Sikkim High Court
Uwendra Thapa @Nordy And Another vs Tsewang Dorjee Rinzing And Ors on 30 October, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 02 of 2022
1. Uwendra Thapa @ Nordy,
S/o Late Neel Kamal Thapa,
Resident of Jorethang, South Sikkim,
Presently residing at Lower Sichey,
P.O. Sichey & P.S. Sadar,
East Sikkim,
Pin Code - 737 101.
2. Smt. Suchitra Thapa,
Wife of Shri Uwendra Thapa @ Nordy,
Resident of Lower Sichey,
P.O. Sichey & P.S. Sadar,
East Sikkim,
Pin Code - 737 101. .... Appellants
versus
1. Shri Tsewang Dorjee Rinzing,
Son of Shri. Rinzing Lama,
R/o Tateng Retreat, Kazi Road,
P.O. Gangtok & P.S. Sadar,
East Sikkim,
Gangtok,
Pin Code -737 101.
2. The Branch Manager,
Union Bank of India,
Jorethang Branch,
P.O. & P.S. Nayabazar,
South Sikkim,
Pin Code - 737 121.
3. The SDM/Sub-Registrar, Jorethang,
Government of Sikkim,
P.O. & P.S. Nayabazar,
South Sikkim
Pin Code - 737 121.
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4.
The District Collectorate,
Office of District Collectorate,
Government of Sikkim,
P.O. & P.S. Namchi,
South Sikkim. .... Respondents
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Appeal under Order XLI, Rules 1 and 2 read with Section
151 of the Code of Civil Procedure, 1908.
[against the judgment passed by the ld. District Judge, West Sikkim at Gyalshing, in
Title Suit Case No. 01 of 2022 dated 25.06.2022 in the matter of Tsewang D.
Rinzing vs. Uwendra Thapa @ Nordy & Others]
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Appearance:
Mr. Tej Bahadur Thapa, Senior Advocate with Ms. Gita
Bista, Ms. Pratikcha Gurung and Mr. Dipendra Chettri,
Advocates for the Appellants.
Mr. Jorgay Namka, Senior Advocate with Ms. Rinchen
Ongmu, Mr. Lahang Limboo, Mr. Avinash Dewan and
Deempal Tamang, Advocates.
None for Respondent No.2.
Mr. Yadev Sharma, Government Advocate for Respondent
Nos. 3 & 4.
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Date of Hearing : 22.5.2024, 21.6.2024, 28.6.2024, 4.7.2024,
29.8.2024, 5.9.2024, 11.9.2024 and 23.9.2024
Date of Judgment: 30.10.2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
The learned District Judge vide the impugned
judgment and decree declared the respondent no.1 (the
plaintiff) the owner of the suit land and that he was in
possession thereof, when admittedly, the suit land had not
been transferred and mutated in the plaintiff‟s name. The
suit land was admittedly owned by late Sarita Thapa – the
mother of the appellant (the defendant no.1). The plaintiff
had claimed to be the owner of the suit land based on an
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oral “family arrangement” between him and late Sarita
Thapa, whereby he had lent Rs.4,00,000/- to her and she
had handed over the original Sale Deed (exhibit-P6) of the
suit land owned by her, to his wife.
2. The defendant no.1 is not satisfied with the
impugned judgment. Mr. Tej Bahadur Thapa, learned Senior
Advocate for the defendant no.1, has advanced extensive
arguments both on facts and law. According to him, the
impugned judgment is unsustainable. It is his case that the
averments in the plaint are bereft of any documentary or
unimpeachable oral evidence. The evidence led by the
plaintiff is beyond the pleadings and contradictory thereto.
