[Cites 5, Cited by 0]

Sikkim High Court

Bharat Sanchar Nigam Limited ... vs Sashidhar Nepal on 28 November, 2025

Author: Meenakshi Madan Rai

Bench: Meenakshi Madan Rai

             THE HIGH COURT OF SIKKIM : GANGTOK
                                   (Civil Appellate Jurisdiction)
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     SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                         RFA No.01 of 2022
    Appellants                   :       Bharat Sanchar Nigam Limited (BSNL) and Others

                                                 versus
    Respondent                   :           Sashidhar Nepal

                       Appeal under Order XLI Rules 1 and 2
                        of the Code of Civil Procedure, 1908
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          Appearance
              Mr. Sajal Sharma, Advocate for the Appellants.
              Mr. Manish Kumar Jain, Advocate for the Respondent.
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                        Date of Hearing                :                  06-11-2025
                        Judgment reserved              :                  06-11-2025
                        Judgment pronounced & uploaded :                  28-11-2025
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                                         JUDGMENT

Meenakshi Madan Rai, J.

1. The short question for consideration in the instant

Appeal is;

"Whether the Appellants/Defendants have encroached on the land of the Respondent/Plaintiff bearing plot no.728, measuring an area of 0.0140 hectares as described in Schedule B to the Plaint and constructed buildings and telecom towers thereon."

2. The Appellants were the Defendants before the Trial

Court, while the Respondent was the Plaintiff. The parties shall

hereinafter be referred to by their litigative status during trial.

3. The Plaintiff filed a suit for declaration, injunction,

recovery of possession and other consequential reliefs before the

Court of the District Judge, East Sikkim, at Gangtok, averring that

he is the owner of a plot of land, bearing no.728, registered in his

name and measuring an area of 0.0140 hectares, under Kambal

block, East Sikkim. The Defendants in the year 1988 started

BSNL and Others vs. Sashidhar Nepal

construction of their towers on an adjacent plot of land. During

such process, they encroached upon a portion of the Schedule B

land described hereinabove. Proceedings were initiated before the

concerned authority of the District Collectorate by the Plaintiff and

field verification of the land was carried out in the presence of the

officers of the Defendants Company. The area Amin (Revenue

Supervisor) who had conducted the inspection in the presence of

both parties concluded that, the Defendants had indeed encroached

upon the land of the Plaintiff. Nevertheless, as no settlement could

be arrived at before the revenue authorities, the Plaintiff

approached the Lok Adalat, Gangtok, East Sikkim. The matter

remained unresolved before the Lok Adalat, upon which the

Plaintiff filed the aforestated Suit before the Court of the District

Judge, East Sikkim, at Gangtok, with the following prayers in the

Plaint

"(i) Removal of the illegal structure, building and towers from the land of the Petitioner.

(ii) Pay compensation of Rs.10,00,000/- towards illegal occupation.

(iii) Pay compensation of Rs.5,00,000/- towards harassment and mental tension.

(iv) Pay compensation of ₹ 5,00,000/- towards depreciation of the valuation of land.

(v) Handing over the peaceful and unencumbered possession of the land (Schedule-B) to the Plaintiff.

(vi) A permanent injunction restraining the:

(a) Defendants from putting any cables, lines, etc upon and in the land and in the towers, houses.

                       (b)      Or debarring the Defendants from making any
                                renovation      or      improvement         over   the   said
                                schedule land.
               (vii)   Costs of proceedings;

(viii) Any other relief or reliefs as this Hon‟ble Court may deem fit and proper in the interest of justice."

BSNL and Others vs. Sashidhar Nepal

4. The Defendants denied and disputed the claims of the

Plaintiff and averred that, in the year 1986 the company had

purchased plot No.727(P) from one Devi Bhakta Guragai who

handed over vacant and peaceful possession of the land to them in

the presence of the Assistant Land Record Officer. Although, the

prevailing local laws prevented the Company from registering and

mutating the land in their name, however the towers were

constructed within the land purchased by them with no

encroachment on the land of the Plaintiff. The grievance of the

Plaintiff in fact arose from an apprehension of the hazardous effects

of the mobile towers constructed close to his residence and was not

on account of any encroachment. That, the Defendants had

promised to compensate the Plaintiff which later was not

necessitated as the construction did not extend beyond the

property purchased by them.

