutia,
Born Farm House,
P.O. Kewzing and P.S. Gyalshing,
Sikkim-737139.
2
R.F.A. No.04 of 2022
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
6. Shri Chewang Bonpo (Bhutia)
S/o Late Sonam Dadul Bhutia,
Born Farm House,
P.O. Kewzing and P.S. Gyalshing,
Sikkim-737139.
7. The District Collector,
District Administrative Centre,
Gyalshing, Sikkim-737111.
8. The Sub-Divisional Officer,
Yuksom Sub-Division
Yuksom, Gyalshing District
Sikkim-737113.
..... Respondents/Defendants
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Appeal under Order XLI, Rules 1 and 2 of the Code of
Civil Procedure, 1908.
(Impugned Judgment and Decree dated 21.05.2022 passed by the
Court of the learned District Judge at Gyalshing, Sikkim in Title Suit
No. 01 of 2018 titled Shri Mingyur Bhutia @Ingrik Dorjee versus The
Chief Engineer, National Hydro Power Corporation Ltd. Rangit Nagar
and Others).
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Appearance:
Mr. N. Rai, Senior Advocate (Legal Aid Counsel) with
Mr. Yozan Rai, Legal Aid Counsel, Mr. Pradeep
Tamang and Ms. Priscila Rai, Advocates for the
Appellant/Plaintiff.
Ms. Sangita Pradhan, Deputy Solicitor General of
India (through V.C.) assisted by Ms.Natasha Pradhan,
Advocates for the Respondent Nos. 1 and 2/Defendant
Nos. 1 and 2.
Mr. T. R. Barfungpa, Mr. Hem Lall Manger, Ms.
Lahamu Bhutia and Ms. Parvin Manger, Advocates for
the Respondent Nos. 3 to 6/Defendant Nos. 3 to 6.
Mr. Sujan Sunwar, Assistant Government Advocate
for the Respondent Nos. 7 & 8/Defendant Nos. 7 and
8.
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Date of Hearing : 19.03.2024
Date of Judgment : 25.04.2024
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R.F.A. No.04 of 2022
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This regular first appeal is liable to be rejected on
the ground that the appellant (the plaintiff) failed to
establish his case as he did not examine himself and
Gyatso Bhutia the plaintiff's power of attorney holder
admitted that he had no personal knowledge about the
present matter. It is settled law that a "power of attorney
holder can only depose about the facts within his personal
knowledge and not about those facts which are not within
his personal knowledge who he represents or about the facts
that may have transpired much before he entered the
scene." This has been held by the Supreme Court time and
again and now reiterated once again in Manisha Mahendra
Gala vs. Shalini Bhagwan Avatramani1. However, as this is a
regular first appeal this Court shall consider all the issues
examined by the learned District Judge, Gyalshing (the
learned Trial Court).
2. This is a regular first appeal filed by the plaintiff
whose suit for declaration of title and recovery of
possession was dismissed by the learned Trial Court.
1 2024 SCC OnLine SC 530
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
3. The respondent nos. 1 and 2 (the defendant nos. 1
and 2) are the Officers of the National Hydro Power
Corporation Limited (NHPC) who has admittedly acquired
plot no. 814/933 at Tashiding Block which is subject
matter of dispute in the suit filed by the plaintiff.
4. The suit was filed by the plaintiff in the year 2018.
The process of acquisition of the disputed plot started in
the year 1996 and ended in 1998 when the award was
made in favour of the grandfather of the respondent nos. 3
to 6 (defendant nos. 3 to 6) for grant of compensation.
5. Although the plaintiff claims that he is the
absolute owner of the landed properties covered by plot no.
814 measuring about 1.1480 hectares he does not claim
possession of the said property anywhere in the plaint.
6. It is the plaintiff's case that in the year 2015 the
plaintiff received a notice from the respondent no.7
(defendant no.7) for demarcation of land acquired by
defendant nos. 1 and 2.
