Sikkim High Court
M/S Nauratanmal Ashok Kumar And Anr vs Smt. Yangzila Bhutiani And Anr on 5 May, 2025
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. 06 of 2019
1. M/s Nauratanmal Ashok Kumar,
A Hindu Undivided Firm,
Represented by its Karta,
Shri Sampatlal Bucha,
M.G. Marg, Gangtok, East Sikkim.
2. Shri Sampatlal Bucha,
S/o Late Ishwar Chand Bucha,
M.G. Marg, Gangtok, East Sikkim
Pin No. 737101.
..... Appellants
Versus
1. Smt. Yangzila Bhutiani,
W/o Shri Phuchung Tshering Bhutia,
R/o Development Area,
Gangtok, East Sikkim,
(Through her Constituted Attorney/Son
Mr. Sonam Gyatso Nadi).
2. The Sub-Registrar of Documents,
O/o District Collectorate,
East Sikkim,
Gangtok
..... Respondents
Appeal under Order XLI, Rule 1 and 2 of the Code of
Civil Procedure, 1908.
Memorandum of Appeal against the judgment dated 12.04.2019 and Decree
dated 12.04.2019 passed by the learned District Judge, Special Division-I
Sikkim at Gangtok in Title Suit (Declaratory) No. 01 of 2014.
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RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
Appearance:
Mr. Sampatlal Bucha, Appellant No.2 in person for the
Appellants.
Mr. Sudipto Mazumdar, Senior Advocate with Ms.
Mingma Lhamu Sherpa, Advocate for the Respondent
no.1.
Mr. S.K. Chettri, Government Advocate for the
Respondent no.2.
With
R.F.A. No. 12 of 2019
M/s Nauratanmal Ashok Kumar,
A Hindu Undivided Firm,
Represented by its Karta,
Shri Sampatlal Bucha,
M.G. Marg, Gangtok, East Sikkim
Pin No. 737101.
..... Appellant
Versus
Smt. Yangzila Bhutiani,
W/o Shri Phuchung Tshering Bhutia,
R/o Development Area,
Gangtok, East Sikkim,
Pin No. 737101.
(Through her Constituted Attorney/Son
Mr. Sonam Gyatso Nadi).
..... Respondent
Appeal under Order XLI, Rule 1 and 2 of the Code of
Civil Procedure, 1908.
Memorandum of Appeal against the Order dated 04.10.2019 and Decree
dated 04.10.2019 passed by the learned District Judge Special Division-I,
Sikkim at Gangtok in the application of plaintiff under Order XII Rule 6 read
with Section 151 of the Code of Civil Procedure, 1908 in the Eviction Suit No.
18 of 2013 passed against the Defendant.
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RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
Appearance:
Mr. Sampatlal Bucha, Appellant in person for the
Appellant.
Mr. Sudipto Mazumdar, Senior Advocate with Ms.
Mingma Lhamu Sherpa, Advocate for the Respondent.
Date of Judgment : 05.05.2025
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This judgment shall dispose two regular first
appeals i.e RFA No.06 of 2019 and RFA No 12 of 2019.
2. R.F.A. No. 06 of 2019 is an appeal against
judgment and decree both dated 12.04.2019 passed by the
learned District Judge, Special Division-I, Sikkim at
Gangtok in Title Suit (Declaratory) No.1 of 2014 filed by the
appellants i.e. M/s Nauratanmal Ashok Kumar and
Sampatlal Bucha. The impugned judgment and decree both
dated 12.04.2019 dismissed the counter claim filed by the
appellants. The counter claim sought 17 prayers all
revolving around the two sale deeds dated 03.09.1996 (first
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sale deed) and 10.02.1998 (second sale deed). The two sale
deeds transferred the suit property in which the appellant
was a tenant firstly, by Sakuntala Devi the first
owner/landlady to Azey Bhutiani and thereafter, to Yangzila
Bhutiani by Azey Bhutiani.
3. R.F.A. No. 12 of 2019 is an appeal against Order
dated 04.10.2019 in an application filed by Yangzila
Bhutiani under Order XII Rule 6 read with Section 151 of
the Code of Civil Procedure, 1908 (CPC) praying for a decree
on admission in Eviction Suit No.18 of 2013 filed by
Yangzila Bhutiani against Nauratanmal Ashok Kumar. It
was held that the appellant had admitted in the written
statement that they had not paid the rent and as such was
liable to be evicted under the Gangtok Rent Control and
Eviction Act, 1956.