5. The Trial Court settled the following issues for

determination;

(1) Whether the Defendants have encroached the plot of land belonging to the Plaintiff, if so to what extend (sic. extent)? (Onus on both the parties) (2) Whether the Defendants have constructed any illegal structures/towers on the encroached land? (Onus on the Plaintiff) (3) Whether the Plaintiff is entitled for peaceful and unencumbered possession of the land from the illegal occupation of the Defendants? (Onus on the Plaintiff) (4) Whether the Plaintiff is entitled for peaceful, vacant land, clear from all structures and towers? (Onus on the Plaintiff) (5) Whether the suit of the Plaintiff is barred by law of estoppels, acquiescence and waivers? (Onus on the Defendants) (6) Whether the Plaintiff is entitled for relief or reliefs as claimed by him in his Plaint? (Onus on the Plaintiff)

BSNL and Others vs. Sashidhar Nepal

6. In support of his case the Plaintiff examined himself

and six other witnesses viz.; his son Parshuram Nepal, Tekchand

Balmiki, William Tamang, Robin Prasad Sewa, Sonam Choejee

Lachenpa and Nakul Rai. The Defendants on the other hand

examined Dinesh Kumar Upadhyaya and Tenzing Dorjee.

(i) The Trial Court on consideration of the evidence

furnished by both parties, including the documentary evidence,

opined in issue no.1 that, the Defendants Company had

encroached upon the land of the Plaintiff being plot no.728,

measuring an area of 0.0140 hectares and that any construction

made by the Defendants is liable to be dismantled, demolished and

removed from the Plaintiff‟s land and peaceful and vacant

possession handed over to him. In issue no.2 it was observed

that, the survey report placed on record indicated that the

Defendants had constructed structures and towers on the land of

the Plaintiff. In issue no.3 it was found that there was

encroachment on the land of the Plaintiff, consequently the Plaintiff

was entitled to peaceful and encumbered possession of the land.

In issue no.4 the same conclusion as issue no.3 was arrived at. In

issue no.5 it was found that the Plaintiff had not waived his rights

nor was he barred by the principles of estoppel and acquiescence.

In issue no.6 the Court concluded that, the Plaintiff had

successfully established his case. Consequently, the Defendants

were directed to remove all illegal structures/building/towers from

the land of the Plaintiff and hand over to him peaceful and vacant

possession. The Defendants were ordered to pay the Plaintiff a

sum of ₹ 10,00,000/- (Rupees ten lakhs) only, as compensation for

illegal encroachment and occupation since 2012. The Defendants

BSNL and Others vs. Sashidhar Nepal

were also directed to pay a sum of ₹ 2,00,000/- (Rupees two

lakhs) only, as compensation towards harassment and mental

torture meted out by the Defendants to the Plaintiff.

7. Learned Counsel for the Defendants (the Appellants

herein), advanced the argument that the Plaint suffered from lack

of specificity and that the Trial Court could not have decreed the

suit in favour of the Plaintiff on the basis of vague and uncertain

pleadings and evidence. The Plaintiff failed to file the deed of

conveyance to establish title. The exact details of the boundaries

and extent of encroachment are unclear. Relying on the decisions

in P. Kishore Kumar vs. Vittal K. Patkar1 and M.T.W. Tenzing Namgyal

and Others vs. Motilal Lakhotia and Others , it was urged that it is

now settled law that entries in revenue records do not prove title.

