Sikkim High Court
Ongdi Sherpa vs Nim Temba Sherpa And Ors on 25 September, 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. 04 of 2024
Shri Ongdi Sherpa,
S/o Late Nima Sangay Sherpa,
R/o Dentam Bazar,
West Sikkim-737113.
..... Appellant
Versus
1. Shri Nim Temba Sherpa,
S/o Late Nima Ongdi Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
2. Shri Passang Namgyal Sherpa,
S/o Late Nima Ongdi Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
3. Shri Passang Norbu Sherpa,
S/o Late Nima Ongdi Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
4. Shri Sangay Sherpa,
S/o Dawa Temba Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
5. Shri Lakpa Sherpa,
S/o Nim Temba Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
6. Shri Mingma Gyalshen Sherpa,
S/o Dawa Temba Sherpa,
R/o Lower Shanku Busty,
West Sikkim-737113.
..... Respondents
2
R.S.A. No. 04 of 2024
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
Appeal filed under Section 100 of the Code of Civil
Procedure, 1908.
Appeal against Order dated 31.10.2023 passed by the learned District
Judge, Gyalshing, Sikkim in Title Appeal No.03 of 2023, Ongdi
Sherpa vs. Nim Temba Sherpa & Ors.
Appearance:
Mr. Karma Thinlay, Senior Advocate with Mr. Yashir
N. Tamang and Mr. Zamyang Norbu Bhutia,
Advocates for the Appellant.
Ms. Gita Bista, Advocate (Legal Aid Counsel),
Ms. Pratikcha Gurung and Mr. Dipendra Chettri,
Advocates for Respondents.
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Date of Hearing : 11.09.2025
Date of Judgment : 25.09.2025
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Ongdi Sherpa-the appellant (the plaintiff) having
suffered two judgments against him by the Trial Court as
well as the Appellate Court has sought to question the
verdicts once again. The solitary substantial question of law
framed by this Court in the present regular second appeal
is:
"Whether the learned First Appellate Court by ignoring
material evidence given by Court Witness No.1, Surja
Maya Sunwar, endorsed the finding of the Learned
Trial Court?"
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
2. The above question arose since in the opinion of the
learned Trial Judge the question of possession of the suit
property was a crucial issue raised by the plaintiff as well
as the defendants.
Facts
3. Title Suit No. 02 of 2021 (the suit) was filed by Ongdi
Sherpa-the appellant (the plaintiff) who was a resident of
Dentam Bazar, West Sikkim against six respondents (the
defendants) who were residents of Sankhu Block, West
Sikkim. Nim Temba Sherpa (D.1/D.W.1), Passang Namgyal
Sherpa (D.2) and Passang Norbu Sherpa (D.3) were the
sons of late Nima Ongdi Sherpa and arrayed as defendant
nos. 1, 2 and 3 respectively. Sangay Sherpa (D.4) and
Mingma Gyaltsen Sherpa (D.5/D.W.2) were sons of Dawa
Temba Sherpa who were arrayed as defendant nos. 4 and 5
respectively. Lakpa Sherpa (D.6) son of Nim Temba Sherpa
(D.1/D.W.1) was defendant no.6.
4. The suit was for declaration that the plaintiff is lawful
and bonafide owner of the suit property i.e. land bearing
plot no.747 and 752 measuring about 0.0620 and 0.0980
square feet situated at Dentam, West Sikkim. The suit also
sought for permanent injunction restraining the defendants
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
from interfering in peaceful possession, user and
enjoyment of the plaintiff and transferring or alienating the
suit property to anyone in any manner whatsoever.
5. In the plaint the plaintiff claimed ownership based on
"parcha khatiyan" issued to him in the year 2009 and
thereafter a computerised "parcha" in the year 2019. It was
the plaintiff's case that his father late Nima Sangay Sherpa
became the owner of the suit property after a partition
during the 1950-52 land survey operation between the four
natural sons of late Phul Dachi Sherpa. Besides the
averments regarding the plaintiff's ownership he also
asserted:
"6. It is pertinent to mention that since last 20
years, the suit property is looked after by
„Kuthia‟, who was authorised by the above-
named plaintiff."
6. The plaintiff asserted that on 03.12.2019, 17.10.2020,
11.12.2020 and 15.07.2021 the defendants' trespassed into
the suit property.
