Sikkim High Court
Krishna Bahadur Chettri And Ors vs Rameshwar Mandir Committee on 19 November, 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.S.A. No. 01 of 2023
1. Shri Krishna Bahadur Chettri,
Aged about 48 years,
S/o Late Harka Bahadur Chettri,
R/o Kitam Namchi,
South Sikkim-737126.
2. Shri Deo Prakash Chettri,
Aged about 62 years,
S/o Late Harka Bahadur Chettri,
R/o Kitam Namchi,
South Sikkim-737126.
3. Shri Ashbir Chettri,
Aged about 54 years,
S/o Late Harka Bahadur Chettri,
R/o Kitam Namchi,
South Sikkim-737126.
4. Shri Lal Bahadur Chettri,
Aged about 44 years,
S/o Late Harka Bahadur Chettri,
R/o Kitam Namchi,
South Sikkim-737126.
5. Smt. Dhan Kumari Chettri,
Aged about 82 years,
W/o Late Harka Bahadur Chettri,
R/o Kitam Namchi,
South Sikkim-737126.
6. Shri Andrew Jackson,
Aged about 66 years,
S/o Late John Jackson,
R/o Kitam Namchi,
South Sikkim-737126.
..... Appellants/Plaintiffs
Versus
Rameshwar Mandir Committee,
Represented by its President,
2
R.S.A. No. 01 of 2023
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
R/o Kerabari, Kerabari Block,
Melli Bazar, Melli,
South Sikkim-737128.
..... Respondent/Defendant
Regular Second Appeal under section 100 of the Code of
Civil Procedure, 1908 read with section 151 of the Code of
Civil Procedure, 1908.
Second Appeal against the impugned judgment and decree both dated
29.04.2023 passed by learned District Judge, at Namchi, South
Sikkim in Title Appeal No. 04 of 2018.
Appearance:
Mr. A. Moulik, Senior Advocate with Mr. Ranjit
Prasad, Ms. Neha Kumari Gupta and Ms. Laxmi
Khawas, Advocates for the Appellants/Plaintiffs.
Mr. B. Sharma, Senior Advocate with Mr. Meg Nath
Dhungel, Ms. Shreya Sharma, Ms. Puja Kumari
Singh, Ms. Kajal Rai, Ms. Roshni Chettri and Mr.
Nishant Agarwal, Advocates for the
Respondent/Defendant.
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Date of Hearing : 05.11.2025
Date of Judgment : 19.11.2025
Date on which Uploaded : 19.11.2025
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Krishna Bahadur Chettri and five others (the
appellants) have preferred a second appeal under section
100 of the Code of Civil Procedure, 1908.
2. The provision reflects that an appeal shall lie to this
Court from every decree passed in appeal by any Court
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
subordinate to the High Court, if the High Court is
"satisfied that the case involves a substantial question of
law".
3. The sole respondent is Rameshwar Mandir Committee
represented by its President. The appellants had filed a
declaratory suit No.18 of 2016 (the suit) against the
respondent. For the purpose of this appeal the parties shall
be referred to as the plaintiffs and the defendant
hereinafter.
4. The plaintiffs' case in short was that they were the
heirs of late Harka Maya Chettri who owned the suit land
purchased in the year 1963 from one Kul Bahadur Tamang
through a registered sale deed. They asserted that late
Harka Maya Chettri was the grandmother of plaintiff nos. 2
to 4 and mother of plaintiff nos. 1 and 5. In the cause title
the plaintiff no.1 is reflected as son of late John Jackson.
Plaintiff nos. 2 to 5 are reflected as sons of late Harka
Bahadur Chettri and plaintiff no. 6 is reflected as wife of
late Harka Bahadur Chettri and daughter of late Harka
Maya Chettri. They claimed that neither late Harka Maya
Chettri nor her husband late John Jackson had parted
with the suit land during their lifetime. However, the
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
plaintiffs could not locate the sale deed or the property
papers in their ancestral house until in proceedings
relating to R.F.A. No.06 of 2015 the defendant filed the sale
deed. It was then the plaintiffs realized that the sale deed
and other property papers relating to the suit land were
with the defendant and alleged that the defendant had by
some illegal and surreptitious means, taken the sale deed.