The evidence of the son of the Plaintiff, Parsuram Nepal, is that the

mobile towers are not standing on the entire area of plot no.728,

PW Tekchand Balmiki, too deposed that the building of BSNL was

standing partially upon plot no.728, but failed to mention the exact

area of the land encroached. PW William Tamang in his evidence,

did not mention about the encroachment, while PW Sonam Choejee

Lachenpa testified that, certain portion of the building fell on the

land of the Defendants. The evidence of PW Nakul Rai points to

Ext-U which does not seem to be a joint inspection report as a joint

inspection report is signed by the parties and the concerned

surveyor, whereas Ext-U was only signed by the surveyor. The

evidence of DW Tenzing Dorjee indicates that, the complaint was

against installation of towers by the Defendants and he submitted a

report to the effect that the land on which the towers were

2023 SCC OnLine SC 1483

(2003) 5 SCC 1

BSNL and Others vs. Sashidhar Nepal

constructed were purchased by the Department of Post and

Telegraph in the year 1981-82 but the Defendants did not mutate

or register the land in their name. The dispute stemmed from the

hazardous effects of the towers and was not a land dispute. That,

the Plaintiff has to prove his own case and cannot rely on the

weakness of the Defendants case as held by the Supreme Court in

Union of India and Others vs. Vasavi Cooperative Housing Society

Limited and Others . The Plaintiff has not exhibited a single

document from the year 2000 till 2012 complaining of

encroachment on his land by the Defendants. Before the Lok

Adalat there was no question of encroachment and there is no

prayer for declaration and possession in the Plaint. Relying on

Anathula Sudhakar vs. P. Bucchi Reddy (dead) by LRS. and Others , it

was urged that the Plaintiff must necessarily file a suit for

"declaration" if there is a cloud over title. It was next urged that

the suit is barred by limitation as the building was constructed in

the year 1988 and the period of limitation is three years from the

date when the cause of action first arose. The Trial Court order for

payment of compensation was without any averments in the Plaint

and the amount of compensation is unjustified. Hence, the Appeal

be allowed and the Judgment and Decree of the Trial Court be set

aside.

8. Learned Counsel for the Respondent for his part

submitted that no grounds arise for setting aside the impugned

Judgment as the necessary evidence furnished by the Plaintiff has

been given due consideration and the Suit decreed. No evidence

was furnished by the Defendants to disprove the case of

(2014) 2 SCC 269

(2008) 4 SCC 594

BSNL and Others vs. Sashidhar Nepal

encroachment, whereas the Plaintiff has by furnishing relevant

documents established his case of title and possession. Hence, the

impugned Judgment be upheld and the Appeal be dismissed.

9. Having given due consideration to the facts and

circumstances placed before this Court, perused the pleadings and

the evidence on record as also the impugned Judgment, in the first

instance, it is worthwhile noticing that there was no requirement

for settling six issues for determination. All that is in dispute are;

whether the Defendants had encroached upon the land of the

Plaintiff and constructed structures upon it. Whether the Plaintiff

had established his ownership over the property in dispute and

finally whether the Plaintiff was entitled to the reliefs claimed. It is

also noticed that in issue no.1, the onus was fixed on both parties.

The onus for proving an issue cannot be on both parties. The

burden of proof rests before evidence is gone into, upon the party,

asserting the affirmative of the issue. To simplify it, the burden of

proof in the sense of establishing a case is on a party, be he the

Plaintiff or the Defendant, who substantially asserts the affirmative

of the issue.