7. The defendants in their joint written statement stated
that they were related to the plaintiff. The defendants
claimed that late Nima Ongdi Sherpa was the absolute
owner of the certain landed properties at Sankhu Block,
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
West Sikkim during 1950-52. Plaintiff's father late Nima
Sangay Sherpa did not have any landed properties at
Sankhu Block, West Sikkim. Plaintiff and his family
members somehow recorded the suit property in the name
of late Nima Sangay Sherpa which actually and righfully
belonged to late Nima Ongdi Sherpa. The defendants
alleged that this was done during the second survey
operation of 1977-1982 and the "parcha khatiyan" (exhibit-
2) relied upon by the plaintiff was prepared without the
knowledge of the defendants.
8. The defendants' case was that the suit property was in
the absolute possession of late Nima Ongdi Sherpa during
his lifetime and later after his death in continued
possession of the defendants who had employed and kept a
"kutiadar" namely late Gambhir Man Sunar to look after
the suit properties. Late Gambhir Man Sunar used to look
after the property and reside in a house constructed
therein. Late Gambhir Man Sunar was "kutiadar" for
almost 14 years till 2020 under the defendants.
9. The defendants alleged that on 14.10.2020 the
plaintiff trespassed into the suit property cut trees, other
vegetation and cardamom plants and the total amount of
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
cardamom destroyed was to the extent of around 120 kg
valued at Rs.75000/-. The defendants complained to the
panchayats of lower Sankhu Ward on 16.10.2020 and
since the panchayat could not settle the matter, on their
suggestion, the defendants approached the Dentam Police
Station on 18.10.2020 with a complaint. The Station House
Officer (SHO) of Dentam Police Station suggested that both
the plaintiff and defendants should not enter the suit
property until the matter is settled. On 01.10.2021 the
defendants filed a Right to Information (RTI) application at
the District Administrative Centre at Gyalshing regarding
mutation and registration of suit property. The Office of the
District Collectorate as well as the Sub-Divisional
Magistrate vide replies dated 18.10.20201 and 11.10.2021
stated that they had no records of transfer and mutation of
the landed properties in the name of late Nima Sangay
Sherpa.
Issues
10. The learned Trial Court framed six issues:
(i) Whether the suit is maintainable?
(ii) Whether the suit property belonged to late Phul
Dachi Sherpa or late Nima Ongdi Sherpa?
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
(iii) Whether the suit property was partitioned in
favour of late Nima Sangay Sherpa?
(iv) Whether the suit property was wrongly mutated
from the name of late Nima Ongdi Sherpa to the
name of late Nima Sangay Sherpa?
(v) Whether late Nima Sangay Sherpa and his
descendants and the plaintiff are in possession
of the suit property or whether late Nima Ongdi
Sherpa and his descendants and the defendants
are in possession of the suit property?
(vi) Whether the reliefs claimed can be granted?
Plaintiffs' witnesses
11. The plaintiff examined himself (P.W.1), Phurba
Sherpa (P.W.2), Pemchodar Sherpa (P.W.3) and Amber
Gurung (P.W.4). Ongdi Sherpa (P.W.1) exhibited the
original computerised "parcha khatiyan" of 2019 (exhibit-
1), photo copy of "parcha khatiyan" dated 1978 in the name
of late Nima Sangay (exhibit-2) and photo copy of "parcha
khatiyan" dated 2009 in the name of late Nima Sangay
(exhibit-3).
12. The plaintiff claimed to be absolute owner of the suit
property lawfully inherited from his father-late Nima
Sangay Sherpa who had in turn inherited from his father-
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
late Phul Dachi Sherpa. The plaintiff claimed that the suit
property was earlier recorded in the name of his father-late
Nima Sangay Sherpa and thereafter, in his name in the
year 2019. The plaintiff stated that he had verbally
authorised the family of late Gambir Man Sunar to reside
in the suit property as "kutia". It was the plaintiff's case
that the family members of late Nima Ongdi Sherpa have
inherited vast portions of land from him and that the
defendants have since 2019 started claiming the suit
property and trespassed into it. During his cross-
examination he admitted that on 14.10.2020 he had
entered into the suit property and uprooted the cardamom
plantation and trees. He also admitted that the defendants
had on 16.10.2020 complained to the panchayat and on
18.10.2020 to the Dentam Police Station about it. He also
admitted that at the time of issuance of the computerised
"parcha khatiyan" of 2019 (exhibit-1) in his name he did
not call the defendants. The plaintiff admitted that the suit
property may have been in the name of late Nima Ongdi
Sherpa prior to 1978 as the property was still not
partitioned.