7. In the pleadings in the plaint the plaintiff claims
that it is only in the year 2015, after having received the
notice for demarcation, that he made enquiries and realized
that an area measuring 1.1480 hectares was found
recorded in the name of late father of defendant nos. 3 to 6
from his total land holding which has been transferred to
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
defendant nos. 1 and 2 and the remaining portion 0.6020
hectares continued to be in the possession of late father of
defendant nos. 3 to 6. With such pleadings the plaintiff
approached the learned Trial Court for the following
prayers:
a. Declaring that the Legal heirs of Lt. Sonam Dadul
Bhutia (Defendant nos. 3-6) and the National
Hydro Power Corporation are in illegal occupation
of the portion of plot No. 814.
b. Declaring the recording of the names of Lt. Sonam
Dadul Bhutia and The National Hydro Power
Corporation in the record of rights to be illegal and
void.
c. Relief for correction of records of rights in favour of
the plaintiff by duly deleting i.e. the names of Lt.
Sonam Dadul Bhutia and The National Hydro
Power Corporation.
d. Order for recovery of Khas possession from Lt.
Sonam Dadul Bhutia and The National Hydro
Power Corporation and delivery of same to the
plaintiff.
e. An order for compensation by way of mense profit
against the Legal heirs of Lt. Sonam Dadul Bhutia
(Defendant nos. 3-6) and The National Hydro
Power Corporation and in favour of the plaintiff as
the Hon'ble Court may deem fit and proper.
f. Any other relief or reliefs for which he plaintiff is
entitled to.
8. The defendant nos. 1 and 2 has filed written
statement taking various grounds both on facts and in law
denying that the plaintiff was the absolute owner of the
landed property. It is stated that the Government of Sikkim
vide Notification No.42/902/11 /L.R. (S) dated 27.11.1996
published a Notice under section 4(1) of Land Acquisition
Act, 1894 (L.A. Act, 1894) seeking to acquired various plots
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
including 814/933 for public purpose i.e. construction of
Rangit Project concrete dam in Tashiding, West Sikkim. It
was also stated that a declaration under section 6 of the
L.A. Act, 1894 was also issued on 27.03.1997 which once
again specified plot no. 814/933. According to defendant
nos. 1 and 2 the defendant no.7 made an award under
section 11 of the L.A. Act, 1894 and compensation was
duly paid to the respective land owners.
9. Defendant nos. 3 to 6 in their written statement
also denied the assertion made by the plaintiff in their
plaint that they were the absolute owner of the property in
dispute. According to the defendant nos. 3 to 6 late
Yongden Bhutia the grandfather of defendant nos. 3 to 6
had several plots of land under Tashiding Block. As per
land survey operation of 1950-52 late grandfather of
defendant nos.3 to 6 had five plots of land bearing nos.
756, 759, 760, 761 and 762 measuring a total area of
13.32 acres. They further claimed that the entire property
was being looked after by one Late Kaluman Mangar, a
caretaker of defendant nos. 3 to 6. Late Yongden Bhutia
used to reside in Kewzing and although he was in physical
possession of his landed properties, inadvertently a portion
of his land was wrongly recorded in the name of the
plaintiff during the survey operations of 1979-80 as part of
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
the plot no. 814 measuring a total area of 4.8500 hectares.
According to defendant nos. 3 to 6 it was noticed in the
year 1992 when defendant nos. 1 and 2 started survey of
the area for construction of power project. It was
accordingly corrected in the year 1992 vide Office Order No.
289/DCW (R) dated 09.01.1992 by the office of the
defendant no.7, following the procedure for correction of
land records with the consent and approval of the plaintiff.