The plaintiff has made improvements and embellishments to
his case. The burden of proof upon the plaintiff has not been
discharged. There is variance between his pleadings and
proof. He drew attention of this Court to sections 59 to 74 of
the Indian Evidence Act, 1872. He also drew attention of this
Court to Article 54, 58 and 65 of the Schedule to the
Limitation Act, 1963. He emphasised on the relevance of
section 34 of the Specific Relief Act, 1963. According to the
learned Senior Counsel, the suit was also undervalued and
barred by law under Order VII Rule 11 read with section 151
of the Code of Civil Procedure, 1908. He relied upon Smriti
Debbarma (Dead) Through Legal Representative v. Prabha Ranjan
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Debbarma and others1, Vijay vs. Union of India and others2,
Madholal Sindhu v. Asian Assurance Co. Ltd. & others3, Om
Prakash Berlia & Another v. Unit Trust of India & others4, Suraj
Lamp & Industries Pvt. Ltd. v. State of Haryana5, Pankajakshy v.
Devaki Ramakrishnan6, Union of India v. Ibrahim Uddin &
Another7, Ouseph Varghese v. Joseph Aley & others8, Union of
India v. Vasavi Co-op. Housing Society Ltd. & others9.
3. In Smriti Debbarma (supra), the Supreme Court
opined that burden lies on the party who asserts the
existence of a particular state of things on the basis of which
the relief is claimed as mandated in terms of section 101 of
the Evidence Act, 1872 which states that burden on proving
the fact rests with party who substantially asserts in the
affirmative and not on the party which is denying it. In terms
of section 102, if both parties fail to adduce evidence, the
suit must fail.
4. In Vijay (supra), the Supreme Court held that the
law laid down by it in Suraj Lamp (supra) was considered in
several judgments without any change and recently restated
in Munishamappa vs. M. Rama Reddy & Others10. In Suraj Lamp
1 2023 SCC OnLine SC 9
2 2023 INSC 1030
3 1945 SCC OnLine Bom 44/ AIR 1954 BOM 305
4 1982 SCC OnLine Bom 148 / AIR 1983 BOM 1
5 (2012) 1 SCC 656
6 AIR 2011 Ker 30
7 (2012) 8 SCC 148
8 (1969) 2 SCC 539
9 (2014) 2 SCC 269
10 Civil appeal no.10327 of 2011
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(supra), the Supreme Court held that a transfer of
immoveable property by way of sale can only be by a deed of
conveyance and in the absence of a deed of conveyance (duly
stamped and registered as required by law), no right, title or
interest in an immoveable property can be transferred.
According to the Transfer of Property Act, 1882, an
agreement of sale, whether with possession or without
possession, is not a conveyance. Section 54 of the Transfer
of the Property Act, 1882 enacts that sale of immoveable
property can be made only by a registered instrument and
an agreement of sale does not create any interest or charge
on its subject matter.
5. Questioning the birth certificate (exhibit-P29) of
the child of Yangchen Dolma Rinzing (PW-2), the learned
Senior counsel relied upon Madholal Sindhu (supra) in which
the Bombay High Court held that the proof of signature of its
executor is not proof of correctness of its contents and where
the correctness of the contents of a document produced in
Court is in issue, that should be proved by calling the
executor of the document as a witness. In Om Prakash Berlia
(supra), the Bombay High Court opined that the expression
“contents of a document” in section 63 of the Evidence Act,
1872 refers only to contents and not truth thereof.
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6. In Pankajkshy (supra), the Kerala High Court
opined that a claim for possession on the basis of an oral
sale can never be recognised under law.
7. In Ibrahim Uddin (supra), the Supreme Court held
that it is not permissible to claim the relief of declaration
without seeking consequential relief in view of section 34 of
the Specific Relief Act, 1963.
8. In Ouseph Varghese (supra), the Supreme Court
examined a case where the plaintiff had sought to prove an
oral agreement of sale. It was held that the first question
that arises for decision is whether the agreement pleaded in
the plaint is true. The burden of proving the agreement is
naturally on the plaintiff. The agreement in question as
mentioned is said to be an oral agreement. Therefore, the
plaintiff‟s task is all the more difficult. It was also held that
before a Court can grant a decree for specific performance,
the contract pleaded must be a specific one and the same
must be established by convincing evidence.
9. In Vasavi Co-op. Housing Society (supra), the
Supreme Court held that in a suit for declaration of title, the
burden always lies on the plaintiff to make out and establish
a clear case for granting such a declaration and the
weakness, if any, of the case set up by the defendants would
not be a ground to grant relief to the plaintiff. The legal
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position, therefore, is clear that the plaintiff in a suit for
declaration of title and possession could succeed only on the
strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have
proved their case or not. Even if the title set up by the
defendants is found against them, in the absence of
establishments of the plaintiff‟s own title, the plaintiff must
be non-suited.
10. Mr. Jorgay Namka, learned Senior Counsel for the
plaintiff, vehemently supported the impugned judgment.
According to him, the present case falls within the exception
to section 54 of the Transfer of Property Act, 1882 as the
oral agreement was in fact a family arrangement. He further
contends that the Courts have provided relief based on
possession and part performance under section 53A of the
Transfer of Property Act, 1882. It is contended that as the
plaintiff was already in unencumbered physical possession,
relief of possession was not essential. The defendant no.1
had made changes in the records of right fraudulently
despite lack of ownership document which was in the
possession of the plaintiff. He relied upon Nair Service Society
Ltd. v. Rev. Father K.C. Alexander & others11, Kale v. Dy.
11 1968 SCC OnLine SC 97/ AIR 1968 SC 1165
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Director of Consolidation12, Ravinder Kaur Grewal v. Manjit
Kaur13, Vemareddi Ramaraghava Reddy & others v. Konduru
Seshu Reddy & others14, Sri U. Vijaya Kumar & Another vs. Smt.
Malini V. Rao15, Meharchand Das v. Lal Babu Siddique16,
Arulmigu Chokkanatha Swamy Koil Trust v. Chandran17,
Venkataraja v. Vidyane Doureradjaperumal18 and Gurunath
Manohar Pavaskar v. Nagesh Siddappa Navalgund19.
11. The contention of the learned Senior Counsel for
the plaintiff regarding part performance and section 53A of
the Transfer of Property Act, 1882 is incorrect, as
admittedly, there was no contract to transfer for
consideration in immoveable property by writing as
contemplated under section 53A.
12. In Nair Service Society Ltd. (supra), the issue before
the High Court was whether the plaintiff could maintain a
suit for possession without proof of title basing himself
mainly on his prior possession. The Supreme Court held
that under section 9 of the Code of Civil Procedure itself, all
suits of a civil nature are triable excepting suits of which
their cognizance is expressly or impliedly barred. The
12 (1976) 3 SCC 119
13 (2020) 9 SCC 706
14 1966 SCC OnLine SC 112 / AIR 1967 SC 436
15 (2016) SCC OnLine Kar 2128
16(2007) 14 SCC 253
17 (2017) 3 SCC 702
18 (2014) 14 SCC 502
19 (2007) 13 SCC 565
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Supreme Court also reiterated the principle laid down in
Perry vs. Clissold20 that a person in possession of land in the
assumed character of owner and exercising peaceably the
ordinary rights of ownership has a perfectly good title
against all the world but the rightful owner. It was also held
that prior possession is a good title of ownership against all
who cannot show a better title.
13. In Vemareddi Ramaraghava Reddy, the Supreme
Court held that section 42 of the Specific Relief Act is not
exhaustive of the cases in which a declaratory decree may be
made and the courts have power to grant such a decree
independently of the requirements of the section. It follows,
therefore, that the suit of the plaintiff for a declaration that
the compromise decree is not binding on the deity is
maintainable as falling outside the purview of section 42 of
the Specific Relief Act.
14. In Sri U. Vijaya Kumar (supra), the Karnataka High
Court held that the proviso to section 34 of the Specific
Relief Act, 1963 is imperative and makes it obligatory on
every Court not to make any declaration in cases where the
plaintiff being able to seek further relief, omits to do so. A
suit should be dismissed if the plaintiff, being able to seek
further relief, omits to do so. Therefore, objection to the
20 (1907) A.C. 73
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maintainability of a suit on the ground that it does not seek
consequential relief, must be taken up with promptitude.
The proviso becomes available only when the plaintiff is able
to seek further relief against the defendant.
15. The series of judgments referred to by the learned
Senior Counsel for the plaintiff to supplement his contention
that the oral transaction between the plaintiff and late Sarita
Thapa was in fact a “family arrangement” may not be
necessary to examine in detail as the oral transaction
suggested in the plaint does not qualify as “family
arrangement” as held by Supreme Court as well as the High
Courts.
16. In Meharchand Das (supra), the Supreme Court
examined a case between a landlord and a tenant in which
the tenancy was admitted and the suit property was a
tenanted one. Therefore, the possession of the
appellant/defendant therein was not disputed. It was held
that thus under section 34 of the Specific Relief Act, 1963
the plaintiff who was admittedly not in possession of the suit
premises, a suit for mere declaration of title without claiming
possession was not maintainable.
17. In Arulmighu (supra) and Venkataraja (supra), the
Supreme Court held that a suit filed for declaration of title
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by the plaintiff who was not in possession of property was
not maintainable without further relief of possession.
18. In Gurunath Manohar Pavaskar (supra), the
Supreme Court held that revenue records are not documents
of title and it only raises a presumption. The burden to prove
title to the land is on the plaintiff.
19. Although, in the evidence recorded by the learned
District Judge, the witnesses are given specific numbers
except one who has not been assigned any witness number,
however, some of them have been referred to by different
numbers. To avoid any confusion, the witness numbers in
the impugned judgment is reflected.
The Plaint
20. The plaintiff filed a suit in the year 2018
essentially seeking a declaration that he was the owner of
the suit property and in its unencumbered actual physical
possession. The plaint was based on the plaintiff‟s assertion
that in the year 2004 he had lent Rs.4,00,000/- to late
Sarita Thapa at his sister‟s residence at Neelkamal
Apartments, Siliguri, to meet her medical expenses as she
was suffering from cancer and was being treated. In lieu
thereof, late Sarita Thapa handed over to him the original
Sale Deed (exhibit-P6) of the suit land by which she had
purchased it in the year 1979. He pleaded that late Sarita
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Thapa handed over actual physical possession of the suit
land in June 2004 after which he appointed Mani Kumar
Subba (PW-6) as its caretaker/chowkidar. It is the plaintiff‟s
case that while attending the death rites of his nephew at
Jorethang on 24.09.2018, he learnt that the defendant no.1
had mutated the suit land in his name in the year 2008 and
mortgaged it to take a loan of Rs.30,00,000/- which
compelled him to file the suit. The plaintiff had stated that
as late Sarita Thapa was critical during 2004 when the oral
transaction took place, therefore, no steps were taken to
transfer and mutate the suit land in his name.
21. The plaintiff prayed for the following reliefs:
(i) A decree declaring that the suit land/property belongs to the
Plaintiff, free from all encumbrances;
(ii) A decree declaring that the Defendant No.1 had illegally
transferred/mutated the suit property and thereafter illegally
mortgaged the suit property with Defendant No.3, in
connivance with each other.
(iii) A decree declaring that the suit land/property is in physical
possession of the Plaintiff;
(iv) A decree cancelling all the ownership documents of Defendant
No.1 with respect to the suit property;
(v) A decree directing the Defendant No.1 and 2 to immediately
repay the loan borrowed by them from Defendant No.3 as the
loan transaction between the Defendant No.1 and 3 are void
ab – initio;
(vi) Costs of the proceedings;
(vii) Any other relief/s as this Hon'ble Court may deem fit and
proper in the circumstances of the matter.