13. Phurba Sherpa (P.W.2) deposed that he was the
plaintiff's cousin. His grandfather-late Phul Dachi Sherpa
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
had eight children out of which four were daughters. His
father and the plaintiff's father were co-owners of landed
property along the boundary of the suit property. His
paternal uncle-late Nima Ongdi Sherpa never claimed the
suit property as his during his life time. During cross-
examination he admitted that late Gambir Man Sunar used
to stay in the suit property; he had a temporary shelter
earlier and now a house therein. He also admitted that he
did not know whether late Gambir Man Sunar made the
house on the consent of the defendants.
14. Pem Choder Sherpa (P.W.3) deposed that he is
plaintiff's younger brother; he used to know the "kutia"
whose family were living at the suit property at present. His
name was Nawley Kami. In the year 1992 Nawley Kami
approached him to allow him to occupy the suit property
and he had verbally permitted them to stay there. After the
death of their father in the year 2000, the landed properties
recorded in his name were divided among the sons and the
suit property was given to the plaintiff. He admitted during
cross-examination that late Gambir Man Sunar had
constructed a house and the suit property in 2019 and that
permission to do so was not given by them. He also
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
admitted that permission to construct a house was given by
the defendants.
15. Amber Gurung (P.W.4) claimed that the 1952 survey
was the base survey for Sikkim however; it is no longer
relevant and according to a notification issued in the year
1984 the old land records of 1951 ceased to be in
operation. According to him the land "parcha" is now
issued in computerised format based on the 1977 survey.
Defendants' witnesses
16. The defendants examined Nim Temba Sherpa
(D.1/D.W.1), Mingma Gyaltsen Sherpa (D.5/D.W.2), Daya
Ram Sharma (D.W.3), Dirga Singh Chettri (D.W.4) and
Danu Sherpa (D.W.5).
17. Nim Temba Sherpa (D.1/D.W.1) deposed that Nima
Ongdi Sherpa was the absolute owner of the certain landed
properties at Sankhu Block, West Sikkim during 1950-52
survey operations and the father of the plaintiff-late Nima
Sangay Sherpa did not have any landed properties in his
name during that time. Late Nima Ongdi Sherpa was the
absolute owner of the landed properties at Sankhu Block
during the survey operation of 1977-82 and the plaintiff
and his family members some how managed to record the
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
suit property in the name of late Nima Sangay Sherpa. This
was done without consultation with the defendants. The
suit property was in the possession of the defendants who
had kept a "kutiadar" late Gambir Man Sunar to look after
it. Late Gambir Man Sunar and his family members resided
in the suit property for almost 14 years till 2020 under the
defendants who had planted huge number of cardamom
plants and trees therein. On 14.10.2020 the plaintiff
trespassed inside the suit property, cut trees, other
vegetation and cardamom plants. The total value of 120 kg
of cardamom plant destroyed by the plaintiff was
Rs.75000/-. He also deposed about complaining to the
Panchayat on 16.10.2020 and thereafter to the Dentam
Police Station on 18.10.2020. He deposed that late Nima
Ongdi Sherpa and the defendants were never aware that
the plaintiff and his family members had procured the
"parcha" in the name of late Nima Sangay Sherpa and
thereafter in his name. During cross-examination he
admitted having gone to the Sub-Divisional Magistrate after
the suit property was encroached. He also admitted that he
did not know whether his grandfather-late Phul Dachi
Sherpa owned any immovable properties. Although he had
alleged that plaintiff and his family members had somehow
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
transferred the suit property to their names he had not
produced any evidence to show fraudulent transfer.
18. Mingma Gyaltshen Sherpa (D.5/D.W.2) and Danu
Sherpa (D.W.5) also reiterated the evidence of Nim Temba
Sherpa (D.1/D.W.1). Nothing substantial was elicitated
from Mingma Gyaltshen Sherpa (D.5/D.W.2) and Danu
Sherpa (D.W.5) during their cross-examination.
19. Daya Ram Sharma (D.W.3) and Dirga Singh Chettri
(D.W.4) knew both the plaintiff and the defendants as they
were co-villagers. They deposed that the suit property was
in the absolute possession of late Nima Ongdi Sherpa and
around 50/50-55 years ago they had worked as a cultivator
in the suit property employed by late Nima Ongdi Sherpa.
20. The defendants exhibited original "parcha khatiyan"
in the name of late Nima Ongdi Sherpa (exhibit-B), original
revenue receipt dated 02.05.1951 in the name of late Nima
Wangdi Sherpa (exhibit-C), original revenue receipt dated
27.11.44 in the name of late Nima Ongdi Sherpa (exhibit-
D), original no objection certificate issued by Nim Temba
Sherpa (D.1/D.W.1) for issuance of income certificate to
Gambhir Man Sunar (exhibit-E), attested copy of income
certificate in the name of Gambhir Man Sunar (exhibit-F),
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
certified copy of reply of RTI dated 11.10.2021 given by
Sub-Divisional Magistrate, Dentam (exhibit-G), certified
copy of reply of RTI dated 18.10.2021 given by Sub-
Divisional Magistrate, Gyalshing (exhibit-H), certified copy
of complaint to Dentam Police dated 18.10.2020 (exhibit-I),
original receipt dated 11.11.2021 issued by Computer
Zone, Gyalshing (exhibit-J).
21. Surja Maya Sunar (C.W.1) was examined in terms of
order 16 Rule 14 of the Civil Procedure Code, 1908 as a
court witness as the learned Trial Court opined on
27.03.2023 (the day fixed for judgment ) that "very little"
evidence had come on the issue as to who is in possession;
the "kutiadar" in the suit property is deceased and survived
by his wife Suraj Maya Sunar; the issue of possession is
essential in the just decision of this case; and therefore, it
was necessary to summon Suraj Maya Sunar as witness as
she is in a position to give evidence with respect to
possession. This Court shall examine the evidence of the
court witness-Surja Maya Sunar later.
22. Before seeking to answer the substantial question of
law framed it may be important to understand the
relationship of the parties to the present suit and some of
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
the witnesses. A genealogical chart herein below is
prepared with the aid of the pleadings of the parties and
depositions of the witnesses:
Late Phul Dachi Sherpa
Dawa Tshering Cherkim 4 daughters Late Nima Ongdi
Phurba Late Nima Sangay
(P.W.2)
Dawa Nim Passang Passang
Temba Temba Namgyal Norbu
(D.1/D.W.1) (D.2) (D.3)
Ongdi (Plaintiff/P.W.1) Pem Choder (P.W.3) Lakpa (D.6.)
Danu (D.W.5)
Binod
Sangey Mingma Gyaltshen
(D.4) (D.5/D.W.2))
23. The learned Trial Court rejected the suit. It was held
that the suit was barred by limitation and the principles of
acquiescence and as such not maintainable. It was
therefore, held that the relief claimed by the plaintiff could
not be granted. The learned Trial Court found that the
defendants were in fact in possession of the property. It
was held that the suit property originally belonged to late
Phul Dachi and was recorded in the name of late Nima
Ongdi Sherpa. The learned Trial Court also held that
probably the family properties were divided and the suit
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
property was inherited by late Nima Sangay Sherpa the
father of the plaintiff. It was found that the suit property
was inherited by late Nima Sangay Sherpa after division of
family properties. However, late Nima Ongdi Sherpa and
the defendants continued in possession. As the dispute was
raised by the plaintiff recently, the learned Trial Court was
of the opinion that it could only mean that the suit property
was not meant to be given in the share of the plaintiff's
father but the same was done in the mutation records due
to lack of knowledge of boundaries and plots.
24. The plaintiff therefore, preferred Title Appeal Case
No.3 of 2023 before the learned District Judge who re-
examined all the issues and agreeing with the findings of
the learned Trial Court dismissed the appeal.
