Bishnu Maya Chettri v. Govind Prasad Pradhan & Ors.

Judgment

#1. In this Second Appeal, the following substantial questions of law have been formulated for determination; (i) Whether the Suit was barred by the Law of Limitation and the Trial Courts have read more into Article 65 of the Limitation Act, 1963, than provided? (ii) Whether the Learned First Appellate Court could decide the issues as per Order XLI Rule 33 of the Code of Civil Procedure, 1908? (iii) Whether Plaintiffs could have obtained a Decree without proving their actual case?

#2. The Respondent Nos.1 and 2 herein were the Plaintiffs before the Learned Trial Court and Appellants before the Learned First Appellate Court. The Appellants herein were Defendant Nos.1 RSA No.01 of 2019 2 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others and 2 before the Learned Trial Court and Respondent Nos.1 and 2 in the Learned First Appellate Court. The State-Respondent Nos.3 to 7 were Defendants Nos.3 to 7 before the Learned Trial Court and Respondents in the same order before the Learned First Appellate Court. The original Respondent No.2 having passed away in the interregnum; is represented by his wife and son Respondent Nos.2A and 2B who shall for convenience be referred to collectively as Respondent No.2.

#3. In order to gauge the matter in its correct perspective, it is necessary to briefly restate what the suit entails. The Respondent No.1 and Respondent No.2 sons of one Late Nar Bahadur Pradhan, resident of Kerabari, Sang Khola, East Sikkim, as Plaintiffs, filed a suit for declaration, recovery of possession, cancellation of documents, injunction and other reliefs against the two Appellants and the State-Respondent Nos.3 to 7 before the Learned Trial Court. They claimed that Schedule ‘A’ lands described in the Plaint were recorded in the name of their father during the Old Survey Operations of 1950-52, which he enjoyed as the absolute owner. Schedule ‘B’ lands are said to be the plots of land recorded in the names of the Respondent Nos.1 and 2 post

#2004. Schedule ‘C’ lands comprising of two plots bearing Nos.1836 and 1801 are said to be lands illegally recorded in the name of Respondent No.5, the Secretary, Energy and Power Department, Government of Sikkim and Schedule ‘D’ lands is the area said to be illegally allotted to the Appellants by the Respondent No.5 from Plot No.1836 and is a part of Schedule ‘C’ land. The father of the Respondent Nos.1 and 2 passed away in 1990 without partitioning the property, thus in 2004, both of them initiated steps for RSA No.01 of 2019 3 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others mutation of the Schedule ‘A’ properties in their individual names at which time they learned that Plot No.1011 of the Old Survey Operations (allegedly new Plot No.1812 as per Survey Operations of 1978-79) and Plot No.1029/1178 of the Old Survey Operations (allegedly new No.1836 as per Survey Operations of 1978-79), which belonged to their late father had been illegally recorded in the name of the Respondent No.5. The Respondent Nos.1 and 2 accordingly filed an application, Exhibit 5, under the Right to Information (RTI) Act, 2005, before the State Public Information Officer (SPIO) of the Respondent No.4 Department, on 04-08-

#2010. The application was responded to by the SPIO (Additional District Collector) of the Respondent No.6 Department vide Exhibit 6, which revealed that their father had never alienated the suit properties to the Respondent No.5 by way of sale, neither was any compensation ever paid to him. Despite this circumstance, a Lease Deed, Exhibit 7, was executed on 26-10-2009 by the Respondent No.5 in favour of the Appellants alienating a portion of land from plot bearing No.1836, for a period of 99 years, on payment. Hence, the following prayers in the Plaint;