4. When the matter was taken up for hearing before
this Court Sampatlal Bucha for the appellants submitted
that the appellant's reply to I.A. No. 05 of 2022 filed by
Yangzila Bhutiani seeking a direction upon the appellants to
deposit all arrears of rent should be considered his
submissions in both the appeals. A perusal of the reply filed
by the appellants reflects that it is a repetition of the
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indiscriminate and unsubstantiated callous allegations
made in the appeal earlier against this Court's Registry and
the Sub-Registrar, East District compelling this Court to
pass order dated 12.11.2020 in R.F.A. No. 06 of 2019.
Although, when pointed out, Sampatlal Bucha, desired to
rectify the use of inappropriate words and language in the
appeal and did so in the appeal he has repeated it again in
this reply. This is contumacious. The averments made
therein are scandalous and does not deal with the issues
relevant in the present appeals. These averments made in
the reply are struck of.
R.F.A. No. 06 of 2019/COUNTER CLAIM/ TITLE SUIT
5. The necessary facts have been traced in the
impugned judgment dated 12.04.2019 in paragraphs 1 and
2 passed by the learned District Judge, Special Division-I
and is reproduced herein below:
"1. The case has a rather chequered history. The
present suit is in essence the counter-claim filed by
the present Plaintiffs as an offshoot to the eviction
suit earlier filed by the Defendant No.1 Smt. Yangzila
Bhutiani which was registered as Eviction Suit No.1
of 2010 (titled Mrs. Yangzila Bhutiani, Plaintiff v. M/s
Nauratanmal Ashok Kumar & Shri Sampatlall Bucha,
Defendants). The said suit later came to be
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M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
withdrawn pursuant to the leave of the Hon'ble High
Court of Sikkim granted in that regard vide its order
dated 02.07.2012 in Civil Revision Petition (CRP) NO.
03 of 2012, Smt. Yangzila Bhutiani, Petitioner v. M/s
Nauratanmal Ashok Kumar & Anr., Respondents.
However, the counter-claim has continued to this
date after being registered as a separate suit. In due
course the Defendant No.2 came to be added as a
party vide order dated 08.12.2016, at serial No.46, of
this Court.
2. Shorn of unnecessary details, the facts
relevant for the determination of issues involved in
the present suit are as follows. It pertains to a plot of
land measuring 100 ft x 28 ft on which a three
storied RCC building stands. It is situated at a prime
location at Gangtok viz., M.G. Marg, Gangtok, East
Sikkim (hereinafter referred to as "the suit properties"
and /or "suit premises"). The present Plaintiffs are
admittedly the tenants in a portion of the said
building. They have been continuing as such since
the said premises were owned by one Smt.
Sakuntala Devi (since deceased), wife of late
Banshilal Agarwalla. The suit properties were earlier
sold by her (Sakuntala Devi) to one Smt.Azey
Bhutiani (also deceased) vide a registered sale deed
dated 03.09.1996 (hereinafter also referred to as "the
first sale deed"). The said sale was unsuccessfully
challenged by the present Plaintiffs (tenants) by
approaching the concerned registering authorities
(under Def. No.2) as well as by filing a Writ Petition
before the Hon'ble High Court of Sikkim being Writ
Petition No.109 of 1998, Sampatlal Bucha & Anr.,
Petitioners v. Union of India & Ors., Respondents,
Late Sakuntala Devi and late Azey Bhutiani were the
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Respondent Nos. 9 & 10 in the said Writ Petition.
Vide its judgment dated 19.03.2001 the Hon'ble High
Court was pleased to dismiss the said Writ Petition
with costs. It was also held by the Hon'ble High
Court that the Plaintiffs (tenants) had no locus to
challenge the validity of the above sale deed.
Subsequently, late Azey Bhutiani sold the suit
premises to the present Defendant No.1 Smt.
Yangzila Bhutiani vide another sale deed dated
10.02.1998 (exhibit D2/(G) (hereinafter also referred
to as "the second sale deed"). That is how the
present Defendant No.1 came to be involved in this
prolonged litigation which has rather taken a
slumberous course."