(i) Be that as it may, the evidence on record furnished by

the Plaintiff in the first instance reveals that, he claims to be the

owner of the Schedule B land, described in the Plaint, upon which

he alleges that the Defendants have constructed some structures

including mobile towers. The argument of Learned Counsel for the

Appellants was that the deed of conveyance was not furnished by

the Plaintiff to fortify his case and that the documents of title i.e.,

parcha khatiyan do not suffice to establish title as held in a

plethora of Judgments of the Supreme Court. It is worth

BSNL and Others vs. Sashidhar Nepal

remarking that it is not the case of the Defendants that they did

not have an opportunity of cross-examining the Plaintiff on the

points agitated in the arguments (supra). On perusal of the cross-

examination of the Plaintiff by the Defendants it is clear that no

cross-examination on that count was in fact carried out. The

Plaintiff asserted that the schedule of the property mentioned in

the Plaint is correct and that the Defendants had taken possession

of his land between the years 2000-2010. None of the other

witnesses of the Plaintiff were also cross-examined with regard to

the deed of conveyance of the Plaintiff. In his evidence the Plaintiff

is categorical in his statement that, he relies upon the documents,

reports, maps and note sheets filed by the office of the District

Collectorate, which reveals that plot no.728 is recorded in his name

and the portion of the area measuring 0.0140 hectares has been

encroached by the Defendants. Ext-1 the parcha khatiyan

indicates that the property in dispute is recorded in the name of

the Plaintiff. In the absence of any documentary evidence to the

contrary or contradictory verbal evidence furnished by the

Defendants or cross-examination to demolish the Plaintiff‟s case,

these documents are presumed to be correct, having been issued

by a Government authority and having remained undecimated

under cross-examination. The witness of the Plaintiff, PW

Tekchand Balmiki, working as a revenue supervisor under the Land

Revenue and Disaster Management Department, deposed that he

went to conduct the joint inspection of plot no.728, on 09-12-2019.

As per this witness, after verification of the records, it was found

that, plot no.728 measuring an area of 0.0140 hectares stood

recorded in the name of Sashidhar Nepal (the Plaintiff) under

BSNL and Others vs. Sashidhar Nepal

Kambal block, East Sikkim. He found that, there was

encroachment on the land of the Plaintiff by the BSNL Telecom, the

Defendants, by constructing a building and two small towers on it.

Under cross-examination, he admitted that on 09-12-2019, only he

and the Plaintiff were present, there was no court commissioner

but he could recollect that the BSNL building was standing partially

on plot no.728 and partially on their own land. PW William Tamang

was appointed as Advocate Commissioner and went to inspect plot

no.728 on 13-12-2019. He was accompanied by the revenue

surveyor, PW Sonam Chojee Lachenpa and one representative of

the Defendants Company S.S. Dora (DGM, BSNL). Inspection was

completed and a verification report prepared at the spot, where the

signatures of the representatives of the Plaintiff, the Defendants

and the surveyor were obtained on the said report, which he

claimed was Ext-Z. On such inspection, the revenue surveyor

opined that there was encroachment upon the land of the Plaintiff

by the Defendants. Indeed, as pointed out by Learned Counsel for

the Appellants, it is true that the said witness has not recorded

anything about the encroachment in Ext-Z, but the fact that the

witness upon such inspection opined that, there was encroachment

upon the land of the Plaintiff, by the Defendants, was not

decimated during his cross-examination. PW Robin Prasad Sewa,

was the Sub-Divisional Magistrate, at the time when the dispute

arose, he supported the evidence of the previous witness

pertaining to encroachment of the Plaintiff‟s land by the Defendants

and deposed that, as per the joint inspection report, dated 09-12-

2019, the representatives of the Defendants, BSNL were absent,

however it was found that plot no.728, with an area of 0.0140

BSNL and Others vs. Sashidhar Nepal

hectares, was recorded in the name of Sashidhar Nepal of Kambal

Block and that there was encroachment by BSNL Telecom by

constructing a building and two small mobile towers. The witness

thus concluded that there was encroachment as claimed by the

Plaintiff.