5. The plaintiffs stated that they filed the suit when the
defendant started claiming the suit land to be theirs. The
plaintiffs asserted that there was no partition between the
parties and the suit land is still the joint and undivided
property under common enjoyment of the plaintiffs. The
plaintiffs sought to rely upon purported certified copies of
the registered sale deed of 1963 and the parcha khatiyan in
the name of the plaintiffs. On such pleadings the plaintiffs
prayed for:-
(a) A decree confirming right, title and
possession of the plaintiffs with respect to
the suit land.
(b) A decree declaring that the defendant has
got no right, title and interest in and over
the lands belonging to late Harka Maya
Chettri and is nothing but a rank
tresspasser.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
(c) A decree declaring that the record of rights
showing the suit land recorded in the name
of the defendant is bad in law, void ab
initio, illegal and be set aside and or
cancelled.
(d) A decree for permanent injunction
restraining the defendant and their men
and agents from disturbing the possession
and enjoyment of the suit land by the
plaintiffs.
(e) A decree for the costs of the suit, and for
(f) A decree for any other relief or reliefs to
which the plaintiffs may be found entitled
to under law.
6. The defendant in its written statement took various
legal objections on the maintainability of the suit. They
asserted that in fact late Harka Maya Chettri had alienated
the suit land to the defendant in the year 1965 and
therefore, the parcha khatiyans prepared after the survey of
1950-52 and thereafter, in 1980-82 reflects the name of the
defendant as the owner of the suit land. The defendant
claimed to have regularly paid the land rents for the suit
land from the year 1960 till 1996 and been in exclusive
possession since 1964. The defendant also took the plea
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
that at one point of time a portion of the suit land was
taken on lease by the Forest Department that was paying
rent to the suit land. The defendant claimed that this fact
proved that the State Government had recognised the
defendant as the owner of the suit land. The defendant
asserted that right from 1964 till the filing of the suit none
of the plaintiffs objected to the exclusive ownership and
possession of the suit land by the defendant. The defendant
asserted that the suit land "came to the answering
defendant during the lifetime of Harka Maya Chettri itself."
7. Based on the pleadings of the parties the learned Civil
Judge framed three issues for determination i.e.:
(1) Whether the plainitffs are entitiled to the decree
for declaration of title to the suit land?
(2) Whether the plaintiffs can file the instant suit in
view of the order dated 24.09.2016 passed by the
learned District Judge in Title Suit Case No.02 of
2013?
(3) Whether the plaintiffs are entitled to any relief
(s)?
8. During the trial the plaintiffs examined Krishna
Bahadur Chettri (plaintiff no.2/P.W.1), Ratna Bahadur
Chettri (P.W.2), Deo Prakash Chettri (Plaintiff No.3/P.W.2),
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
Ashbir Chettri, (Plaintiff No.4/P.W.3), Dhan Kumari
Chettri, (Plaintiff No.6/P.W.4),Ratna Bahadur Rai (P.W.3)
and Krishna Prasad Subba (P.W.4).
9. Krishna Bahadur Chettri (plaintiff no.2/P.W.1), only
reiterated the statements in the plaint and could not assert
possession of the suit land. Ratna Bahadur Chettri (P.W.2)
candidly admitted that he was related to the plaintiffs and
that he did not know if late Harka Maya Chettri had sold
the suit land and gifted the suit land to any other person.
10. Ratna Bahadur Rai (P.W.3) claimed to have been kept
in the suit land by late Harka Maya Chettri and he was
there till 2001. However, he had to leave the suit land in
2001 as it had become impossible to cultivate the property
due to wild animals. During cross-examination, he
admitted that he had no idea as to whether the suit land
was donated to the defendant by late Harka Maya Chettri
or late John Jackson. He admitted that the plaintiffs had
not filed any case regarding the suit land prior to 2013 and
his son Subash Rai is running a hotel in the suit land.