After the correction of the land records, the portion of the
land measuring 1.1480 hectares which had wrongly been
recorded in the name of the plaintiff during the survey
operations of 1979-80 was accordingly renumbered as plot
no.814/933, transferred and mutated in the name of late
Yongden Bhutia. Late Yongden Bhutia had two sons Shri
Lobzang Bhutia and Late Sonam Dadul Bhutia-father of
defendant nos. 3 to 6. After the death of Yongden Bhutia
the unacquired portion of plot no.814/933, after the land
acquisition by defendant nos. 1 and 2, was inherited by the
father of defendant nos. 3 to 6 as his share of ancestral
property and was subsequently mutated in his name vide
Office Order No. 224 DCW in the year 2000.
10. The defendant nos. 7 and 8 in their written
statement stated that as per 1979-80 survey operations
plot no. 814 measuring area of 4.85 hectares was recorded
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
in the name of the plaintiff. It is also stated that the same
was corrected vide Office Order No.289/DCW (R) dated
09.01.1992 and new plot no. 814/933 measuring 1.1480
hectares has been recorded in the name of late Yongden
Bhutia and a khatiyan was prepared with the said entries.
The defendant nos. 7 and 8 also stated about the issuance
of notifications under section 4 section 6 and the award
under section 11 of the L.A. Act, 1894 by which
compensation was paid to Late Yongden Bhutia for plot no.
814/933. It also pleaded that the entire land acquisition
process was done after duly following the process of law
and that no claim or objection was received under section 9
of the L.A. Act, 1894.
11. Based on the pleadings of the parties, the learned
Trial Court framed the following issues:
"(i) Whether the plaintiff is the actual owner of the
suit property bearing plot no.814/933 measuring
1.1480 hectares after the survey operation of 1979-
80 or whether plot no. 814/933 measuring an area
of 1.1480 hectares belonged to and was in the
possession of Late Yongden Bhutia, grandfather of
defendants 3-6 as per the 1950-52 survey
operation and was wrongly recorded in the name of
the plaintiff after the survey operation of 1979-80?
(Onus for first half of the issue on plaintiff and
second half of the issue on defendants 3-6).
(ii) Whether plot no. 814/933 was rectified as per
proper procedure in the revenue records in the
year 1992 and retransferred in the name of Late
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
Yongden Bhutia, grandfather of defendants 3-6?
(Onus on defendants 3-8).
(iii) Whether Late Yongden Bhutia, grandfather of
defendants 3-6 was entitled to the compensation
for the suit land measuring 0.5460 hectares being
the portion acquired by defendants 7 & 8 for
defendants 1 & 2? (Onus on all the defendants).
(iv) Whether the acquisition of the suit property
bearing plot no. 814/933 (renumbered as 814/983
after acquisition) measuring 0.5460 hectares was
valid and as per legal procedure? (Onus on
defendants 1-2, 7 and 8).
(v) Whether the defendants 3-6 being the legal heirs of
Late Yongden Bhutia are the rightful owners of plot
no.814/933 or whether they are in illegal
possession of the same? (Onus on defendants 3-6).
(vi) Whether the suit of the plaintiff is barred by law of
limitation? (Onus on defendant 1, 2, 3-6).
(vii) Whether the plaintiffs entitled to reliefs claimed?
(Onus on plaintiff).
12. The matter then proceeded for trial. The plaintiff
examined one Gyatso Bhutia-the power of attorney holder
of the plaintiff, Megh Bahadur Kapil (Chettri) as P.W.1 and
Thutop Bhutia as P.W.2. The plaintiff did not examine
himself.
13. On behalf of the defendant nos. 1 and 2 one Mr.
K. Jeyaram-the Senior Manager of defendant nos. 1 and 2
was examined. Sonam Rinchen Bonpo (defendant no.4)
examined himself on behalf of defendant nos. 3 to 6.
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
Defendant nos. 3 to 6 also examined Tirtha Ram Rai
(D.W.1), Dhan Bahadur Tamang (D.W.2), Dal Bahadur
Manger (D.W.3) and Amrit Raj Rai (D.W.4). Defendant no.