Written statements of defendants no.1 and 2
22. The defendants no.1 and 2, in their joint written
statement, took the stand that the relationship between the
plaintiff and his wife‟s younger sister – late Sarita Thapa,
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was never pleasant. The suit land had been purchased by
late Sarita Thapa on 01.09.1979, after which she and family
members fenced it and constructed other infrastructures
therein. Mani Kumar Subba (PW-6) had been authorized by
his parents to construct a godown in the suit land and to
take care of it from time to time. Late Sarita Thapa expired
in the year 2004 and late N.K. Thapa on 22.10.2006. The
defendants no.1 and 2 denied that late Sarita Thapa had
been given Rs.4,00,000/- by the plaintiff. The suit land was
transferred to his name thereafter. He had taken a loan of
Rs.30,00,000/- mortgaging the suit land as he desired to
start a business. Mani Kumar Subba (PW-6) had at one time
started claiming that he was the owner of the suit land until
he was threatened with eviction by his parents. Mani Kumar
Subba (PW-6) was also an attesting witness to a document
relating to transfer of title and mutation in the name of the
defendant no.1. In order to show possession, the plaintiff
affixed a signboard on the suit land compelling him to file a
complaint dated 12.01.2019 before the Jorethang Police,
which however, was not received by them.
Written statements of defendant no.3
23. The defendant no.3 in his written statement took
the stand that loan had been disbursed to the defendant
no.1 for his business against the mortgage of the suit land
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after conducting proper search. It was stated that the suit
land was found free from all encumbrances and charges at
the time of mortgage and that it was found that the
defendant no.1 was in its continuous physical possession.
The defendant no.3 also took the stand that during the visit
and inspection of the suit land by the Bank Officials and
approved valuers no sign board was available at the suit
land as claimed by the plaintiff. Further, Mani Kumar Subba
(PW-6) who was present at the vicinity of the suit land
informed them that it belongs to the defendant no.1. The
loan was sanctioned in favour of the defendant no.1 after
being fully satisfied.
Written statements of defendants no.4 and 5
24. A joint written statement filed by defendants no.4
and 5 also opposed the suit filed by the plaintiff as being
devoid of merits and bad in law and facts. They took a stand
that the suit land was mutated in favour of the defendant
no.1 after verifying the facts as to whether he was the legal
heir and successor of late Sarita Thapa. According to the
written statements, defendant no.1 was directed to produce
the original parcha khatiyan of the suit land in the name of
late Sarita Thapa along with other relevant documents. The
affidavit in support of the written statements filed by
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defendants no.4 and 5 was sworn by Tshering Bhutia (PW-8)
on oath as true to the best of his personal knowledge.
The issues
25. The learned District Judge framed five issues as
under:
“(i) Whether the plaintiff and the mother of defendant
no.1 had entered into any transaction/agreement involving the
suit property? (onus on the plaintiff and the defendant no.1).
(ii) Whether the plaintiff came into possession of the suit
property in June, 2004 and whether he subsequently
transferred it in his name? (onus on the plaintiff).
(iii) Whether the suit is barred by law of limitation? (onus on
the plaintiff and defendants).
(iv) Whether the suit is barred by any other law of the land
pertaining to registration of immoveable property applicable in
the State of Sikkim and (Onus on the defendants No.1, 3, 4
and 5).
(v) Whether the suit property was erroneously mortgaged by
defendant nos. 1 and 2 with defendant no. 3 or not? (onus on
the plaintiff and defendants nos. 1, 2 and 3).”
The parties and their witnesses
26. Before this Court ventures to examine the issues,
it would be relevant to note the relationship between the
parties and the key witnesses. Plaintiff is a retired judicial
officer and was married to late Mani Dorjee who was the
elder sister of late Sarita Thapa (mother of defendant no.1).