11. Krishna Prasad Subba (P.W.4) only deposed about the
relationship of the plaintiffs with each other and some
others and nothing else.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
12. Deo Prakash Chettri (Plaintiff No.3/P.W.2), Ashbir
Chettri (Plaintiff No.4/P.W.3) and Dhan Kumari Chettri
(Plaintiff No.6/P.W.4) did not depose anything substantial.
13. None of the plaintiffs' witnesses exhibited any
documentary evidence in support of the pleadings in the
plaint.
14. The defendant examined Ratna Bahadur Chettri
(D.W.1), Chabilal Sapkota (D.W.2) and Mohan Prasad
Sharma (D.W.3) and Tilak Bahadur Pradhan (D.W.4).
15. Ratna Bahadur Chettri (D.W.1) deposed that he was
the General Secretary of the defendant and reiterated the
statements made in the written statement. He stated that
late Harka Maya Chettri had alienated the suit land in
favour of the defendant and parted with its possession. He
claimed that the suit land was the property of the
defendant. He also stated that the Forest Department had
taken a portion of the suit land on lease and paid rent
thereof and that the defendant had been paying the land
rents regularly. D.W.1 exhibited numerous documents in
support of the defendant's claim including four documents
referred to and relied upon by the learned Appellate Court.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
16. During cross-examination, he admitted that he had
no documentary evidence to establish that the suit land
had been alienated by late Harka Maya Chettri and late
John Jackson in favour of the defendant. He also admitted
that he had no connection with the defendant in the year
1994-95.
17. Chabilal Sapkota (D.W.2) claimed to be the treasurer
of the defendant and also reiterated the statements made in
the written statement. He stated that both late Harka Maya
Chettri and late John Jackson had confirmed that the suit
land was alienated in favour of the defendant vide his
written representation to the District Collector dated
26.12.1977 (exhibit D/C). During cross-examination he
admitted that as late Harka Maya Chettri had purchased
the suit land vide (exhibit D/B) dated 27.06.1964 she could
not have sold the suit land before that. He admitted that he
had no knowledge as to whether the defendant has any
document apart from the "parcha" to prove that the suit
land belongs to the defendant or that it was alienated in
favour of the defendant.
18. Mohan Prasad Sharma (D.W.3) was also one of the
members of the defendant. He reiterated what was stated
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
by the defendant in the written statement. During cross-
examination, he admitted that he did not know how the
suit land was registered in the name of the defendant and
that he had been a member of the defendant since 1984.
19. Tilak Bahadur Pradhan (D.W.4) was the vice president
of the defendant. He also reiterated what was stated in the
written statement of the defendant. During cross-
examination, he admitted that he had become the vice
president in the year 2016 and that he did not know what
had transpired prior to 2016 regarding the suit land. He
also stated that the suit land was given to the defendant by
late John Jackson after the death of late Harka Maya
Chettri and that he did not know how it was transferred to
the defendant.
20. The defendant exhibited not only the "parcha
khatiyan" prepared pursuant to the 1950-52 survey and
1980-82 but also the original sale deed of 1963 by which
late Harka Maya Chettri had purchased the suit land from
late Kul Bahadur Tamang along with other property
documents. The defendant exhibited numerous other
documentary evidences.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
21. The learned Civil Judge dismissed the suit filed by the
plaintiffs' as the plaintiffs had not been able to prove their
case with any substantial evidence. The learned First
Appellate Court upheld the dismissal of the suit but also
concluded that certain documents could safely be relied
upon that proves and confirms the title of the defendant in
the suit land. These documents are:
(1) The sale deed between late Kul Bahadur
Tamang and late Harka Maya Chettri
registered on 27.06.1963 (exhibit D/B).
(2) Certified copy of Bustywala ko khatiyan
(exhibit D/F) certified on 11.03.1980.
(3) Certified copy of Bustywala ko khatiyan
(exhibit D/G).
(4) True copy of map prepared during survey
operation of 1980-81 (exhibit D/I).