25. The learned Appellate Court examined the evidence of
Surja Maya Sunar. The learned Appellate Court noticed the
contradictory statement made by Surja Maya Sunar. Surja
Maya Sunar deposed that she has been residing in the field
of the plaintiff, paying "kut" to him, and had constructed
their house with the permission from him. The learned
Appellate Court also noticed that Surja Maya Sunar
thereafter deposed that Nima Ongdi Sherpa brother of the
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
plaintiff was the owner of the suit property. it was also
noticed that during her cross examination Surja Maya
Sunar admitted that the present house was built only six
years ago but the previous old house was built on the
permission given by Nim Temba Sherpa (D.1/D.W.1) and
when they had first come to the suit land 20 years ago they
had approached Nim Temba Sherpa (D.1/D.W.1) who
consulted his brothers and allowed them to stay. It was
noticed that Surja Maya Sunar also admitted that presently
she was residing at a different land under the plaintiff
which is not the disputed land. The learned Appellate Court
on close scrutiny opined that "Ongdi Sherpa" referred to by
her in fact was the plaintiff on whose property (not the suit
property) she was residing recently and prior to that she
was residing in the suit property. The learned Appellate
Court therefore, came to a finding that the learned Trial
Court was right to hold that the defendants were in
possession of the suit property.
Ownership of the suit property
26. The plaintiff's claim of owership of the suit property
was not based on any title deed. The plaintiff could not
prove partition of the suit property as asserted by him in
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
the plaint. The plaintiff's claim of ownership was therefore
through "parcha khatiyan" which is a record of rights and
not title deed. The plaintiff had relied upon photo copy of
"parcha khatiyan" of 1978 in the name of late Nima Sangay
Sherpa son of Phurba Sherpa (exhibit-2). This "parcha
khatiyan", if correct, would have been issued under the
now repealed Record Writing or Kotha Purnu or Dru-Deb
and Attestation Rules, for Sikkim State, 1951 (the 1951
Rules). According to the 1951 Rules entries in the "khasra"
were to be made as required under Rule 8 thereof. A copy
called "parcha" was to be issued to the "bustiwala" and
"khatiyan" for office use under Rule 15 thereof. Therefore,
the "parcha khatiyan" (exhibit-2) exhibited by the plaintiff
with the permission of the learned Trial Court was not the
original "parcha khatiyan" issued to late Nima Sangay
Sherpa. The plaintiff was the son of late Nima Sangay
Sherpa who sought to rely upon the photo copy of the
"parcha" (exhibit-2) issued to his father. The plaintiff did
not explain why he did not have the original "parcha
khatiyan" (exhibit-2) or how he should be allowed to rely
upon and exhibit photo copy of the "parcha khatiyan"
(exhibit-2). Secondary evidence as defined in section 63 of
the Indian Evidence Act, 1872 can be given only in the
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
circumstances specified in section 65 thereof. The
reasoning given by the learned Trial Court for accepting the
photo copy of the "parcha khatiyan" (exhibit-2) was flawed.
The learned Trial Court failed to notice that the original
"parcha khatiyan" is issued to the person in whose name it
is recorded. Therefore, if the photo copy of the "parcha
khatiyan" (exhibit-2) was in the name of the late Nima
Sangay Sherpa the plaintiff ought to have explained why he
did not have the original as he claimed to be late Nima
Sangay Sherpa's son.
27. The photo copy of "parcha khatiyan" dated
20.03.2009 (exhibit-3) in the name of late Nima Sangay
Sherpa son of late Phul Dachi Sherpa exhibited by the
plaintiff with the permission of the learned Trial Court was
also incorrectly accepted as evidence for similar reasons as
the "parcha khatiyan" (exhibit-2) except that the "parcha
khatiyan" (exhibit-3), if correct, would have been prepared
under the now existing-the Sikkim Record Writing and
Attestation Rules, 1988 which repealed the 1951 Rules.
28. The computerised Record of Rights (exhibit-1) dated
29.09.2019 was exhibited in the original by the plaintiff. It
records "khasra" no.747 having an area of 0.0620 hectares
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
and "khasra" no.752 having an area of 0.0980 hectares in
the name of the plaintiff. These plots constitute the suit
property. The defendants did not establish better title to the
suit property except exhibiting "bustiwala ko khatiyan"
(exhibit-B) in the name of Nima Ongdi Sherpa, revenue
receipt dated 02.05.1951 of Nima Wangdi Sherpa of Village
Sankhu Dentam (exhibit-C), revenue receipt in the name of
Nima Wangdi Sherpa dated 27.11.1944, NOC dated
17.07.2010 issued by Nim Temba Sherpa (D.1/D.W.1) in
favour of late Gambir Man Sunar (exhibit-E), attested copy
of income certificate issued by the Government of Sikkim in
favour of late Gambir Man Sunar dated 29.07.2010
(exhibit-F). None of these documents could prove
conclusively anything contrary to what is stated in the
computersied Record of Rights (exhibit-1) in the name of
the plaintiff although the defendants asserted and
substantially proved that they were in possession of the
suit property. In that view of the matter it may be true that
the "bustiwala ko khatiyan" (exhibit-B) exhibited by the
defendants would pertain to the suit property as well.
