TASHI DAWA Vs. KESHARI PRADHAN

JUDGEMENT

(1.) The Appellant and the Respondents both lay claim to the suit property, the former by way of a Gift Deed, allegedly executed by the original owner of the property in his favour and the latter by claiming adverse possession, merely by virtue of having been in occupation of the premises allegedly for about seventy years and in the same breath by a contrary alternative claim of an oral gift made to them, in the year 1980, by the then Chogyal of Sikkim.

(2.) The Appellant/Plaintiff had filed a 'Suit for Eviction, Recovery of Possession and Mesne Profits', against the Respondents/Defendants before the Learned Trial Court, claiming that one Prince J. T. Namgyal had gifted him a portion of land bearing plot no.1227/1970, situated at Tibet Road, Gangtok, along with an old double storied wooden house, vide the 'Gift Deed', Exhibit 4, dtd. 19/11/1999, registered in the year 2000 and described accordingly in the Schedule to the Plaint. The Respondents were in possession of one portion of the upper storey of the wooden house as tenants. On registration of the Gift Deed, the Appellant requested the Respondents to vacate the premises to enable him to demolish the dilapidated structure and raise an RCC building for his bona fide use. That, as none of the Respondents were residing in the suit premises, they agreed to vacate by December, 2005 but failed to do so and thereby became trespassers on the property from 1/1/2006. The Appellant sought eviction of the Respondents from the suit premises, recovery of ? 81,000/- (Rupees eighty one thousand) only, as mesne profits from 1/1/2006 to 31/3/2008 @ ?3,000/-(Rupees three thousand) only, per month, mesne profits @ ? 3,000/-(Rupees three thousand) only, per month, from 1/4/2008 until final recovery, along with other reliefs.

(3.) Based on the pleadings of the parties, the Learned Trial Court settled four issues for determination and took up Issue No.1 first for consideration and determination viz;"Whether the Plaintiff is the owner of the suit property, if so, whether the suit property was legally registered and mutated in his name? (Onus on the Plaintiff)'. The Learned Trial Court discussed in detail the short-comings in Exhibit 4, the Gift Deed, allegedly issued by the Donor J. T. Namgyal to the Donee Appellant. Relying on Rule 10 of the 'Sikkim State Rules, Registration of Document Rules, 1930' (hereinafter, the 'Registration Rules, 1930'), the Court opined that the alterations and corrections in Exhibit 4 fell short of the requirement of Rule 10 of the Registration Rules, 1930, as erasures or alterations on the document must be attested by the parties to it with their signatures before acceptance for registration, which was not complied with in Exhibit 4. That, the TP Act which has been enforced in the State requires two attesting witnesses, however in the absence of express repeal of the Registration Rules, 1930, it cannot be said to be impliedly repealed. That, mere registration of Exhibit 4 would not make it valid, legal and proved, when there are clear violations and errors committed during its registration. That, the Appellant failed to examine witnesses to substantiate the fact of execution of Exhibit 4. The Appellant, besides examining himself, examined only one Nedup Pintso who did not have first hand knowledge of Exhibit 4, while another attesting witness Rinchen Bhutia had passed away, but no efforts were made to produce witnesses T. J. Namgyal and Kumar Chettri, the latter having appeared once in Court but the date stood deferred on account of his sudden ill-health and on the next date he was dropped as witness. The Appellant also did not produce the Registration Clerk, one Mohan Rai, who had processed the registration of Exhibit 4. It was next observed that Exhibit 4 only disclosed the plot number with no indication of the existence of a house thereon. That, Exhibit 5, the Mutation document mentioned that land measuring 2016 sq. ft situated at Gangtok had been mutated in the name of the Plaintiff with a tick mark appearing against 'vacant land' on the document with no reference to any wooden structure on it. Thus, it remained vague as to whether the wooden structure was gifted along with the land. The Learned Trial Court went on to observe that Exhibit 6 [collectively], which includes the spot Verification report of the Head Surveyor records the date of verification as 3/1/1999, whereas Exhibit 4 the alleged Gift Deed was presented for registration on 19/11/1999, indicating that the spot Verification preceded the execution of the Gift Deed. The Court was thus inclined to note that such discrepancies along with the non-production of the concerned attesting/registration witnesses, led to an adverse inference regarding the validity and legality of the registration process. That, as the Appellant had failed to prove execution and valid registration of Exhibit 4, he cannot be deemed to be the owner of the suit premises.