22. The singular substantial question of law formulated
by this Court is "whether the learned First Appellate Court
misinterpreted and misconstrued the meaning intent of the
documents exhibited in the case and hence, wrongly
declared the Respondent/Defendant as the owner of the suit
property, having titled thereto"?. Therefore, it would be
important to examine each of these above documents relied
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
upon by the learned First Appellate Court to come to the
above conclusion.
(1) The sale deed between late Kul Bahadur Tamang
and late Harka Maya Chettri registered on 27.06.1963
(exhibit D/B).
23. The sale deed (exhibit D/B) executed between
late Kul Bahadur Tamang and late Harka Maya Chettri was
produced and exhibited by the defendant in the original.
The plaintiffs have staked their claim on the suit land
through this sale deed. According to the plaintiffs this
document was illegally and surreptitiously procured by the
defendant. The plaintiffs did not prove this allegation. The
plaintiffs did not question the sale deed although it was
exhibited by the defendant. The sale deed reflects that the
suit land was purchased by late Harka Maya Chettri from
Kul Bahadur Tamang for consideration on 15.05.1963 and
it was duly registered on 27.06.1963. The plaintiffs could
not substantiate their allegation that the defendant had
illegally and surreptitiously procured the sale deed.
Therefore, one could presume that the defendant had not
procured the original sale deed illegally. However, the
defendant in their written statement claimed that the suit
land was "alienated" in the year 1965 by late Harka Maya
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
Chettri in favour of the defendant. The word "alienated" is a
generic term to transfer or convey (property or property
rights) to another. Since the defendant claimed that late
Harka Maya Chettri "alienated" the suit land in favour of
the defendant, it was for them to prove the alienation,
which they failed to do through any legal document.
(2) Certified copy of Bustywala ko khatiyan (exhibit
D/F) certified on 11.03.1980
24. Although exhibit D/F was exhibited by Ratna
Bahadur Chettri (D.W.1) as the original "parcha khatiyan"
in the name of the defendant as per 1950-52 survey
operation, a scrutiny of the document reflects:
(i) It was not the original "parcha khatiyan"
maintained by the revenue authorities but only a
purported unsigned and undated copy certified
to be true in the year 1980.
(ii) The document, which is titled: "bustywala ko
khatiyan", is purportedly certified by the Head
Surveyor and the District Collector on
11.03.1980 both of whom were not produced as
witnesses.
(iii) It was not produced or exhibited by the maker of
the document.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
(iv) The document does not reflect who was the
authority who prepared it or when it was
prepared.
(v) The entries made therein were not proved to be
correct by any officer who are in the custody of
the "bustywala ko khatiyan".
(vi) Neither the holder of the document whose name
is purportedly recorded there nor the Amin who
prepared it have signed at the back of the
"bustywala ko khatiyan" as required by Rule 12
of the Record Writing or Kotha Purnu or Dru-
Deb and Attestation Rules of 1951 which was the
then existing Rules to acknowledge receipt of the
document.
(vii) The document was produced and exhibited by
Ratna Bahadur Chettri (D.W.1) who was born in
the year 1980 only and admittedly did not have
personal knowledge about it.
25. Even if the defendant had proved the document
as secondary evidence under section 65 of Indian Evidence
Act, 1872 and the fact that it was produced from proper
custody, there was no signature of the maker of the
document to presume it to be genuine. As it was not signed
by the maker of the document the question of presumption
of the hand writing was also not available. In any case,
merely because the document, which at the highest, was
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
only secondary evidence which was produced, it is not
sufficient to raise the presumption of due execution of the
original. Therefore, the defendant failed to prove the
"bustywala ko khatiyan" (exhibit D/F).