8-Tshering T. Bhutia-the Sub Divisional Magistrate,
Yuksom deposed on behalf of himself and defendant no.7.
14. 19 documents were exhibited by the plaintiff.
The defendant nos. 1 and 2 exhibited 6 documents.
Defendant nos. 3 to 6 exhibited 15 documents and
defendant nos.7 and 8 exhibited 7 documents. The
witnesses' evidence on affidavit were filed and they were
duly cross examined by the opposite parties.
15. The learned Trial Court rendered its Judgment
on 21.05.2022 whereby all the issues were held against the
plaintiff. Accordingly the learned Trial Court came to the
conclusion that the plaintiff had failed to prove his case
and are not entitled to the relief claims. The plaintiff thus
assails the impugned judgment of the learned Trial Court.
16. Heard Mr. N. Rai, learned Senior Counsel for
the plaintiff who is the appellant in the present appeal. He
reiterated that the learned Trial Court ought to have
considered that the plaintiff's knowledge about the facts
pleaded in the plaint was only in the year 2015 and
therefore, the learned Trial Court ought not to have held
that the suit was barred by limitation. It is also argued that
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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the records filed by the plaintiff did reflect that he was the
owner of the disputed plot and authorities could not have
corrected it in the year 1992 without informing him about
the same.
17. Mr. Tashi Rapten Barfungpa, learned counsel for
the defendant nos. 3 to 6 submits that the documents
reflects that the plaintiff had clear knowledge that in the
year 1992 the records had been rectified by the defendant
no.7 and it was mentioned in the parcha which was issued
to the plaintiff. It is also submitted that the plaintiff was
unable to produce any evidence to back his claim that he
was the absolute owner of plot no. 814 including 814/933
which was subsequently acquired by defendant nos. 1 and
2 and the remaining portion which continues to be in the
name of father of defendant nos. 3 to 6. It is also submitted
that the plaintiff having failed to produce any evidence to
support his claim of ownership and suit was correctly
dismissed by the learned Trial Court and therefore, the
judgment may not be interfered with. On the question of
limitation it is submitted that the suit was barred by
limitation and therefore, that issue was also correctly held
in favour of the defendants and against the plaintiff.
18. The learned Deputy Solicitor General of India
appearing for defendant nos.1 and 2 submit that the
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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process of acquisition duly following the L.A. Act, 1894 got
over way back in the year 1998 and both the notices under
section 4 and 6 specifically provided that plot no.814/933
was to be acquired. This was enough notice to all interested
parties to have raised their objection if they so desired to
have it properly adjudicated before the concerned
authorities. However, the plaintiff failed to do so and thus
the suit was hopelessly barred by limitation.
19. The dispute is with regard to a plot of land i.e.
plot no.814/983 measuring a total area of 0.5460 hectares.
The plaintiff claims to be the absolute owner of landed
property i.e. plot no.814 measuring about 4.8500 hectares
situated in Tashiding Block, Tashiding Circle, West Sikkim
in the plaint. The plaintiff however, does not claim that he
has possession over the said property. The plaintiff did not
give evidence. The plaint has been filed through Gyatso
Bhutia, as the power of attorney holder of the plaintiff.
20. Gyatso Bhutia in his evidence on affidavit stated
that the father of the plaintiff late Angdak Bhutia had vast
landed properties recorded in his name under Tashiding
Block in the first cadestal survey operation of 1950-52
which fact was not mentioned in the plaint since he
recently got hold of the documents after filing application
under the Right to Information Act i.e. the parcha (exhibit-
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
3) and the sketch map (exhibit-4). He further stated that
during the cadestal survey operation of 1979-80 those
properties were transferred in the plaintiff's name and he
was the absolute owner of plot no.814 measuring 4.5800
hectares as per 1979-80 survey operations.
21. However, Gyatso Bhutia in his cross examination
admitted that he had no personal knowledge about the
present matter till 2015. He also admitted that the suit had
been filed 25 years after acquisition of the suit property
and after construction of the project. He admitted that the
landed properties of late Cheten Lama as per the survey
operation of 1950-52 were distributed equally amongst his
four sons and two daughters. He admitted that late Sonam
Kinga was the second son of late Cheten Lama. He
admitted that the original of exhibit-P6 (computerized
record of rights/parcha) in two pages has been deposited
to the SISCO Bank by the plaintiff sometime in the year
2015 and that it was issued by the concerned authority on
09.05.2011 after depositing the previous parcha which was
hand written to the authorities for the issuance of exhibit-
P6. He further admitted that he was born in 1973 and
therefore, he did not have personal knowledge of the status
of landed properties of his ancestors during the survey
operation of 1950-52 or survey operation of 1979-80. He
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
stated that he did not know how the disputed plot no.814
came to be recorded in the name of the plaintiff in 1979-80.
He admitted that plaintiff had never been in possession of
plot no.814/933.
22. To substantiate the claim of the plaintiff to be
the absolute owner of plot no.814 Gyatso Bhutia produced:
(i) Khatiyan Parcha (exhibit-P3) in the name of late
Cheten Lama showing the landed properties in his
name.
(ii) Sketch map (exhibit-P4) in the name of late Cheten
Lama showing landed properties recorded in his
name during 1950-52 survey operation.
(iii) Parcha Khatiyan (exhibit-P6) in the name of the
plaintiff showing landed properties recorded in his
name during 1977-82 survey operations.
23. Megh Bahadur Kapil Chettri (P.W.1) deposed in
favour of the plaintiff. He claimed that late Cheten Lama
had vast landed properties in and around Tashiding. He
stated that in the year 2016 he was summoned by the SDM
Yuksom to attend a joint inspection at Tashiding where the
family of the plaintiff claimed that they had never sold
property to anybody including late Sonam Dadul Bhutia.
He further stated that late Sonam Dadul Bhutia claimed
that he had purchased certain landed properties from the
plaintiff.
24. Thutop Bhutia (P.W.2) in his evidence on
affidavit stated that when he was the „mondal‟ of Tashiding
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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the family of the plaintiff used to deposit revenue rent to
him as they had vast landed properties at Tashiding.
25. Sonam Rinchen Bonpo (defendant no.4) stated
that he was the grandson of late Yongden Bhutia and the
second son of late Sonam Dadul Bhutia. According to him
his grandfather had several plots of land under Tashiding
Block. As per land survey operations of 1950-52 his
grandfather had five plots of land bearing nos. 756, 759,
760, 761 and 762 measuring a total area of 13.32 acres
under Tashiding Block. These properties were being looked
after by one late Kaluman Manger and his family from 1984
till 2014 as caretaker. Dhan Bahadur Tamang (D.W.2) and
his family lives on a plot of land adjacent to plot
no.814/933 as current caretaker and he has been looking
after the properties for the last 21 years. His grandfather
used to reside in Kewzing and therefore, he was not aware
of the survey operations of 1979-80. Although his
grandfather was in physical possession of all his landed
properties under Tashiding Block inadvertently a portion of
his land was wrongly recorded in the name of the plaintiff
during 1979-80. This was noticed in the year 1992 when
defendant nos. 1 and 2 started surveying the area for
construction of a power project and accordingly corrected
vide Office Order No.289/DCW (R) dated 09.01.1992 by the
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
office of the District Collector. After the correction the plot
was renumbered as plot no.814/933, transferred and
mutated in the name of the actual owner i.e. his
grandfather. It was further stated that after the demise of
his grandfather the unacquired portion of plot no.814/933
measuring about 0.6020 hectares, after the land was
acquisition by defendant nos. 1 and 2, was inherited by his
grandfather as his share of the ancestor property and
subsequently mutated in the name of his father vide Office
Order No.224/DCW in the year 2000. He stated that the
plaintiff was never in possession of the suit property. He
asserted that from exhibit-6 (the computerized record of
rights/parcha) exhibited by the plaintiff itself makes it
evident that he was aware about the mutation in favour of
Yongden Bhutia in the year 1992 since the remarks column
clearly reflects that correction had been made vide Order
No.289/DCW (R) dated 09.01.1992. He further asserted
that defendant nos. 1 and 2 had acquired the suit property
26 years ago and the entire acquisition process was long
over. He exhibited certified copy of khatiyan parcha for plot
no.814 and 814/933 (exhibit-D2); certified copy of survey
map as per survey operation of 1950-52 showing the land
holdings of late Yongden Bhutia (exhibit-D3); details of land
acquisition proceedings for plot no.814/933 by defendant
nos. 1 and 2 for Rangit Power Project (exhibit-D4).