Yangchen Dolma Rinzing (PW-2) is the plaintiff‟s younger
daughter and Uden Rinzing (DW-1) is his elder daughter.
While Yangchen Dolma Rinzing (PW-2) supports the
plaintiff‟s case, Uden Rinzing (DW-1) supports the version of
the defendant no.1 who denies that his mother had handed
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over the suit land to the plaintiff as an outright sale and that
the plaintiff had lent the money to his mother. Yangchen
Dolma Rinzing (PW-2) claims that she was at Neelkamal
Apartments, Siliguri, when the plaintiff lent Rs.4,00,000/- to
late Sarita Thapa. Kessang Rinzing Lachungpa (PW-1) and
Yangchen Donka Rinzing (PW-7) are plaintiff‟s sisters
supporting the plaintiff‟s case. Both of them do not have
personal knowledge that the suit land is owned by the
plaintiff having only heard about it. They, however, depose
about the close family ties between the plaintiff, the
defendant no.1 and his late parents. Jhabarmull Agarwal
(PW-3), D.S. Bista (PW-4), Kamala Pradhan (PW-5) and Mani
Kumar Subba (PW-6) are all plaintiffs‟ witnesses who depose
that they were aware that the plaintiff was the owner of the
suit land. Mani Kumar Subba (PW-6) in addition goes on to
depose and support the plaintiff‟s case that he had been
taking care of the suit land on plaintiff‟s behalf since June
2004 when late N.K. Thapa (husband of late Sarita Thapa)
had handed over actual physical possession of the suit land
to the plaintiff at Jorethang where the suit land is situated.
Tshering Bhutia (PW-8) was the then Sub-Divisional
Magistrate from whom the plaintiff learnt in the year 2018
about the mutation of the suit land by the defendant no.1 in
the year 2008. Interestingly, Tshering Bhutia (PW-8) had
sworn the affidavit as the defendant no.4 in support of the
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joint written statement filed by defendants no.4 and 5.
Interestingly, the defendants no.4 and 5 did not produce any
witness to support their stand in the written statement
opposing the plaint. The defendants no.1 and 2 examined
themselves and Uden Rinzing (DW-1) – the elder daughter of
the plaintiff along with Padam Gurung (DW-2) – whose wife
used to work in the house of the plaintiff‟s brother. Krishna
Prasad Sharma (D3) – the Branch Manager of defendant
no.3, also came into the witness box in support of the stand
taken by them in the proceedings that the loan of
Rs.30,00,000/- had been given to the defendant no.1 for
business purposes on the mortgage of the suit land after a
thorough search thereof.
27. Before this Court delves into the issues, it would
be important to keep in mind certain settled propositions of
law while deciding civil disputes. In civil proceedings, a fact
is said to be established if proved by preponderance of
probabilities. The degree of certainty of belief in the mind of
the Court by which it convinces itself about the existence of
a fact as more probable than its non-existence is the key.
Thus, proving it by preponderance of the evidence requires a
clear demonstration that the proposition is more likely true
than not true. Section 3 of the Indian Evidence Act, 1872
provides that a fact is said to be proved when the Court
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either believes it to exist or considers its existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that the fact exists. The Supreme Court has
held in Dr. N.G. Dastane vs Mrs. S. Dastane21 that a prudent
man faced with conflicting probabilities concerning a fact
situation will act on a supposition that the fact exists, if on
weighing the various probalities he finds that the
preponderance is in favour of the existence of the particular
fact. The Court applies this test of a prudent man for finding
whether a fact in issue can be said to be proved. The first
step in this process is to fix the probabilities, the second to
weigh them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable at
the second. Within the wide range of probabilities, the Court
has often a difficult choice to make but it is this choice
which ultimately determines where the preponderance of
probabilities lies.
28. The plaintiff‟s claim to be in actual physical
possession and the owner of the suit land is central to his
case. When an individual or entity physically occupies and
controls a property it is said to be in his or its actual
possession. This type of possession is straight forward and
21 (1975) 2 SCC 326
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tangible and involves a direct interaction with the property.
It entails living in or actively using the property. To establish
actual physical possession, the plaintiff must prove that he
was in its actual occupation or through his agent to the
exclusion of others. As admittedly late Sarita Thapa was the
owner of the suit land, it is presumed that she had legal
possession of the suit land.
Issue no.1: Whether the plaintiff and the mother of defendant
no.1 had entered into any transaction/agreement involving the
suit property?
29. The oral depositions of the plaintiff and his
younger daughter – Yangchen Dolma Rinzing (PW-2), along
with the birth certificate of her daughter (exhibit – P29) and
the complaint (exhibit-17) are the only evidence relevant for
the purpose of deciding Issue No.1. Those of the witnesses
who they claim were present during the oral transaction
sometime in June 2004 at Neelkamal Apartments, Siliguri,
are no longer alive. The other witnesses of the plaintiff have
no personal knowledge about the oral transaction. The
defendants no.1 and 2 denies it. The plaintiff admits both in
the plaint as well as in his evidence that there was no
written agreement or money receipt executed.
30. The complaint (exhibit-17) made in the year 2018
is perhaps the earliest point of time when the plaintiff in
writing asserted that he had given Rs.4,00,000/- to late
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Sarita Thapa. This is after more than a decade since the
alleged “family arrangement” in the year 2004. However,
there is variation between what the plaintiff stated in the
complaint (exhibit-17) and what he stated in the plaint. The
complaint (exhbit-17) is the plaintiff‟s documentary evidence
and he is therefore bound by it. In the complaint (exhibit-
17), he stated that he was persuaded by late Sarita Thapa,
late N.K. Thapa and his wife late Mani Dorjee to give
Rs.4,00,000/- to enable them to meet the medical expenses
on the understanding that after her recovery the suit land
would be transferred and mutated in his name. The plaintiff
also asserted in the complaint (exhibit-17) that he agreed to
give Rs.4,00,000/- to them reluctantly. The plaintiff,
however, took a diametrically opposite view in his plaint
when he asserted that due to the close relationship he had
with late Sarita Thapa, he willingly gave Rs.4,00,000/- to
her and she handed over the Sale Deed (exhibit-P9) and
actual physical possession.
31. The production of the Sale Deed (exhibit-P6) and
other documents belonging to late Sarita Thapa by the
plaintiff is pleaded as a circumstance in favour of the
plaintiff. A question is posed as to why the Sale Deed
(exhibit-P6) and other property documents of late Sarita
Thapa would be in the possession of the plaintiff? There is
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R.F.A. No. 02 of 2022
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an uncertainty in the answer given both by the plaintiff and
the defendant no.1 and may be it is strewn in the complaint
(exhibit-17), the plaint and the deposition of the plaintiff and
the defendant no.1. In the complaint (exhibit-17), the
plaintiff states that those documents were “handed over to
my wife for safe custody and for taking necessary steps for
mutation later on” and it was retrieved from her box after her
death in the year 2011. In the plaint, the plaintiff asserts
that the Sale Deed (exhibit-P6) was handed over to the
plaintiff through his wife. In his deposition, the plaintiff
states that late Sarita Thapa personally handed over her
ownership documents through his wife. Although, there is
substantial variation between the stand taken by the
plaintiff in the complaint (exhibit-17) and the plaint, one
thing is certain that these documents were in the possession
of the plaintiff‟s wife and not his. Admittedly, the plaintiff‟s
wife was late Sarita Thapa‟s sister. Late Sarita Thapa was
being taken care of by the plaintiff‟s wife at Neelkamal
Apartments. Considering the close blood relationship
between them, it would not be difficult to presume that in
fact those documents were handed over to the plaintiff‟s wife
by late Sarita Thapa for safe custody. According to the
defendant no.1, these documents were missing. It is quite
clear that defendant no.1 also had no idea as to how these
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Uwendra Thapa @ Nordy & Anr. vs. Shri Tsewang Dorjee Rinzing & Ors.
documents were handed over by his mother late Sarita
Thapa to her sister – the plaintiff‟s wife.