However, the defendants failed to prove that. Under section
35 of the Indian Evidence Act, 1879 an entry in any public
or other official book, register or record or any electronic
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
record, stating a fact in issue or relevant fact, and made by
a public servant in the discharge of his official duty, or by
any other person in performance of a duty specially
enjoined by the law of the country in which such book,
register, or record or an electronic record is kept, is itself a
relevant fact. It is noticed that the computerised record of
rights (exhibit-1) was prepared on 29.09.2019 and the suit
was filed on 21.08.2021. Therefore, the computerised
record of rights (exhibit-1) made ante litem motam can be
relied upon safely when such document is admissible
under section 35. In the facts of the present case, on
examination of the evidence led by the parties the plaintiff
has been able to permit the court to presume that he may
have been the owner of the suit property unless proved
otherwise by better title.
29. The defendants in their written statement asserted
that late Nima Ongdi Sherpa was the absolute owner of the
certain landed properties at Sankhu Block, West Sikkim
during the survey operation of 1950-52. The "bustiwala ko
khatiyan" (exhibit-B) exhibited by the defendants does
reflect that late Nima Ongdi Sherpa son of Phu Dorjee did
own certain landed properties as mentioned therein. The
"bustiwala ko khatiyan" (exhibit-B) does not clearly reflect
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
when these entries were made although the form of
"bustiwala ko khatiyan" (exhibit-B) records the date
22.11.1961. The "bustiwala ko khatiyan" (exhibit-B) relates
to certain properties in Lading and lavartar of Sankhu
Block, Yangyang, Namchi, West Sikkim. The defendants
however, could not establish that the suit property was
part of the landed properties owned by late Nima Ongdi
Sherpa as reflected in the "bustiwala ko khatiyan" (exhibit-
B).
30. The defendants' assertion that they were in
possession of the suit property however seems correct. The
defendants asserted that they had planted huge number of
cardamom plants and trees in the suit property and further
that on 14.10.2022 the plaintiff tresspassed inside the suit
property and cut the trees, vegetation and cardamom
plants. The plaintiff admitted these facts during his cross
examination.
31. That brings us to the substantial question of law
framed by this Court on the relevance of the court witness-
Surja Maya Sunar. Before we examine the deposition of the
court witness it is important to appreciate the
circumstance under which she was called as a court
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
witness. The plaintiff had pleaded that the suit property
had been looked after by a "kuthia"authorised by him.
However, he neither named the "kuthia" nor did he name
his wife. The defendants in their joint written statement
however categorically asserted that they were in absolute
possession of the suit property and had employed late
Gambir Man Sunar as their "kuthia". Surja Maya Sunar
appeared as a witness in the list of witnesses of the
defendants. In the plaintiff's evidence-on-affidavit filed
after the joint written statement of the defendants he
named the "kuthia" as late Gambir Man Sunar but did not
state that his wife Surja Maya Sunar continued to stay in
the suit property. However, Surja Maya Sunar was not
examined by the defendants. From the deposition of Surja
Maya Sunar it is clear that at the time of her deposition in
court she was not a resident of the suit property. Surja
Maya Sunar also admits that the plaintiff had visited her
three days ago and his son Binod Sherpa had also called
her on telephone. The deposition of Surja Maya Sunar
does not inspire great confidence. In the same breath Surja
Maya Sunar claims that both the plaintiff and father of the
defendant nos.1 to 3 i.e. late Nima Ongdi Sherpa as the
owner of the suit property. Surja Maya Sunar also deposes
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
that her previous house was built after permission was
given by Nim Temba Sherpa (D.1/D.W.1) and it was he who
they had approached twenty years ago and who had
allowed them to stay in the suit property in consultation
with his brother. The evidence of the court witness-Surja
Maya Sunar must be read with caution and it may not be
correct to depend solely on her deposition regarding the
material fact in issue before this Court or else her
confusion who she should side with may put the truth on
slippery grounds. This Court is thus of the view that the
learned Appellate Court has not ignored the deposition of
the court witness-Surja Maya Sunar but has cautiously
examined it along with the other evidence on record.
Possession
32. It is noticed that the plaintiff had only vaguely
asserted possession in paragraph 6 of the plaint by stating
that since last 20 years the suit property was looked after
by a "Kuthia" who was authorised by the plaintiff. The
plaintiff did not list the "Kuthia" as a witness nor was he
named. In his evidence-on-affidavit the plaintiff did not
even assert what he had stated in paragraph 6 of the
plaint. The plaintiff deposed that he had verbally
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
authorised the family of late Gambir Man Sunar to reside
at the suit property as "Kuthia". This was not what he had
pleaded in the plaint.
33. During his cross examination the plaintiff admitted
that he knew Suraj (sic) Maya Sunar who is the wife of late
Gambir Man Sunar; that on 14.10.2020 he entered into the
suit property and uprooted cardamom plantations and
trees; he explained that he did this based on his right as
the property was mutated in his father's name and
therefter in his name; that the defendants had complained
to the panchayat about it on 16.10.2020 and on
18.10.2020 a general diary was lodged by the defendants
against him in Dentam Police Station where the police
inspector told them not to enter the suit property until the
matter is resolved; that the defendants had been claiming
the suit properties to be their's before the panchayat and
the Police Station; that there was no sale deed or any
transfer deed between late Nima Ongdi Sherpa and late
Nima Sangay Sherpa; that when he took out the
computerised "parcha" in his name he did not call the
defendants; that he had not filed any documents showing
the properties of late Nima Ongdi Sherpa and the
defendants; that he had not made Dawa Tshering Sherpa
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
son of late Dachi Sherpa, the four daughters of late Dachi
Sherpa and their children parties to the suit; the suit
property may have been in the name of late Nima Ongdi
Sherpa prior to 1978 as it had still not been partitioned.
34. It is settled law that one who asserts must prove it.
The claim of possession made by the plaintiff, although
vaguely, in the plaint could not be proved by him. The
plaintiff himself gave no evidence to that effect in his
examination in chief. Phurba Sherpa (P.W.2) and
Pemchodor Sherpa (P.W.3)-the plaintiff's witnesses also did
not claim that the plaintiff had possession of the suit
property. The plaintiff did not produce any evidence of
possession of the suit property. The plaintiff's admission
during his cross-examination that on 14.10.2020 he had
entered into the property and uprooted cardamom
plantation and trees is an admission that in fact he was not
in possession of the suit property. Plaintiff did not assert
about planting cardamom in the suit property. The
defendants categorically stated that they had planted the
cardamom in the suit property. Quite clearly the plaintiff
was not in either actual or constructive possession of the
suit property.
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
35. It is settled law that when a cloud is raised over the
plaintiff's title and he does not have possession, a suit for
declaration and possession, with or without a
consequential injunction, is the remedy. Even when the
plaintiff title is not in dispute or under a cloud, but he is
out of possession, he has to sue for possession with the
consequential injunction. It is also well settled that where
the title of plaintiff is under a cloud or in dispute and he is
not in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for
declaration, possession and injunction. (see Anathula
Sudhakar vs. P. Buchi Reddy1).
36. The plaintiff had filed the title suit under section 34 of
the Specific Relief Act, 1963. Although he sought a
declaration of ownership and permanent injunction he did
not seek possession of the suit property to allow him to
enjoy the declaration, if granted. The plaintiff could not
prove possession and from the evidence on record it reflects
that the plaintiff had no idea who was in actual possession
of the suit property. Therefore, it was imperative for the
plaintiff to have sought for a further relief to take back
1 (2008) 4 SCC 594
Shri. Ongdi Sherpa vs. Shri Nim Temba Sherpa & Ors.
possession of the suit property which he failed to do. In
terms of the proviso to section 34 of the Specific Relief Act,
1963 the Court is estopped from granting the declaration of
ownership due to the plaintiff's failure to seek the
consequential relief. The plaint therefore, must fail as not
being maintainable.
37. The appeal is dismissed. The trial court records may
be returned forthwith.
( Bhaskar Raj Pradhan )
Judge
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