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
26. Tirtha Ram Rai (D.W.1) deposed on behalf of
defendant nos. 3 to 6. According to him he was a tenant of
late Yongden Bhutia and had cultivated the land in dispute
in the year 1962 and 63 for two years during which time
the principal tenant was one Kalungay Babu to whom he
would give his "kuth" to give it to late Yongden Bhutia. He
also described the boundaries of the suit property and
asserted that it belonged to late Yongden Bhutia and that
he was in possession of the same when he was cultivating
it.
27. Dhan Bahadur Tamang (D.W.2) also deposed for
defendant nos. 3 to 6. According to him he was a tenant of
late Sonam Dadul Bhutia and currently residing in a
wooden house in the land belonging to him near Rangit
River at Tashiding. He stated that he earlier worked as
helper for late Kaluman Manger who had taken the lands of
late Yongden Bhutia for cultivation. He also knew the
boundaries of the suit property and named the boundary
holders. He stated that he had cultivated the land in
dispute on "kuth". He asserted that the disputed land
belonged to late Yongden Bhutia. According to him the
plaintiff was the youngest brother of the boundary holder
i.e. Acchu Maila alias Sonam Kinga Bhutia. According to
him the plaintiff had land above the road at Tashiding but
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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did not have any land near the river belt. The plaintiff's
land was cultivated by Daniel Biswakarma, Suren
Biswakarma and Harkey Biswakarma.
28. Dal Bahadur Manger (D.W.3) was the Revenue Officer-
cum-Assistant Director of the Land Revenue Disaster
Management, Department who produced the original map
for 1950-52 survey of Tashiding Block (exhibit-D-15)
showing the relevant portion for plot no.760, 761, 762,
769, 756 and 742. He identified the portion of the map on
the basis of which exhibit D-10 (rough sketch map of
survey operation of 1950-52) was prepared. He identified
the signatures appearing in exhibit D-10 as he had worked
with the signatories.
29. Amrit Raj Rai (D.W.4) was posted at Yuksom Sub-
Division Office as Revenue Officer-cum-Assistant Director.