6. Three issues were framed:-
(i) Whether Yangzila Bhutiani's claim is based on
collusive, void and fraudulent documents?
(ii) Whether the documents, if fraudulent, are liable
to be impounded?
(iii) What relief is the appellants entitled to?
7. Seventeen witnesses were examined by the
appellants. Three witnesses were examined by Yangzila
Bhutiani. The State-respondent did not adduce evidence.
8. The counter claim raised challenges to the two
sale deeds by which the suit property was transferred from
Sakuntala Devi to Azey Bhutiani and thereafter from Azey
Bhutiani to Yangzila Bhutiani. Appellant no.2 sought to
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allege collusion in making the two sale deeds and submitted
that they were void and fraudulent.
9. Appellant no.2 filed his evidence on affidavit in
which he alleged that Sakuntala Devi had not sold the suit
property to Azey Bhutiani and therefore, the question of
right and obligation of monthly tenancy passing to Azey
Bhutiani and Yangzila Bhutiani did not arise. Rest of his
evidence on affidavit is argumentative. He raised doubts
about the signature of Yangzila Bhutiani. He stated that the
two sale deeds, rectification deed (exhibit B) and the deed of
release (exhibit C) were forged documents and made his
submission as to why he thought that they were forged. He
did not provide any details as to who had committed the
forgery and in what manner. He made allegations and raised
doubts on various officers, advocates involved in the process
of registration of the sale deed. However, he did not make
any specific allegation of how they were involved in the
forgery. A perusal of the evidence on affidavit which ran into
60 paragraphs reflects that he had sought to raise doubts on
every official act done during the process of registration of
the two sale deeds including making unverified allegations
against the officers. He raised doubts on the lawyers, the
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Registry of this Court, the District Court and the Registering
Officer.
10. During cross examination the appellant no.2
admitted that Sakuntala Devi was the owner of the suit
property and he was her tenant; that they had filed writ
petition challenging the said transaction between Sakuntala
Devi and Azey Bhutiani; that they had been served a notice
by Yangzila Bhutiani intimating him about the purchase of
the suit property by her and for payment of rents; that he
had met Sakuntala Devi last in the year 1965 and although
he had been sending rent to her through money order the
same were being returned; that he had not inquired from
Sakuntala Devi or her legal heirs as to whether she had
disposed of her suit property; that he had never asked Azey
Bhutiani or her legal heirs whether the second sale deed
bears the signature of Yangzila Bhutiani; that he had not
lodged any First Information Report (FIR) against this
Court's Registry, the District Court, the learned District
Judge, Special Division-I and the Sub-Registrar, East
District alleging forgery; that he had no personal knowledge
regarding the specific particulars of the forgery and
suppression of material facts which he had alleged in the
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evidence on affidavit; that he had made an offer to
Sakuntala Devi to purchase the suit property which was not
accepted; that he had made various averments in his
evidence on affidavit which were not pleaded in the counter
claim; that he was occupying the suit property as a tenant;
that he had not given any particulars of fraud and forgery in
his counter claim; that he could not identify the signature of
the persons who had attested the documents exhibited by
him; that he had no knowledge as to who had prepared the
deed of rectification (exhibit-B) and deed of release (exhibit-
C); that he was still to confirm whether the information
regarding forgery made by him is genuine or not; that he did
not know whether there was a document of sale between
Azey Bhutiani and Yangzila Bhutiani.
11. During cross examination by the State-
respondent the appellant no.1 admitted that he could not
say whether Sakuntala Devi had appeared before the State-
respondent during the time of registration although the
copies of the note sheet (exhibit-5 in nine pages) indicated
that she was in fact present when she sold the property to
Azey Bhutiani; that he had never seen the first sale deed
executed by Sakuntala Devi.
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With
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M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
12. The appellants examined 16 other witnesses.
Kessang Rinzing Lachungpa (P.W.2) the daughter of Ajey
Bhutiani confirmed that her mother had purchased the suit
property. She deposed that she had applied for mutation of
the suit property on behalf of her mother and identified the
application (exhibit-7). She identified the original sale deed
dated 10.12.1998 (exhibit-D). She identified the signatures
of her brothers therein. She also deposed that her mother
had sold the suit property to Yanzila Bhutiani.
