MOTILAL LAKHOTIA Vs. MEWANG TOBGYAL WANGCHUK TENZING NAMGYAL

JUDGEMENT

(1.) The defendants are in first appeal against the judgment and decree of the District Judge, Sikkim dated 26-2-1988, directing the demolition of constructions on the encroached portion of plot No. 1040 as shown in the plan annexed with the plaint and handling over its actual possession to the plaintiffs-respondents, demolition of the fly over bridge falling within plots Nos. 1013 and 1040 as shown in the aforesaid plan and also the removal of the entire structure therefrom keeping the passage free from any obstructions for the use of the plaintiffs and their tenants. The defendants were also injuncted from making any further construction whatsoever on the passage in plot No. 1013.

(2.) The suit giving rise to the appeal was originally brought by late Mewang Palden Thondup Namgyal, son of late Chogyal late Shri Tashi Namgyal. During the pendency of the suit, the original plaintiff died and the present plaintiff-respondents were substituted as his legal representatives. The case of the plaintiff as per the plaint may be summarised thus: Settlement plots Nos. 1013, 1014, 1040 (part) situated at Gangtok originally belonged to late Chgyal Sir Tashi Namgyal of Sikkim as his personal properties forming part of his private estate. After his death, the properties developed on the original plaintiff, Mewang Palden Thondup Namgyal, and after his death, the same passed on to the present plaintiffs, and they have all along been in peaceful and uniterrupted possession of the same. The original plaintiff constructed one pucca building on plot No. 1014 situated on the New Market Road, Gangtok, and let out the same to tenants. On the adjacent south of the said building, there is a private passage 12' wide made of steps belonging to the plaintiff and on the adjacent south thereof, there is another building known as Yuthok building on plot No. 1012. The aforesaid passage was constructed and maintained by the plaintiff. Behind the aforesaid two buildings, there is a passage running across the aforesaid 12' passage which is a private gully (plot No. 1013) and behind the said passage there are two wooden buildings used as kitchen, latrines and godwon, solely for the use of the tenants occupying the Naybazar building and Yuthok building. Settlement Plot No. 1040 (part) belonging to the plaintiff is situated on the west of the Naya Bazar Building and has all along been in peaceful possession of the plaintiff. There is a retaining wall on the west of the aforesaid plot of land which is the boundry between the land of the plaintiffs Private Estate and the land of the Denzong Cinema Ltd., defendant No.2 Defendant No. 1 is the Managing Director of Denzong Cinema Ltd., and is also connected with the defendant No. 3. Defendants started construction of a big pucca building for the purpose of a hotel on the land south of the plaintiff's aforesaid land and have illegally encroached upon a portion of the plaintiff's land measuring 6,600 Sq.ft., which falls on plot No. 1040. The defendants have also been illegally using the aforesaid 12' private passage for carrying building materials from the New Market road to the building site under construction after removing "No Thorough-fare" signboards posted on both ends of the said passage and cutting barbed wire fencing. The defendants also started constructing a fly over (bridge) over the aforesaid passage connecting New market road with the hotel building. On 18-1-1977 a notice was issued to defendant No. 1 through the lawyer of the Private Estate, requesting him not to use the aforesaid private passage and to stop unauthorised and illegal construction on the plaintiff's land. But, in spite of the receipt of the said notice, the defendants did not stop using the said passage or from construction of the building on the encroached portion of the plaintiff's land. On enquiry, the plaintiff learnt with respect to the land on which the hotel building was under construction that title had not passed to the defendants or any of them and the construction was wholly unauthorised and illegal. The plaintiff claimed a decree for possession of the alleged encroached portion of the land as shown in the enclosed plan by demolition, if required, of the construction made thereon and for permanent injunction restraining the defendants from using the aforesaid 12' wide passage or making any construction whatsoever on the same. There is no dispute that construction of the hotel building as also of the flyover is now complete.

(3.) Defendants Nos. 1 and 2 who are appellants Nos. 1 and 2 have filed a joint written statement wherein they have denied that there was anything like Private Estate or that the plaintiff was the absolute owner thereof. The existence of the pucca building and the flight of steps 12' wide is admitted. However, it is disputed that the said flight of steps is private belonging to the plaintiff and it is pleaded that it belongs exclusively to the Gangtok Municipality to serve as the exclusive passage to the plot on which defendant No. 2 Company was constructing a multi-storyed building to serve the Government interest of Tourism and also public utility purposes. These defendants have alleged that beyond the structures of the plaintiff stands a precipitated hilledge to form the eastern boundary of the defendants' land all through in their exclusive possession since the time of the Government allotment in or about the year 1958-59, beyond which the plaintiff has not an inch of land. It is further alleged that in or about the year 1961, the construction of the defendants' cinema and the ground floor of the hotel building was made after due sanction of the plan and the said land and building are in possession and control of defendant No. 2 for which due rents and revenue have all along been paid to the government by the former. It is denied that defendant No. 1 is in any way connected with defendant No. 3. The suit is pleaded to be barred by misjoinder of defendant No. 3 and cause of action. It is further pleaded that defendant No. 2 is entitled to use the flight of steps and is the absolute owner of the land on which the hotel has been constructed by virtue of allotment made by the government and plans having been duly sanctioned by the Municipal Corporation.