He produced the original khasra khatiyan registers for
Tashiding Block pertaining to the survey of 1976-79
(exhibit-D16 and D17) which were maintained by the office
of the District Collector, Geyzing initially and thereafter, by
the office of the Sub-Divisional Magistrate at Yuksom as
Tashiding Block falls under its jurisdiction. He proved that
exhibit-D9 were the copies of the extracts of relevant pages
from exhibit D16 and D17. He also produced the original
map for the survey operation of 1976-79 for the entire
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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Tashiding Block. He proved that exhibit D-11 (copy of
rough sketch map of the survey operation of 1979-80) was
the certified copy prepared on the basis of exhibit-D18
(copy of the map for the survey operation of 1979-80 for
entire Tashiding Block). He also proved that the
corresponding plot no.814 as per the survey operation of
1950-52 was 761, 762 and portions of 694, 741 and 763 as
reflected in its report dated 01.02.2022. According to him
he found that plot no.814 was corrected vide Office Order
No.289/DCW (R) dated 09.01.1992 and a new plot
no.814/933 measuring an area of 1.1480 hectares had
been recorded in the name of Yongden Bhutia son of
Thinlay Bhutia. He also asserted that as per the records
available at his office vide Notification No.4/902/11/LR(S)
dated 27.11.1996 under section 4 (1) of the L.A. Act, 1894
plot no.814/933 was declared to be needed for public
purpose for construction of Rangit Project Concrete Dam in
Tashiding Block. He asserted that as per the records vide
Notification No.4/902/2/LR(S) dated 27.03.1996 under
section 6 of the L.A. Act, 1894 plot no. 814/933 was
notified to be needed for public purpose and that after the
acquisition by defendant nos. 1 and 2 an area of 0.5460
hectare of plot no.814/933 was recorded in the name of
Power Corporate, Government of India vide Office Order
No.113/DCW dated 06.07.1998 and that the remaining
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
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area of plot no.814/933 was recorded in the name of
Sonam Dadul Bhutia son of Yongden Bhutia vide Office
Order No.224/DCW/2000.
30. Tshering T. Bhutia (Defendant No.8) deposed on
behalf of both defendant nos. 7 and 8. He deposed that as
per office records survey operation 1979-80 plot no.814
measuring an area of 4.8500 hectares was recorded in the
name of the plaintiff which was later corrected vide Office
Order No.289/DCW (R) dated 09.01.1992 and new plot
no.814/933 measuring 1.1480 hectares had been recorded
in the name of Yongden Bhutia. He produced and exhibited
certified copies of the Notification No.42/902/11/L.R.(S)
dated 27.11.1996 under section 4(1) (exhibit-D24) and
Notification No.4/902/II/L.R.(S) dated 27.03.1997 under
section 6 (exhibit D25) of the Land Acquisition Act, 1894.
He produced the certified copies of the award (exhibit D26)
in favour of Yongden Bhutia passed under section 11 of the
L.A. Act, 1894. He produced and proved the money receipt
signed by Yongden Bhutia (exhibit D27). The defendant
no.8 also produced the certified copy of the khatiyan
parcha (exhibit D23) in the name of Yongden Bhutia and
proved the same.
31. K. Jeyaram-the Senior Manager of NHPC gave his
evidence on affidavit on behalf of defendant nos. 1 and 2.
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
He proved that plot no.814/933 had been duly acquired by
Government of Sikkim for NHPC and produced the
notifications under section 4, 6 of the L.A. Act, 1894
(exhibit D1 and D2). He also proved that payment of
compensation had been duly made.
32. During the cross examination of the witnesses of
the defendant nos. 3 to 6 as well as the witnesses for the
other defendants the plaintiff could not extract anything
that would cloud their evidence.
33. From the above it is clear that the plaintiff did
not lead any concrete evidence to support his contention
that he was the actual owner of the suit property bearing
plot no.814/933 measuring an area of 1.1480 hectares.
The plaintiff did not examine himself and Gyatso Bhutia
the power of attorney holder had no personal knowledge
about the property prior to 2015. Megh Bahadur Kapil
(Chettri) (P.W.1) and Thutob Bhutia (P.W.2) deposed on
behalf of the plaintiff but could not give any substantive
evidence in support of the plaintiff's case. Their deposition
was unspecific and vague. The defendant no.4 who deposed
on behalf of defendant nos. 3 to 6 on the other hand was
specific about their lineage and how the disputed property
was transferred in the name of late Yongden Bhutia his
grandfather. The deposition of defendant no.4 could not be
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
tarnished during his cross examination and corroborated
by the deposition of the Sub-Divisional Magistrate
(defendant no.8). The fact that the disputed property had
been acquired by the respondent nos. 7 and 8 for
respondent nos. 1 and 2 and compensation duly paid has
been sufficiently proved by their witnesses. Therefore, the
conclusion of the learned Trial Court that the plaintiff had
failed to prove that plot no.814/933 was actually owned by
him cannot be faulted. The learned Trial Court has dealt
with the evidence produced by the plaintiff in great length
and concluded that the plaintiff had failed to prove his
case. The learned Trial Court has also held that plot
no.814/933 measuring 1.1480 hectares is the property of
the defendant nos. 3 to 6 since it is found to be the
property of their grandfather late Yongden Bhutia but
erroneously recorded along with Government forest land in
the name of plaintiff during the 1979-80 survey operation.