“a. A decree declaring that plaintiffs are the absolute owner of Schedule-‘A’ properties by way of inheritance. b. A decree declaring that the defendant no.5 has no right, title and authority over Schedule-‘C’ land. c. A decree declaring that the record of right pertaining to Schedule-‘C’ land in the name of defendant no.5 is illegal and the same is liable to be declared null and void and cancelled. d. A decree declaring that defendant no.5 has no right, title and authority to execute lease deed with respect to Schedule-‘D’ property which is part and partial of Schedule-‘C’ property.(sic, parcel). e. A decree declaring execution of lese (sic) deed in favour of defendant no.1 by defendant no.5 is illegal, null and void and liable to be cancelled. RSA No.01 of 2019 4 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others f. A decree declaring the defendant no.1 cannot acquire right, title and interest over Schedule- ‘D’ property by way of lease deed executed by defendant no.5. g. A decree declaring that lease deed executed by defendant no.5 in favour of defendant no.1 be cancelled. h. A decree declaring defendant no.1 and /or defendant no.1 and 2 have illegally entered into the Schedule-‘D’ property illegally constructing the house in the Schedule-‘D’ by demolishing existing structure. i. An injunction restraining the defendant no.1 and 2 from continuing the construction in the Schedule-‘D’ land. j. An ad-interim ex-parte injunction restraining the defendant no.1 and / or defendant no.1 and 2 from continuing the construction in the Schedule –‘D’ land in terms of (i) above. k. A decree for recovery of possession of Schedule-‘D’ property be passed in favour of the plaintiffs after demolishing the on going construction. l. A decree declaring that the defendant no.5 and/ or each of the defendants have no right, title and interest over the property and they may be evicted from the Schedule-‘C’ property. m. A decree for correction of record of right be passed in favor of the plaintiffs deleting the the defendant no.5 names of Schedule-‘C’ property. defendant n. A decree for permanent perpetual injunction restraining the defendant no.5 and /or each of construction or changing the nature and the character of the Schedule-‘C’ and Schedule-‘D’ property by their agents, representatives in terms of prayer (i) above. o. A decree for costs of the suit; p. Any other relief or reliefs for which the plaintiffs raising are entitled to.” 4(i). The Appellants as Defendant Nos.1 and 2 filed their Written Statement averring that, the Plaintiffs/Respondent Nos.1 and 2 are not entitled to the reliefs as the suit is misconceived and not tenable in law or facts as the Appellants had adhered to the terms and conditions laid down by the Respondent No.5 in the Lease Deed. (ii) State-Respondent Nos.3, 4, 6 and 7 had no Written Statements to file. RSA No.01 of 2019 5 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

#5. Respondent No.5 disputing the claims of Respondent Nos.1 and 2 averred in its Written Statement that Late Nar Bahadur Pradhan fact sold out Plot No.1011 and Plot Nos.1029/1178 to the Respondent No.5 Department during 1962- 64, the Department during that period having purchased several other plots of land in and around the suit land for construction of the “Jali Hydel Project”. Pursuant thereto, the Plots were recorded in the name of the Respondent No.5 as its absolute owner. On correction of the old survey records of 1950-51, the new survey records of 1976-83 reveal that the Respondent No.5 is the absolute owner of the Schedule ‘C’ properties upon which residential staff quarters were constructed in the early 1980s, during the life time of Nar Bahadur Pradhan to which he raised no objection, as the transaction was legal. Now, the Respondent Nos.1 and 2 cannot utilise the fact of non-availability of records pertaining to the purchase executed several decades ago, to their advantage. On 26-10-2009 on the request of Appellant No.1 the Lease Deed (Exhibit 7) was executed in her favour but her request dated 16- 09-2010 for additional allotment of land, was rejected by Respondent No.5. That, the Respondent No.5 is not answerable to the Respondent Nos.1 and 2 so far as the Lease Deed is concerned. The suit being malafide be dismissed.

#6. The Learned Trial Court on 03-06-2015 settled nine Issues for determination. 7(i). Issue No.2 was taken up first for discussion and decision viz; 2. Whether the defendant No.5 has acquired the suit property from the father of the Plaintiffs at any point of time? RSA No.01 of 2019 6 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others The Learned Trial Court concluded that Respondent No.5 had failed to prove that it acquired or purchased the suit property from the father of the Respondent Nos.1 and 2. The Issue was accordingly decided against the Respondent No.5. (ii) Issue Nos.3 and 5 were taken up together;

#3. Whether the defendant No.5 has any right, title and interest over Schedule “C” and “D” properties?