(ii) PW Sonam Choejee Lachenpa, an official under the

Land Revenue and Disaster Management Department, Government

of Sikkim, lent credence to the case of the Plaintiff by stating that

on 13-12-2019, he along with the son of the Plaintiff, officials from

the BSNL office and the Commissioner, inspected the site. As per

the records maintained in their office, plot no.728 measuring a

total area of 0.0140 hectares was shown to be recorded in the

name of the Plaintiff. During their inspection of the site, it was

found that, BSNL had encroached upon the entire land of plot

no.728 on which they had constructed buildings and had also

erected mobile towers. He placed reliance on Ext-U, the report

prepared by him after the site inspection and on Ext-V, the map

prepared by him on such site inspection. It was his further

evidence that he had signed on Ext-Z, the compliance report,

prepared by PW William Tamang. His entire testimony pertaining

to encroachment of the land of the Plaintiff, by the Defendants, has

not been decimated in cross-examination. He clarified under cross-

examination that the Defendants have their land adjacent to Plot

no.728, where a certain portion of the building belonging to the

BSNL stands. PW Nakul Rai, another official working under the

Land Revenue and Disaster Management Department, Government

of Sikkim, identified Ext-2 as the map issued in the name of the

Plaintiff for plot no.728 and Ext-1 as parcha khatiyan recorded in

BSNL and Others vs. Sashidhar Nepal

the name of the Plaintiff. He was aware of the inspection reports

and the finding that the Defendants had encroached on the land of

the Plaintiff. A prolix cross-examination could not demolish the

evidence in chief of this witness pertaining to the encroachment

described above. The evidence of the son of the Plaintiff also

supported the Plaintiff‟s case with regard to encroachment of

scheduled property by the Defendants. Although under cross-

examination it came to be extracted from him that the building

constructed by the Defendants does not cover the entire area of

plot no.728. Having thus perused the evidence of the Plaintiff, his

son and the other independent witnesses being officials of the

District Collectorate, it emerges therefrom that the schedule

property was entered into by the Defendants and encroached upon

by construction of towers. The evidence of PW Sonam Choejee

Lachenpa, who conducted the inspection, specifies that the entire

plot being plot no.728 was encroached by the Defendants.

(iii) To support their case, the Defendants examined DW

Tenzing Dorjee, Additional District Collector, then posted as Block

Development Officer, in 2012. According to him, during the year

2012, on the direction of the District Collector, East, a public

hearing and enquiry was conducted with regard to a complaint

against installation of BSNL towers wherein three members of the

Samdung Kambal Gram Panchayat Unit along with representatives

of the BSNL i.e., General Manager and the SDO (T) and one SDE

were present before him. Admittedly, the land was purchased by

the Defendants from Devi Bhakta Guragai which continues to

remain registered in the sellers name and he still pays the land

BSNL and Others vs. Sashidhar Nepal

rent. His evidence as can be gauged was of no assistance to the

Defendants case.

(iv) The evidence of DW Dinesh Kumar Upadhyay put forth

the case of the Defendants as averred in their Written Statement

and he admitted that no documents pertaining to sale, lease or any

other transaction was filed by the Defendants. His evidence on

affidavit at Paragraph 11 reflected that a revenue officer from the

Land Revenue and Disaster Management Department had

categorically deposed that the cadastral map of the „Defendants‟

Company is genuine and further clarified that cadastral map is

issued under the signatures of three officers from their office. On

careful perusal of the evidence of the Plaintiff‟s witnesses it is

apparent that no such statement has been made by any of the said

witnesses. PW Sonam Choejee Lachenpa has merely stated that

the department used a cadastral map, which is the official

government records and they also used off-set scale method he

has not stated that the cadastral map is of the Defendants. It has

erroneously been stated in the evidence of DW Dinesh Kumar

Upadhyay that the local commissioner did not support the case of

the Plaintiff, when it is clearly evident from the deposition of the

Plaintiff‟s witnesses already discussed hereinabove, that, they have

testified that there was encroachment on the land of the Plaintiff.

The cross-examination of the Defendants witness established that

they had not filed any sale deed document, lease deed document

or any other document to indicate that the Defendants had

purchased plot no.730(P) from Devi Bhakta Guragai. The witness

also admitted that no mention of payment for the purchase, to the

said seller, has been made in his evidence on affidavit. He

BSNL and Others vs. Sashidhar Nepal

admitted under cross-examination that, the cadastral map Ext-C

does not mention the name of BSNL on it and it is a rough sketch

map pertaining to plot no.730(P) land which belongs to Devi

Bhakta Guragai. His statement also evidently lends no succour to

the case of the Defendants.

(v) It was argued by Learned Counsel for the Appellants

that the case of the Plaintiff was on the basis of vague and

uncertain pleadings and evidence, to the contrary, in my

considered view there is no ambiguity in the averments or prayers

in the Plaint and the plot of land has been identified by the Plaintiff

and his witnesses by way of documentary and verbal evidence. It

is true that the boundaries of the land have not been mentioned in

the Plaint, however it is also noticed that the Defendants have not

raised any objection to the non-mentioning of the boundaries in

their Written Statement nor resorted to cross-examination on this

point, hence this shortcoming cannot be raised belatedly at the

time of Appeal. In this context, we may beneficially turn to the

ratio in Sham Lal alias Kuldip vs. Sanjeev Kumar and Others5, where

the Supreme Court observed as follows;

"21. One of the documents relied upon by the learned District Judge in coming to the conclusion that the plaintiff is the son of the deceased Balak Ram is Ext. P-2, the school leaving certificate. The learned District Judge, while dealing with this document has observed:

"On the other hand, there is a public document in the shape of school leaving certificate, Ext. P-2 issued by Head Master, Government Primary School, Jabal Jamrot recording Kuldip Chand alias Sham Lal to be the son of Shri Balak Ram. In the said public document as such Kuldip Chand alias Sham Lal was recorded as son of Shri Balak Ram."

The findings of the learned District Judge holding Ext. P-2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection

(2009) 12 SCC 454

BSNL and Others vs. Sashidhar Nepal

was raised by them when such document was tendered and received in evidence.

22. It has been held in Dasondha Singh v.

Zalam Singh [(1997) 1 PLR 735 (P&H)] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit."

[emphasis supplied]

(vi) It was also urged that the Trial Court in the impugned

Judgment had stated that the land of the Plaintiff was encroached

but the extent of the encroachment is not identified. In this

context relevant reference may be made to the evidence of PW

Sonam Choejee Lachenpa the Plaintiff‟s witness who has

categorically stated that "............. During our inspection of the site

it was found that there was encroachment by BSNL. However, as

per verification, the BSNL has encroached the entire plot pertaining

to Plot No.728 on which they have constructed a building and also

have erected mobile towers. ............"

In his cross-examination he has deposed as follows;

"............ It is not a fact that the BSNL has not encroached the entire Plot No.728. It is true that BSNL also have their land adjacent to Plot No.728. It is not a fact that more than half portion of the building belonging to the BSNL does not fall/stand upon Plot No.728. It is true that certain portion of the said building belonging to the BSNL also fall/stand upon their own land .........."

Every other witness of the Plaintiff has also given categorical

evidence to establish that there was encroachment by the

Defendants on the land of the Plaintiff. As PW Sonam Choejee

Lachenpa was the one who conducted the inspection, his evidence

has been cited specifically above. The Defendants witnesses failed

to disprove the assertion of encroachment.

(vii) The Plaintiff is required to prove his case adhering to

the standard of preponderance of probabilities and not beyond

reasonable doubt which is the bar set for criminal cases. The

BSNL and Others vs. Sashidhar Nepal

evidence furnished by the Plaintiff establishes that he is the owner

of plot no.728 as detailed in Schedule B to the Plaint. The

documentary evidence furnished by him supports this, the absence

of deed of conveyance does not demolish the Plaintiff‟s case as his

ownership over the property has not been contradicted by any

other documentary evidence or evidence of witnesses. Ext-V as

already discussed hereinabove relied on by Defendants only

pertains to the land of Devi Bhakta Guragai and does not support

the Defendants case of non-encroachment. The question of

limitation has also been raised only at the stage of Appeal and in

my considered view cannot be taken up at the Appellate stage. In

any event the suit is not barred by limitation as the encroachment

is said to have occurred in the year 2010-2012 and the suit was

filed in the year 2018 well within the period of limitation. The

arguments raised by Learned Counsel for the Defendants

pertaining to recovery of possession as observed above is a

frivolous argument as prayer (v) to the Plaint already extracted

hereinabove is revelatory of the fact that the Plaintiff had indeed

sought "recovery of suit land".

10. Consequently, for the foregoing reasons, the Appeal is

dismissed and disposed of.

11. The Defendants shall hand over peaceful and vacant

possession of the entire plot no.728 measuring an area of 0.0140

hectares to the Plaintiff by March 31, 2026.

12. However, the orders for payment of compensation of ₹

10,00,000/- (Rupees ten lakhs) only, towards illegal encroachment

and occupation by the Defendants and payment of compensation of

₹ 2,00,000/- (Rupees two lakhs) only, towards harassment and

BSNL and Others vs. Sashidhar Nepal

mental torture meted out to the Plaintiff due to the act of the

Defendants are set aside in totality.

13. Copy of this Judgment be transmitted to the Learned

Trial Court forthwith along with its records.

14. Pending applications, if any, also stand disposed of.

( Meenakshi Madan Rai ) Judge 28-11-2025

Approved for reporting : Yes

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