Issue No.1 was rightly decided by the learned Trial Court.
34. The learned Trial Court held that there was no error
in rectification of plot no.814/933 in the revenue records in
the year 1992 and its re-transfer in the name of late
Yongden Bhutia, grandfather of defendant nos. 3 to 6
based on the evidence of Dhan Bahadur Tamang (D.W.2)
Tirtha Ram Rai (D.W.1) and Amrit Raj Rai (D.W.4). The
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
learned Trial Court held that defendant nos. 3 to 6 being
the grandson and legal heirs of late Yongden Bhutia have
lawfully inherited plot no.814/933 and therefore are in
lawful possession as legal owners. Accordingly, the learned
Trial Court also decided issue nos.2 and 5 in favour of
defendant nos. 3 to 6 and against the plaintiff.
35. The learned Trial Court held that late Sonam
Dadul Bhutia was entitled to payment of compensation for
acquisition of the suit land measuring 0.5460 hectares by
defendant nos. 7 and 8 and on behalf of defendant nos. 1
and 2. Accordingly, the learned Trial Court decided issue
no.3 in favour of defendant nos. 3 to 6 and against the
plaintiff.
36. The learned Trial Court held that the acquisition
of plot no.814/933 (renumbered as 814/983) after
acquisition measuring 0.5460 hectares was done validly
duly following the procedure of law and decided issue no.4
in the affirmative in favor of the defendant nos. 3 to 6 and
against the plaintiff.
37. The records reflect the acquisition process for
plot no.814/933 ended in the year 1998. Exhibit P6
(computerized records of rights/parcha) produced by the
plaintiff himself clearly reflects, in the remarks column,
that the correction in plot no.814 was done vide Office
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
Order No.289/DCW (R) dated 09.01.1992. According to
Gyatso Bhutia the power of attorney holder of the plaintiff
exhibit P6 was issued on 09.05.2011 after depositing the
previous hand written parcha to the authorities for
issuance of new parcha i.e. exhibit P6. He also admitted the
endorsement in the last column under the head "Kaifiyat"
stating "vide Office Order No.289/DCW (R) dated
09.01.1992". According to Amrit Raj Rai (D.W.4), the
Revenue Officer and Assistant Director, as per the records
plot no.814 was corrected vide Office Order No.289/DCW
(R) dated 09.01.1992 and new plot no.814/933 measuring
an area of 1.1480 hectares had been recorded in the name
of Yongden Bhutia. He also proved that after the
acquisition the same plot no.814/933 was recorded in the
name of the Power Corporate on 06.07.1998 and the
remaining area of plot no.814/933 was recorded in the
name of Sonam Dadul Bhutia. The factum of the
acquisition and the award having been made in the year
1998 has been adequately proved by the defendant nos. 1
and 2 and defendant nos. 7 and 8. The suit which was filed
in the year 2018 for the reliefs as prayed for were grossly
barred by limitation as has been rightly held by the learned
Trial Court. All the issues were examined in detail by the
learned Trial Court and decided correctly. This Court finds
no fault in the judgment of the learned Trial Court.
Mingyur Bhutia @Ingrik Dorjee vs. The Chief Engineer, National Hydro Power Corporation Ltd. &
Ors.
38. Resultantly, the judgment and decree passed by
the learned Trial Court is upheld. The appeal fails. The
parties shall bear their respective costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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