#5. Whether the Plaintiffs are the absolute owner of Schedule “C” and “D” properties being the legal heirs and descendants of Late Nar Bdr. Pradhan? In Issue No.3, it was held that the Respondent No.5 had possessory right and interest flowing from such possession over the suit property. In Issue No.5, it was observed that the Respondent Nos.1 and 2 failed to prove that Plot Nos.1801, 1836 or for that matter Plot No.1812 are the corresponding Plots alleged to be 1011 and 1029/1178, hence the Respondent Nos.1 and 2 are not the absolute owners of the suit properties. (iii) Issue Nos.4 and 6 were taken up together;

#4. Whether the defendant No.5 has authority to allot schedule “D” property in favour of defendant No.1?

#6. Whether the lease deed dated:26.10.2009 is a void document and is liable to be cancelled? It was found that none of the parties were able to establish their title over the property, and the possessory right of the Respondent No.5 did not lend it the authority to lease out the suit property, unless authorised to do so by the owner of the property. Thus, Issue No.4 was decided against the Respondent No.5. Issue No.6, was also decided against Respondent No.5 with the reasoning that Exhibit 7 is a void Lease Deed as it fails to comply with Article 299 of the Constitution of India. (iv) Issue Nos.7 and 8 were considered together; RSA No.01 of 2019 7 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

#7. Whether the defendant No.1 has been allotted with schedule “D” property by defendant No.5 by executing a Registered Lease Deed?

#8. Whether defendant No.1 is possessing the schedule “D” property legally? It was found that the Lease Deed (Exhibit 7) was admittedly a registered document. Hence, the allotment to the Appellant No.1 was made by way of a registered document. In Issue No.8, it was held that the Lease Deed (Exhibit 7) is void hence no legality can be drawn on its basis. That, possession of the leased portion by Appellant No.1 is not disputed and the possession is through the permission of Respondent No.5, therefore, it cannot be said to be illegal except against the true owners. Hence, the Issue was decided in favour of the Appellant No.1. (v) In Issue No.1;

#1. Whether the present suit is maintainable and whether the same is barred by limitation? It came to be decided that the Suit is not barred by limitation but that Respondent Nos.1 and 2 had failed to establish title over the suit property and therefore had no locus standi in the suit, which was thus not maintainable. (vi) In Issue No.9;

#9. To what relief or reliefs parties are entitled? It was held that the Respondent Nos.1 and 2 were not entitled to the reliefs sought. That, Respondent No.5 had a possessory right over the said properties which however did not give them authority to lease it out to the Appellant No.1. 8(i). Aggrieved thereof, the Respondent Nos.1 and 2/Plaintiffs were before the Learned First Appellate Court in Title Appeal No.01 of 2017 (Govind Prasad Pradhan and Another vs. Bishnu RSA No.01 of 2019 8 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others Maya Chettri and Others) as Appellants, assailing the said Judgment of the Learned Trial Court. (ii) The Learned First Appellate Court took up Issue No.2 first and agreed with the findings of the Learned Trial Court. In Issue No.3, in contradiction to the findings of the Learned Trial Court, it was concluded that Respondent No.5 had no possessory right having failed to prove the means of transfer of the suit land to them and thereby it could not have leased out the disputed property to the Appellant No.1. Without going into the specifics of Issue No.5 the Learned First Appellate Court concluded that “admittedly” it was the case of Respondent Nos.1 and 2 that Schedule ‘C’ property covered by Plot Nos.1812 and 1836 is the corresponding Plot Nos.1011 and 1029/1178 and decided this Issue in favour of the Respondent Nos.1 and 2. (iii) In Issue Nos.4 and 6 it was observed that as the Respondent Nos.1 and 2 did not press these issues, thus the findings of the Learned Trial Court brooked no interference. (iv) In Issue Nos.7 and 8 reversing the findings of the Learned Trial Court it was observed that when Respondent No.5 had no authority to lease out the suit property and when the Lease Deed document (Exhibit 7), itself was void ab initio, the allotment of Schedule ‘D’ property by the Respondent No.5 in favour of the Appellant No.1 by executing a registered Lease Deed had no sanctity being an invalid deed. (v) In Issue No.1 the finding of the Learned Trial Court on limitation was concurred with, the Learned First Appellate Court having reasoned that the limitation period started from the date of knowledge and in the case at hand the Respondent Nos.1 and 2 RSA No.01 of 2019 9 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others first came to learn of the relevant facts in the year 2004, hence the limitation fell within the ambit of Article 65 of the Limitation Act,