13. Ngudup Phuntshog (P.W.3) posted as the Assistant
Registration Clerk at the District Collectorate examined the
file concerning the registration proceedings with respect to
the sale deed executed by Azey Bhutiani. He identified the
note sheets and the officers who had made them including
himself. He deposed that necessary mutation of the suit
property was done in favour of Azey Bhutiani who had
purchased it from Sakuntala Devi on the basis of sale deed
dated 03.09.1996. He identified the signature of V.B. Pathak
the then District Collector. He confirmed that he had gone to
the residence of Azey Bhutiani and obtained her thumb
impression on the second page of the sale deed dated
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10.02.1998. He identified the sale deed dated 10.02.1998
(exhibit-D2/G) and the thumb impression of Azey Bhutiani.
14. Mohan Kumar Rai (P.W.4)-the Registration Clerk in
the District Collectorate examined the file pertaining to the
sale transaction between Sakuntala Devi and Azey Bhutiani.
He confirmed that the sale deed dated 03.09.1996 was duly
registered after following the procedure. He identified his
note sheets as well as signatures thereon during the process
of registration. He confirmed that there had been a no
forgery and tampering with the concerned noting or any
other official records.
15. L.N. Pokhrel (P.W.5)-Head Surveyor in the District
Collectorate, East also confirmed the execution of the sale
deed dated 03.09.1996 between Sakuntala Devi and Azey
Bhutiani.
16. Kinzang Choden (P.W.6)-Assistant Registrar,
Judicial, High Court of Sikkim examined various documents
i.e. exhibits-17, 18 and 19 and confirmed that pursuant to
the order dated 17.03.2005 passed by this Court in Civil
Revision No.01 of 2005 she had written a letter to the Sub-
Registrar, East District requiring her to send the original
sale deed registered in the year 1996 as directed by this
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Court. She identified exhibit-7 as the certified copy of the
correspondence that was sent under her signature. She
submitted that in compliance thereof the Sub-Registrar
forwarded the concerned sale deed vide letter dated
19.03.2005. She also deposed that on 14.06.2005 the
original sale deed was returned to the Sub-Registrar vide
letter dated 14.06.2005 and the concerned sale deed had
been duly placed before this Court.
17. Tej Bahadur Thapa (P.W.7)-Lawyer for Azey
Bhutiani confirmed that he was a lawyer and acted as per
her instructions before the District Collectorate in the
mutation proceedings. He made it clear that he had nothing
to do with the registration proceedings between Sakuntala
Devi and Azey Bhutiani and had only filed an application for
some certified copies under her instructions. He deposed
that he had no part in any collusion or misdoings or other
criminal activities as alleged with respect to the concerned
documents or proceedings.
18. Sherap Shenga (P.W.8)-the then Sub-Divisional
Magistrate, Gangtok examined the official records of the
District Collectorate and deposed that sometime in 2001 a
power of attorney instrument dated 10.02.2000 was
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submitted for registration executed by Azey Bhutiani
constituting Phuchung Tshering Bhutia as her constituted
attorney with respect to the suit property and that it was
mutated later on. He also identified the concerned mutation
order (exhibit-D1/A) under his signature. He identified the
notings made by V.B. Pathak the then District Collector on
the basis of which the necessary mutation was done in
favour of Azey Bhutiani who has purchased the suit
property from Sakuntala Devi vide sale deed dated
03.09.1996 registered on 04.10.1996. He also identified the
various officers and their signatures concerning the
registration of the sale deed dated 10.02.1998.
19. Thukchuk Lachungpa (P.W.9)-Ajey Bhutiani's
son-in-law confirmed that Azey Bhutiani and Sakuntala
Devi had executed the sale deed dated 03.09.1996 and that
he had not purchased the suit property in the name of Azey
Bhutiani. He confirmed that subsequently Azey Butianin
had sold the suit property to Yangzila Bhutiani and that the
money receipt (exhibit-D2/L) was given by Azey Bhutiani on
receipt of the consideration amount for the sale of the suit
property from Yangzila Bhutiani who had purchased the suit
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property. He identified the witness in the money receipt to
be his wife Kessang Rinzing.
20. Karma Loday Bhutia (P.W.10)-Head Surveyor, in
the District Collectorate, East examined the note sheets
relating to sale deed executed between Azey Bhutiani and
Yangzila Bhutiani. He confirmed that they had applied for
mutation of the suit property and that after verification it
had been processed by him. He confirmed that the entire
process can safely be presumed to have been done properly.
He also deposed that as these documents are kept in safe
custody of the Sub-Divisional Magistrate it is not at all
possible for anyone to resort to malpractice, tampering,
forgery or change of documents.
21. A.K. Chettri (P.W.11)-Joint Secretary, Land
Revenue Department also could not say if the sale deed
between Sakuntala Devi and Azey Bhutiani was tampered
with. He confirmed that there was no chance of any
document being tampered in any way in the District
Collectorate office, the registration department or the land
revenue department as the security and preservation there
is of high standards.
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22. Dawa Tashi Bhutia (P.W.12)-Dispatcher/Lower
Divisional Clerk in the District Collectorate, East deposed
that the original sale deed registered in the year 1996 was
sent to this Court and returned and after that it had gone
missing and although he was directed to search for it, it
could not be traced.
23. V. B. Pathak (P.W.13)-District Collectorate, East
examined the notings of the District Collectorate under his
signature and confirmed that he had directed the mutation
of land in favour of Azey Bhutiani on the basis of the sale
deed. He identified the various note sheets concerning the
sale deed executed between Sakuntala Devi and Azey
Bhutiani. He also could not say if the sale deed dated
03.09.1996 between Sakuntala Devi and Azey Bhutiani
(exhibit-20) was a forged document. He confirmed that all
objections taken by appellant no.2 regarding the mutation of
the suit property in favour of Azey Butiani was exhaustively
heard, rejected and consequently mutation in favour of Azey
Bhutiani allowed on 21.05.2001.
24. Urvashi Poudyal (P.W.14)-Sub-Divisional
Magistrate/Sub-Registrar, East confirmed that the
rectification deed (exhibit-B) and the deed of release (exhibit-
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C) were registered in the office of the Sub-Divisional
Magistrate/Sub-Registrar. She identified her signatures on
those deeds and deposed that it was registered only after
she was fully convinced and satisfied that they were in
proper order, legal and valid and all the procedural
requirements were complete. She confirmed that there was
no fraud, malpractice or any illegality committed in
registering them.
25. Ganga Pradhan (P.W.15)-Sub-Divisional
Magistrate/Sub-Registrar in the District Collectorate, East
could also not depose anything that would substantiate the
allegation of forgery or tampering made by the appellants.
26. Phuchung Tshering Bhutia (P.W.16)-husband of
Yangzila Bhutiani confirmed that he had been appointed
constituted attorney by Azey Bhutiani to file a suit on her
behalf against the appellants and in fact he had done so. He
confirmed that Sakuntala Devi had affixed her thumb
impression in the rectification deed (exhibit-B) and the deed
of release (exhibit-C) in his presence and in the presence of
an Advocate in Kalimpong. He confirmed that the sale deed
dated 10.02.1998 (exhibit-D2/G) executed between Azey
Bhutiani and Yangzila Bhutiani was presented for
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registration. He identified the money receipt (exhibit-D2/L)
issued by Azey Bhutiani acknowledging the receipt of the
consideration amount of the suit property from Yangzila
Bhutiani and that it was executed in his presence. He also
explained the delay in the registration process. He denied
that there was any malpractice, tampering or forgery with
regard to the sale deed dated 10.02.1998. He confirmed that
it was duly executed and property presented for registration.
27. Govind Mohan (P.W.17)-the District Collectorate,
East District examined the notings from the case records
and recollected that the sale deed document executed
between Sakuntala Devi and Azey Bhutiani had been
submitted for registration before the Sub-Registrar/District
Collectorate on 03.09.1996. He also deposed that the
appellants had made some objections to the registration
mainly on the ground that there was no income tax
clearance filed by Sakuntala Devi. When the matter was
placed before him he examined it and ordered the reopening
of the matter and its re-examination. Pursuant thereto fresh
notices had been issued and after the parties appeared he
had heard them and passed his order (exhibit-D2/V)
overruling the appellants objections. He denied the
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suggestion made that during these proceedings the sale
deed had not been placed before him. Although he confirmed
that he had in fact recorded and examined the various
objections regarding the registration process of the sale deed
between Sakuntala Devi and Azey Bhutiani, he could not
confirm the allegations of fraud, forgery, tampering and
malpractice alleged by the appellants. He confirmed that he
had followed the due process of law while dealing with the
concerned files during his tenure.
