PALDEN ONGCHU PAZO Vs. SONAM DOLKAR

JUDGEMENT

(1.) The Plaintiffs/Appellants herein impugn the Order dtd. 22/8/2022, in Title Suit No.13 of 2022, of the Court of Learned District Judge, Special Division ' II, Gangtok, Sikkim, by which the Learned Trial Court while deciding an application under Order XXXIX, Rules 1 and 2, read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter, the 'CPC'), filed by the Appellants vacated the Order of stay, dtd. 3/6/2022, inter alia on grounds that the Appellants had failed to make out a prima facie case.

(2.) Assailing the Order, Learned Senior Counsel for the Appellants canvassed the contention that the Respondent Nos.1 and 2 claim to have owned 3.90 acres of land of which 3.28 acres was acquired by the Government earlier in time. From the said 3.28 acres, the Government could not take possession of 5033 sq. ft of land as it was in the occupation of squatters. However, since the Government had acquired the land, although it was not paid for, it belongs to the Government, as the land was not re-acquired by the Respondent Nos.1 and 2, but the stance of the Respondent Nos.1 and 2 now is that 5033 sq. ft of land belongs to them. It is urged that, when admittedly the squatters continue to occupy the area measuring 5033 sq. ft, there is no question of the Respondent Nos.1 and 2 constructing on the said portion of land, thereby proving that the Respondent Nos.1 and 2 have encroached on the land of the Appellants and have constructed a building thereon. Learned Senior Counsel for the Appellants submits that a Document of 1934 establishes that the area on which the construction is being taken up by the Respondent Nos.1 and 2, in fact belongs to the Appellants. That, the said Document categorically mentions that the boundary of the land of the Appellants, on the east extends to 'Terso Bato leading to the Kothi of Libing Kazi from the Kothi of Bermoik Kazi'. That, accordingly, Schedule 'D" property described in the Plaint, is also the property of the Appellants, inasmuch as the eastern boundary of Schedule 'D" extends till Kazi Road, in terms of the said document. It is thus clear that the Respondent Nos.1 and 2 have encroached on the land of the Appellants on the eastern boundary, on a portion of Schedule 'D", as indicated in Annexure ' 2, at Page 11, of I.A. No.01 of 2023. Hence, the Appellants have a prima facie case in the matter, the balance of convenience and inconvenience is tilted in their favour and the Appellants shall suffer irreparable loss and injury if the impugned Order supra is not set aside.

(3.) Per contra, Learned Senior Counsel for the Respondent Nos.1 and 2 submits that in the first instance no urgency has been shown in the matter. That, the Appeal against the impugned Order has been filed belatedly, on which ground alone the Appeal deserves to be dismissed. That, in fact as per the Survey Operations of 1951-52, five plots of land were recorded in the name of 'Youthok Rani" being Plot Nos.1162, 1166, 1167, 1168 and 1169. That, Plot No.1169 upon which the building is being constructed belongs to 'Youthok Rani'. That, the Appellants for their part, have failed to produce any document to establish that Plot No.1169 was ever registered in their names or that of their ancestors. That, the Document of 1934, is a vague document which merits no consideration by any Court. That, in fact the five plots of land measures a total of 3.90 acres. Of the said 3.90 acres, 3.28 acres was acquired by the Government at the first instance, out of which only 3.16 acres was taken, leaving the Respondent Nos.1 and 2 with 0.335 acres of land (approximately 14,616 sq.ft). That, the disputed construction is within the area of 14,616 sq.ft and hence the Appellant has no prima facie case. That, as the Respondent Nos.1 and 2 have invested crores of rupees in the construction, the balance of convenience and inconvenience is tilted in their favour. Should the impugned Order not be upheld, the Respondent Nos.1 and 2 will also suffer irreparable loss and injuries. Hence, the Appeal being devoid of merit, be dismissed.