#1963. However, with regard to the maintainability of the suit it was concluded that in view of the findings and the decision arrived at while dealing with Issue Nos.2, 4 and 6, the suit of the Respondent Nos.1 and 2/Plaintiffs is maintainable, consequently the finding of the Learned Trial Court on this count was set aside. (vi) On Issue No.9, it was concluded that the Suit of the Respondent No.1 and 2 deserves to be decreed in terms of the Prayers made in the Plaint, the Prayers (i), (j) and (o) were however disallowed, the said prayers are extracted below for convenient reading; “The plaintiffs therefore pray for the following reliefs: ………………………………………………………… i. An injunction restraining the defendant no.1 and 2 from continuing the construction in the Schedule-‘D’ land. j. An ad-interim ex-parte injunction restraining the defendant no.1 and / or defendant no.1 and 2 from continuing the construction in the Schedule –‘D’ land in terms of (i) above. ………………………………………………………… o. A decree for costs of the suit; …………………………………………………………” It was further observed that the Respondent Nos.1 and 2 neither filed any Counter-Claim nor Cross-Appeal. The Appeal was thus allowed and the Judgment and Decree of the Learned Trial Court was set aside in its entirety despite the Learned First Appellate Court being in agreement with the Learned Trial Court on Issue Nos.2, 4, 6 and part of Issue No.1 i.e., on the point of limitation.

#9. Dissatisfied, the Appellant Nos.1 and 2 are before this Court. According to Learned Senior Counsel Shri N. Rai for the RSA No.01 of 2019 10 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others Appellants, the Learned Trial Court had reached a finding in Issue Nos.1, 3 and 5 that the suit property was not that of the Respondent Nos.1 and 2. However, the Learned First Appellate Court interfered with the findings of the Learned Trial Court and concluded that, on the failure of the Respondent No.5 to furnish proof of acquisition or purchase of the suit property, the claim of possessory rights of the Respondent No.5 has no weight in the eyes of law. It was contended that the Court erred in holding so as the Respondent Nos.1 and 2 are required to rely on the strength of their own case and not on the weakness of the Appellants case or that of State-Respondent Nos.3 to 7. The Respondent Nos.1 and 2 failed to establish their claim over the suit properties and their case is built on the foundation of the response of Respondent No.6 to their RTI query, which cannot be the basis of their claim. That, Plot No.1836 measuring an area of 0.274 hectares is found recorded in the name of the Respondent No.5, the Secretary, Energy and Power Department, Government of Sikkim during the 1976-83 Survey Operations and no information has been provided by the Respondent Nos.1 and 2 as to how Plot No.1836 was earlier Plot No.1011 or Plot No.1029/1178 was the new Plot No.1801, considering that the measurements of the alleged old and new plots do not corroborate with each other. Besides, the Suit is barred by limitation, the Respondent No.5 having acquired the property in 1963-64 from late Nar Bahadur Pradhan, who passed away in 1990, while the partition took place in 2004. Thus, limitation begins to run from 1963-64 and cannot be computed from 2004, the year of partition of properties. That, the Learned Courts below considered Article 65 of the Limitation Act, 1963, RSA No.01 of 2019 11 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others (hereinafter, the “Limitation Act”), in reaching their decision that the suit is not barred by limitation, however, the correct provision to be invoked is Article 58 of the Limitation Act, which deals with obtaining declaration where the period of limitation prescribed is three years from the time the right to sue first accrues. That, recovery of possession of the suit property and cancellation of documents are all subsequent prayers to the primary prayer for declaration of title, hence application of Article 65 of the Limitation Act is erroneous. Consequently, the suit is barred by limitation even if it is construed to be from the year 2004. The Learned First Appellate Court was under a misconception that limitation would begin to run from the “date of knowledge” sans such prescription in Article 65 of the Limitation Act. Limitation commences from the date on which Respondent Nos.1 and 2 were entitled to approach the Court for relief. Reliance was placed on Bhavnagar Municipality vs. Union of India and Another1. That, the claim of the Appellants and that of Respondent Nos.1 and 2 are on the same footing both being without documents of title, nevertheless the Appellants have a stronger claim in view of the fact that Respondent No.5 who allotted them Schedule ‘D’ lands was in possession of the disputed property from around the year 1963 onwards. To drive home this point the ratio in Shri K.B. Bhandari vs. Shri Laxuman Limboo and Another2 was referred to, besides, the Respondent Nos.1 and 2 were not even in possession of the suit property nor were they in possession of documents to substantiate their claim that their father had not sold the suit property to Respondent No.5. Hence, the Appeal be allowed. 1 AIR 1990 SC 717 2 SLR (2017) SIKKIM 41 RSA No.01 of 2019 12 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