28. These witnesses produced by the Appellants did
not support or prove the allegation of forgery, collusion,
tampering and fraud alleged by the appellants. In fact the
appellants' witnesses confirmed that the two sale deeds were
validly transacted and registered.
29. It is trite that in respect of relief claimed by the
plaintiff he has to stand on his own legs by proving his case.
The appellants assertions in the counter claim filed by them
remained unproved in spite of production of 17 witnesses
and exhibiting numerous documents. The counter claim
therefore must fail on this ground alone as the appellants
have failed to establish their case even by preponderance of
probabilities.
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30. When Sakuntala Devi sold the suit property to
Azey Bhutiani on 03.09.1996 through the registered first
sale deed registered on 04.10.1996, the sale was challenged
by the appellants in Writ Petition (C) No 109 of 1998 before
this Court. In the writ petition, amongst the 11 respondents
arrayed, Sakuntala Devi and Azey Bhutiani were respondent
nos. 09 and 10 therein. The appellants sought quashing of
the first sale deed on the ground that it was void, illegal and
non-est; that it was registered in violation of the provisions
of laws enforced in Sikkim. A Division Bench of this Court
disposed of the writ petition by dismissing it with cost
payable to the respondents therein. It was found that the
appellants were tenants under Sakuntala Devi. The Division
Bench of this Court recorded the submissions made in the
writ petition by the appellants with regard to the grounds for
declaring the sale deed as void, invalid, inoperative and
illegal and disposed the writ petition holding:
"4. It would thus appear that the petitioners
wanted to purchase the property but the land
lady did not sell the same to them. Therefore,
they want the cancellation of the sale deed
purported to have been executed by
respondent no.9 in favour of respondent no.10.
The remedy of writ is not meant in respect of
disputes of title where the parties seek to
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litigate under ordinary civil law. Remedy of
writ is available against a public authority or
anyone performing public duty for the
enforcement of a fundamental right or
performance of a constitutional or statutory
duty. ................. We are of the view that, in
the instant case, the dispute before the Court is
not appropriate to the writ jurisdiction and,
therefore, there is no question of entering into
disputed questions of fact.
5. Besides, the petitioners have no locus
standi to bring the petition as they are the
tenants. A tenant has no locus to challenge the
validity of a sale deed which his landlords
execute in favour of another person. On the
execution of the sale deed only the landlord
changes and not the rights and obligations
under the lease. As such, we do not see any
merit in the submission made on behalf of the
petitioners that they have locus standi to raise
the dispute about the validity of the sale deed
as has been done in this case."
31. The appellants have sought to challenge the
second sale deed between Azey Bhutiani and Yangzila
Bhutiani on identical grounds as they have challenged the
first sale deed once again raising the same issues as raised
in the writ petition. The appellants did not provide any
details or particulars about the alleged forgery, collusion,
fraud and tampering allegation made once again.
RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
32. The appellants have therefore not been able to
question the derivative title of Azey Bhutiani and Yangzila
Bhutiani even to the limited extent permissible under
Section 116 of the Indian Evidence Act, 1872.
33. In Tika Khawas vs. Pashupati Nath1 this Court held
that the expression 'landlord' as used in the Gangtok Rent
Control and Eviction Act, 1956 is to be construed in its
ordinary sense and there is no warrant for the contention
that 'landlord' means 'owner'. Yangzila Bhutiani, quite
evidently was the landlady of the suit property in which the
appellants were tenants.
34. The appellants who were admittedly tenants were
seeking to challenge ownership of Yangzila Bhutiani and
Azey Bhutiani in the counter claim filed by them to defend
the suit for eviction.
35. It is therefore, held that the appellants have failed
in their attempt to establish that Yangzila Bhutiani's claim
was based on collusive, void and fraudulent documents. It is
also held that as these documents including the two sale
deeds, the rectification deed (exhibit-B) and the deed of
1 AIR 1986 Sikkim 6
RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
release (exhibit-C) have not been proved by the appellants to
have been fraudulent they are not liable to be impounded. In
these circumstances, the appellants are held not entitled to
any of the reliefs prayed for in the counter claim. The three
issues framed by the learned District Judge are accordingly
decided as above.