(3) Parcha khatiyan (exhibit D/G)
26. Ratna Bahadur Chettri (D.W.1) has produced
and exhibited the "parcha khatiyan" (exhibit D/G) as he
was the General Secretary of the defendant in whose name
it is recorded. The "parcha khatiyan" (Exhibit D/G) reflects
the name of the bustywala as "Rameshwar Mandir,
Kerabari Committee." The name of the "bari" is recorded as
Malbasey. The khasra numbers mentioned therein are 386,
387 and 391 and the total area recorded is 3.8280
hectares. This is the suit land. It purports to be in the
signature of the South District at Namchi signed on "27/8".
It does not reflect the year on which it was signed by the
Revenue Officer. The "parcha khatiyan" (exhibit D/G) has
been certified to be true copy by a person who has signed it
on 06.08.85. However, the identity of the person who
signed it and his designation is not mentioned therein. It
also contains the seal of the Office of the District Collector,
South District, Namchi. Further, the defendant did not
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
produce and prove the "parcha khatiyan" through the office
of the authority who maintained the revenue records. It
was produced by Ratna Bahadur Chettri (D.W.1) who had
no personal knowledge about the making of the "parcha
khatiyan" (exhibit D/G) except the fact that it was in the
records of the defendant.
(4) Survey map (exhibit D/I)
27. The survey map (exhibit D/I) is also only a true
copy of the purported original and exhibited by Ratna
Bahadur Chettri (D.W.1) who did not have any personal
knowledge about its preparation.
28. In the above circumstances, the finding of the
First Appellate Court that these documents could safely be
relied to conclude that the defendant had title to the suit
land would be incorrect based only on the presumption
under section 90 of the Indian Evidence Act, 1872. The
defendant failed to prove that the suit land had been
"alienated" in their favour by late Harka Maya Chettri. The
correctness of the entries in the "parcha khatiyan" (exhibit
D/G) or the "bustywala ko khatiyan" (exhibit D/F) were
also not proved by the defendant as they could not prove
how the suit land was "alienated" in their favour. Further,
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
it was defendant's case that the suit land was alienated in
their favour by late Harka Maya Chettri in the year 1965.
The defendant relied upon letter dated 26.12.1977
purportedly written by late John Jackson to the District
Collector (exhibit D/C). The contents of the letter reflect
that the assertion made in the written statement was
however, incorrect. In the letter dated 26.12.1977 (exhibit
D/C) late John Jackson states that his wife late Harka
Maya Chettri had died leaving behind him and his son as
the heir to the suit land; that he had donated it to the
defendant; and that in order to transfer the suit land he
has to execute a gift deed for registration. This clearly
reflects that late Harka Maya Chettri had not alienated the
suit land. The pleading in the written statement is contrary
to the contents of the letter dated 26.12.1977 (exhibit D/C)
relied upon by the defendant.
29. The sale deed (exhibit D/B) does reflect that late
Harka Maya Chettri was the owner of the suit land. The
plaintiffs could not however, prove how they were entitled
to late Harka Maya Chettri's property. The pleadings does
not disclose their entitlement to the suit land. Therefore,
the first issue framed by the learned Civil Judge was
correctly answered against the plaintiffs by both the
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
learned Civil Judge as well as the learned First Appellate
Court by holding that the plaintiffs were not so entitled.
However, the declaration that the defendant was the owner
of the suit land by the learned First Appellate Court was
factually and legally incorrect. Such declaration could not
have been granted in favour of the defendant in a suit filed
by the plaintiffs when the defendant themselves had not
filed any counter claim or sought any prayer for such a
declaration.
30. The question of law framed by this Court is
answered in the affirmative. It is held that the learned First
Appellate Court misinterpreted and misconstrued the
meaning and intent of the documents exhibited in the case
and hence, wrongly declared the defendant as the owner of
the suit property, having title thereto. Consequently, the
declaration made by the First Appellate Court that the
defendant had title over the suit land based on the above
documents is set aside. However, the plaintiffs failed to
prove their case even by preponderance of probabilities and
therefore, the plaint was rightly rejected both by the
learned Civil Judge as well as by the First Appellate Court.
Shri Krishna Bahadur Chettri & Ors vs. Rameshwar Mandir Committee
The appeal is allowed to the above extent. The parties shall
bear their respective costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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