#10. Learned Additional Advocate General Shri Sudesh Joshi advancing his submissions for the State-Respondent Nos.3 to 7, admitted that, there were no Written Statements, Counter-Claim or Cross-Objection filed by the State-Respondent Nos.3, 4, 6 and 7 however relying on Mahant Dhangir and Another vs. Madan Mohan and Others3, it was urged that Courts can consider the verbal submissions of such Respondents under Order 41 Rule 33 of the Code of Civil Procedure, 1908 (hereinafter, the “CPC”) and the Appellate Court can exercise the power under Rule 33 even if the Appeal is only against a part of the Decree of the Lower Court. That, the Supreme Court in the above ratio has clearly held that the sweep of the power under Rule 33 is wide enough to determine any question not only between the Appellant and the Respondent, but also between Respondent and Co-Respondents. The Appellate Court can therefore pass any Decree or Order which ought to have been passed in the circumstances of the case. It was next urged that the Respondent Nos.1 and 2 were not in possession of the suit property and in any event are restrained by the provisions of Sections 6 of the Specific Relief Act, 1963 (hereinafter, the “Specific Relief Act”) from filing the suit against the State- Respondents. That, Section 6(4) of the Specific Relief Act also does not come to the aid of the Respondent Nos.1 and 2, as they have failed to prove title and are thereby hit by the provisions of Section 6(2)(b) of the said Act. Consequently, the suit is not maintainable. That, the cross-examination by the Respondent No.5 would indicate that during the year 2004 when the family partition took place, the Respondent Nos.1 and 2 came to learn that Plot No.1836 was recorded in the name of the Respondent 3 1987 (Supp) SCC 528 RSA No.01 of 2019 13 Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others No.5 Department, if that be so, it is evident that the possession was forcible and open. That, Article 64 and not Article 65 of the Limitation Act is applicable in the instant matter as the Respondent Nos.1 and 2 did not have title and the suit was filed in an effort to circumvent the provisions of Section 6 of the Specific Relief Act. Article 64 of the Limitation Act would indicate that limitation would run from the admitted date of dispossession, which is 1973, therefore the suit is barred by limitation. Garnering strength from Ramiah vs. N. Narayana Reddy (Dead) by LRs.4, it was contended that the Hon’ble Supreme Court propounded that, when the Appellant was ousted in 1971 and the suit filed only in 1984 the suit was barred by limitation and dismissed it. Reliance was also placed on Nazir Mohamed vs. J. Kamala and Others5 on this aspect. That, in Poona Ram vs. Moti Ram (Dead) through Legal Representatives and Others6, it was held that settled possession or effective possession of a person without title entitles him to protect his possession as if he were a true owner. That, the Learned Trial Court had correctly held that Respondent No.5 had possessory rights and the Respondent Nos.1 and 2 had no locus standi to file the suit and correctly dismissed the suit of the Respondent Nos.1 and 2, which was erroneously set aside by the Learned First Appellate Court despite the Respondent Nos.1 and 2 having failed to establish title over the suit property. Hence, the Judgment of the Learned Trial Court be restored.

#11. Learned Senior Counsel for the Respondent Nos.1 and 2 Shri B. Sharma, placing his arguments contended that the provisions of the Specific Relief Act invoked by State-Respondent