36. Thus, this Court is of the firm view that the
impugned judgment dated 12.04.2019 dismissing Title Suit
No.01 of 2014 i.e. the counter claim filed by the appellants
requires no interference. The decree dated 12.04.2019 is
upheld.
R.F.A. No. 12 of 2019/EVICTION SUIT NO. 18 OF 2013
37. Yangzila Bhutiani-the respondent and the plaintiff
in Eviction Suit No. 18 of 2013 filed the suit for eviction
against the M/s Nauratanmal Ashok Kumar-the appellant
and the defendant. She also prayed for a decree of arrears of
rent amounting to Rs.54,800/- from December, 2001 till
May 2013 as well as mesne profit @ Rs.400/- per month
from December, 2002 till recovery of possession. She
specifically pleaded that the appellant in spite of receipt of
letter dated 03.01.2002 (exhibit-O) and subsequent letter
dated 06.04.2002 (exhibit-P) refused to pay the rents of the
RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
suit premises to her. Yangzila Bhutiani pleaded that the
appellant was liable to pay arrears of rent from the month of
December, 2001 which it had neglected to pay in spite of
repeated request and demands. She specifically pleaded that
the appellant was a defaulter under the Gangtok Rent
Control and Eviction Act of 1956.
38. The appellant filed a written statement against
the suit. In the written statement the appellant specifically
pleaded that it had not made any payment to Yangzila
Bhutiani as she was not the owner of the suit premises. The
appellant further pleaded that Yangzila Bhutiani had never
acquired any title to the suit property and consequently she
had not become the land lady of the appellant and therefore,
not entitled to any rent.
39. During the pendency of the title suit the Yangzila
Bhutiani filed an application under Order XII Rule 6 read
with Section 151 of the CPC praying for a decree on
admission. Order XII Rule 6 read with Section 151 of the
CPC permits the court, either on the application of any party
or of its own motion and without waiting for the
determination of any other question between the parties, to
make such order or give such judgment as it may think fit
RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
having regard to such admission when admissions of fact
have been made either in the pleading or otherwise, whether
orally or in writing. The learned District Judge allowed this
application filed by Yangzila Bhutiani holding that the
appellant had in fact admitted in the written statement that
they had not paid the rent and as such they were liable to be
evicted under the Gangtok Rent Control and Eviction Act,
1956.
40. Section 4 of the Gangtok Rent Control and
Eviction Act, 1956 permits the landlord to evict the tenant
"when the rent in arrears amount to four months or more".
Yangzila Bhutiani had clearly pleaded that the appellants
who were the tenants were in arrears of rent from December
2001. Admittedly, the appellants have not paid rent nor
deposited the same in court till date. The non payment of
rent was for more than four months. Thus, Yangzila
Bhutiani is entitled to the reliefs she seeks in the eviction
suit as she was the landlady. The eviction decree passed by
the learned District Judge is confirmed. Yangzila Bhutiani is
entitled to the arrears of rent from December, 2001 till date
of vacation of the suit property by the appellants.
RFA No 06 of 2019
M/s Nauratanmal Ashok Kumar & Anr. vs. Yangzila Bhutiani & Anr.
With
RFA No 12 of 2019
M/s Nauratanmal Ashok Kumar vs. Yangzila Bhutiani
41. Having examined the pleadings exchanged
between the parties and the clear and unequivocal
admission made by the appellant in the written statement,
this Court is of the firm view that the impugned Order dated
04.10.2019 cannot be faulted. It is accordingly upheld. It is
therefore ordered that the appellant shall vacate and
handover the suit property within a period of three months.
It is further ordered that the appellant shall pay the rents
payable from December, 2001 till the vacation of the suit
property to Yangzila Bhutiani within the said periods of
three months.
42. Consequently, both appeals i.e. Regular First
Appeal No. 06 of 2019 and Regular First Appeal No. 12 of
2019 are dismissed and its respective interim applications
disposed.
43. The respondents are also entitled to the cost
incurred by them which shall be borne and paid by the
appellants for both the appeals.
( Bhaskar Raj Pradhan )
Judge
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