JANGPU SHERPA @ JAMPU SHERPA Vs. PHURBA LHAMU SHERPA

JUDGEMENT

(1.) The present Writ Petition assails the order dated 14.05.2015 passed by the Additional District Collector/Magistrate (Respondent No.2) directing the record of rights for plot no. 233/234 at Damthang Block (the said plots) to be corrected in the name of the Respondent No.1 after the expiry of three months from the date of the order. The Petitioner was granted the said three months to approach the appropriate forum for relief against the said order. Thereafter, a notice dated 18.03.2016 was issued to the Petitioner by the Respondent No.2. The notice stated that the Respondent No.1 had by a petition dated 02.03.2016 requested for mutation of the said plots in her name. Respondent No.2 issued the notice to the Petitioner requiring him to submit order from appropriate forum or else it was proposed that mutation process would be started from 31.03.2016 for the said plots. This notice dated 18.03.2016 is also impugned. Aggrieved thereby the Petitioner filed Title Suit No. 1 of 2016 before the Court of the Civil Judge, South Sikkim at Namchi. A counterclaim praying for declaration that the Respondent No.1 was the owner of the said plots had also been filed. However, on 31.08.2017 the suit was withdrawn with liberty to the parties to file afresh. Thereafter the present Writ Petition was filed by the Petitioner on the ground that question of title has to be decided by Civil Courts and not by Executive Magistrates. The Petitioner therefore prays for setting aside the impugned order dated 14.05.2015 and notice dated 18.03.2016. The above factual matrix is asserted in the Writ Petition.

(2.) The Respondent No.2 and the District Collector of the South District at Namchi (Respondent No.3) have jointly filed a counter-affidavit. The said counter-affidavit narrates the factual details of the passing of the order dated 14.05.2015 and notice dated 18.03.2016. It is stated that the Respondent No.1 filed a complaint to the Panchayat President and Member of 38-Damthang Gram Panchayat Unit (GPU), South Sikkim stating that the said plots were gifted to her as "Daijo" by one Norbu Sherpa on 07.05.1980 but the said "Daijo" land was subsequently registered in the name of the Petitioner. The Panchayat President and Members of 38 Damthang GPU vide letter dated 10.09.2013 forwarded the matter to the SubDivisional Magistrate, South Sikkim stating that the dispute between the parties could not be settled. On 12.09.2013 the complaint was registered as Misc Case No.5/13. The Respondent No.2 thereafter, directed the concerned Revenue Officer/Supervisor to verify the records of the said plots and submit a report as to how the said plots were mutated in the name of the Petitioner. On 25.10.2013 the Respondent No.2 received a report from the Revenue Inspector/Revenue Supervisor stating that the mutation records/file in favour of the Petitioner was not traceable. On verification it was found that the mutation of the said plots were carried out from Norbu Sherpa to Dawa Tshering Sherpa vide O.O. No. 373/AD(S) dated 11.03.1985 and thereafter it was mutated in favour of the Petitioner from Dawa Tshering Sherpa vide O.O. No.128/DC(S) dated 05.07.1993. However, the name of the Respondent No.1 was found recorded in the remarks column as having got "Daijo" in the computerised land record of the said plots. The Respondent No.2 thereafter issued summons to the Petitioner as well as the Respondent No.1 directing them to appear before him on 21.11.2013. During the proceedings it was found that the said plots were found mutated in the name of the Petitioner without the consent of the Respondent No.1. The counter-affidavit filed by the Respondent Nos.2 and 3 further states that the said plots "belong to Respondent No.1 since the same was received by her as "Daijo" from Norbu Sherpa in the year 1980 and it was wrongly mutated in the name of the Petitioner." It is averred that in order to ascertain the facts of the case two witnesses viz. Pema Ongchu Sherpa, resident of Damthang-W1 and Sriman Chettri, resident of Damthang-W2 were also examined. Pema Ongchu Sherpa stated on affidavit that in the year 1977 late Norbu Sherpa had gifted the said plots measuring approximately 5 acres to her adopted granddaughter i.e. the Respondent No.1. The said witness also deposed that in the year 1978 Dawa Tshering Sherpa made the Respondent No.1 her sister and gifted the said plots to her. Thereafter, she had settled in Dew, Namchi, South Sikkim. Sriman Chettri stated that she knew the Respondent No.1 who once resided in the land of Norbu Sherpa (Darey Bajey) and she had left the place twenty years ago.

(3.) The counter-affidavit of the Respondent Nos.2 and 3 also states that on 14.5.2015 three issues were framed as under: