Bharat Sanchar Nigam Limited (BSNL) & Ors. v. Sashidhar Nepal

Judgment

#1. The short question for consideration in the instant Appeal is; “Whether the Appellants/Defendants have encroached on the land of the Respondent/Plaintiff bearing plot no.728, measuring an area of 0.0140 hectares as described in Schedule B to the Plaint and constructed buildings and telecom towers thereon.”

#2. The Appellants were the Defendants before the Trial Court, while the Respondent was the Plaintiff. The parties shall hereinafter be referred to by their litigative status during trial.

#3. The Plaintiff filed a suit for declaration, injunction, recovery of possession and other consequential reliefs before the Court of the District Judge, East Sikkim, at Gangtok, averring that he is the owner of a plot of land, bearing no.728, registered in his name and measuring an area of 0.0140 hectares, under Kambal block, East Sikkim. The Defendants in the year 1988 started RFA No.01 of 2022 2 BSNL and Others vs. Sashidhar Nepal construction of their towers on an adjacent plot of land. During such process, they encroached upon a portion of the Schedule B land described hereinabove. Proceedings were initiated before the

concerned authority of the District Collectorate by the Plaintiff and field verification of the land was carried out in the presence of the officers of the Defendants Company. The area Amin (Revenue Supervisor) who had conducted the inspection in the presence of both parties concluded that, the Defendants had indeed encroached upon the land of the Plaintiff. Nevertheless, as no settlement could be arrived at before the revenue authorities, the Plaintiff approached the Lok Adalat, Gangtok, East Sikkim. The matter remained unresolved before the Lok Adalat, upon which the Plaintiff filed the aforestated Suit before the Court of the District Judge, East Sikkim, at Gangtok, with the following prayers in the Plaint “(i) Removal of the illegal structure, building and towers from the land of the Petitioner. (ii) Pay compensation of Rs.10,00,000/- towards illegal occupation. (iii) Pay compensation of Rs.5,00,000/- towards harassment and mental tension. (iv) Pay compensation of ₹ 5,00,000/- towards depreciation of the valuation of land. (v) Handing over the peaceful and unencumbered possession of the land (Schedule-B) to the Plaintiff. (vi) A permanent injunction restraining the: (a) Defendants from putting any cables, lines, etc upon and in the land and in the towers, houses. (b) Or debarring the Defendants from making any renovation or improvement over the said schedule land. (vii) Costs of proceedings; (viii) Any other relief or reliefs as this Hon‟ble Court may deem fit and proper in the interest of justice.” RFA No.01 of 2022 3 BSNL and Others vs. Sashidhar Nepal

#4. The Defendants denied and disputed the claims of the Plaintiff and averred that, in the year 1986 the company had purchased plot No.727(P) from one Devi Bhakta Guragai who handed over vacant and peaceful possession of the land to them in the presence of the Assistant Land Record Officer. Although, the prevailing local laws prevented the Company from registering and mutating the land in their name, however the towers were constructed within land purchased by them with no encroachment on the land of the Plaintiff. The grievance of the Plaintiff in fact arose from an apprehension of the hazardous effects of the mobile towers constructed close to his residence and was not on account of any encroachment. That, the Defendants had promised to compensate the Plaintiff which later was not necessitated as the construction did not extend beyond the property purchased by them.

#5. The Trial Court settled the following issues determination; (1) Whether the Defendants have encroached the plot of land belonging to the Plaintiff, if so to what extend (sic. extent)? (Onus on both the parties) (2) Whether the Defendants have constructed any illegal structures/towers on the encroached land? (Onus on the Plaintiff) (3) Whether the Plaintiff is entitled for peaceful and unencumbered possession of the land from the illegal occupation of the Defendants? (Onus on the Plaintiff) (4) Whether the Plaintiff is entitled for peaceful, vacant land, clear from all structures and towers? (Onus on the Plaintiff) (5) Whether the suit of the Plaintiff is barred by law of estoppels, acquiescence and waivers? (Onus on Defendants) (6) Whether the Plaintiff is entitled for relief or reliefs as claimed by him in his Plaint? (Onus on the Plaintiff) RFA No.01 of 2022 4 BSNL and Others vs. Sashidhar Nepal

#6. In support of his case the Plaintiff examined himself and six other witnesses viz.; his son Parshuram Nepal, Tekchand Balmiki, William Tamang, Robin Prasad Sewa, Sonam Choejee Lachenpa and Nakul Rai. The Defendants on the other hand examined Dinesh Kumar Upadhyaya and Tenzing Dorjee. (i) The Trial Court on consideration of the evidence furnished by both parties, including the documentary evidence, opined issue no.1 that, the Defendants Company had encroached upon the land of the Plaintiff being plot no.728, measuring an area of 0.0140 hectares and that any construction made by the Defendants is liable to be dismantled, demolished and removed from the Plaintiff‟s land and peaceful and vacant possession handed over to him. In issue no.2 it was observed that, the survey report placed on record indicated that the Defendants had constructed structures and towers on the land of the Plaintiff. In issue no.3 it was found that there was encroachment on the land of the Plaintiff, consequently the Plaintiff was entitled to peaceful and encumbered possession of the land. In issue no.4 the same conclusion as issue no.3 was arrived at. In issue no.5 it was found that the Plaintiff had not waived his rights nor was he barred by the principles of estoppel and acquiescence. In issue no.6 the Court concluded that, the Plaintiff had successfully established his case. Consequently, the Defendants were directed to remove all illegal structures/building/towers from the land of the Plaintiff and hand over to him peaceful and vacant possession. The Defendants were ordered to pay the Plaintiff a sum of ₹ 10,00,000/- (Rupees ten lakhs) only, as compensation for illegal encroachment and occupation since 2012. The Defendants RFA No.01 of 2022 5 BSNL and Others vs. Sashidhar Nepal were also directed to pay a sum of ₹ 2,00,000/- (Rupees two lakhs) only, as compensation towards harassment and mental torture meted out by the Defendants to the Plaintiff.

#7. Learned Counsel for the Defendants (the Appellants herein), advanced the argument that the Plaint suffered from lack of specificity and that the Trial Court could not have decreed the suit in favour of the Plaintiff on the basis of vague and uncertain pleadings and evidence. The Plaintiff failed to file the deed of conveyance to establish title. The exact details of the boundaries and extent of encroachment are unclear. Relying on the decisions in P. Kishore Kumar vs. Vittal K. Patkar1 and M.T.W. Tenzing Namgyal and Others vs. Motilal Lakhotia and Others2, it was urged that it is now settled law that entries in revenue records do not prove title. The evidence of the son of the Plaintiff, Parsuram Nepal, is that the mobile towers are not standing on the entire area of plot no.728, PW Tekchand Balmiki, too deposed that the building of BSNL was standing partially upon plot no.728, but failed to mention the exact area of the land encroached. PW William Tamang in his evidence, did not mention about the encroachment, while PW Sonam Choejee Lachenpa testified that, certain portion of the building fell on the land of the Defendants. The evidence of PW Nakul Rai points to Ext-U which does not seem to be a joint inspection report as a joint inspection report is signed by the parties and the concerned surveyor, whereas Ext-U was only signed by the surveyor. The evidence of DW Tenzing Dorjee indicates that, the complaint was against installation of towers by the Defendants and he submitted a report to the effect that the land on which the towers were 1 2023 SCC OnLine SC 1483 2 (2003) 5 SCC 1 RFA No.01 of 2022 6 BSNL and Others vs. Sashidhar Nepal constructed were purchased by the Department of Post and Telegraph in the year 1981-82 but the Defendants did not mutate or register the land in their name. The dispute stemmed from the hazardous effects of the towers and was not a land dispute. That, the Plaintiff has to prove his own case and cannot rely on the weakness of the Defendants case as held by the Supreme Court in Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others3. The Plaintiff has not exhibited a single document the year 2000 till 2012 complaining of encroachment on his land by the Defendants. Before the Lok Adalat there was no question of encroachment and there is no prayer for declaration and possession in the Plaint. Relying on Anathula Sudhakar vs. P. Bucchi Reddy (dead) by LRS. and Others4, it was urged that the Plaintiff must necessarily file a suit for “declaration” if there is a cloud over title. It was next urged that the suit is barred by limitation as the building was constructed in the year 1988 and the period of limitation is three years from the date when the cause of action first arose. The Trial Court order for payment of compensation was without any averments in the Plaint and the amount of compensation is unjustified. Hence, the Appeal be allowed and the Judgment and Decree of the Trial Court be set aside.

#8. Learned Counsel for the Respondent for his part submitted that no grounds arise for setting aside the impugned Judgment as the necessary evidence furnished by the Plaintiff has been given due consideration and the Suit decreed. No evidence was furnished by the Defendants to disprove the case of