32. The plaintiff led no corroborative evidence to
support his contention. He pleaded that as he had retired as
the Law Secretary then, he had substantial money to give
the loan of Rs.4,00,000/- to late Sarita Thapa. However, he
did not admittedly have or lead any documentary evidence to
substantiate the same.
33. There is substantive variance between his
statement in the plaint and his oral evidence as well. In his
plaint, he asserts that late Sarita Thapa had handed over
the unencumbered physical possession to him. However,
this does not look possible as late Sarita Thapa admittedly
was critical at that point of time and succumbed to cancer
shortly thereafter. In his oral evidence, the plaintiff improved
his case and deposed that although symbolic possession was
given by late Sarita Thapa to him, actual physical possession
was handed over by late N.K. Thapa at Jorethang a week
after the oral transaction in the presence of Mani Kumar
Subba (PW-6). This improvement by the plaintiff cannot be
accepted as it is not supported by his pleadings. Admittedly,
this handing over of actual physical possession by late N.K.
Thapa at Jorethang was also not documented and reduced
to in writing. If that is so, what was the need for them
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Uwendra Thapa @ Nordy & Anr. vs. Shri Tsewang Dorjee Rinzing & Ors.
including late N.K. Thapa to travel from Siliguri to Jorethang
leaving behind the critical late Sarita Thapa at Siliguri to
orally transfer the actual physical possession?
34. The plaintiff also stated in the complaint (exhibit-
17) that the original Sale Deed (exhibit-P6) which was in the
custody of his wife was retrieved from a box long after her
death. According to the plaintiff, his wife died in the year
2011. The plaint, however, manoeuvres this fact and gives a
completely different picture. The plaint seeks to assert that
the Sale Deed (exhibit-P6) was handed over by late Sarita
Thapa through his wife. However, in the complaint (exhibit-
17), the plaintiff stated that the Sale Deed document
(exhibit-P6) along with some papers were handed over to his
wife for safe custody and for taking necessary steps for
mutation later on. If, as claimed by the plaintiff in his plaint,
the Sale Deed (exhibit-P6) was handed over to him by late
Sarita Thapa as an outright sale there would be no question
of handing it over to the plaintiff‟s wife for safe custody or
discovering it in his wife‟s box after her death in the year
2011.
35. The plaintiff‟s younger daughter – Yangchen
Dolma Rinzing (PW-2), echoes the same assertion made by
the plaintiff in his evidence on affidavit. It is, therefore, only
a duplication of oral statement and does not provide any
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Uwendra Thapa @ Nordy & Anr. vs. Shri Tsewang Dorjee Rinzing & Ors.
corroborative value. The birth certificate (exhibit-P29) of
Yangchen Dolma Rinzing‟s (PW-2) child may only probabilize
that she was in Siliguri at that time but does not prove that
Rs.4,00,000/- was given to late Sarita Thapa or that there
was any such transaction even if we ignore the objection
raised by Mr. Tej Bahadur Thapa, learned Senior Counsel.
Admittedly, although, the suit land which was in the name
of late Sarita Thapa had not been transferred or mutated in
favour of the plaintiff, he took no steps till 2018 from June
2004. What happened in the confines of the apartment at
Neelkamal Apartments, Siliguri, around June 2004 when
late Sarita Thapa was admittedly “critical” according to the
plaintiff were known only to him, his late wife, late Sarita
Thapa, late N.K. Thapa and his daughter Yangchen Dolma
Rinzing (PW-2). With the other three no longer alive to throw
light upon it, the only evidence the plaintiff relies upon is his
and the evidence of his daughter Yangchen Dolma Rinzing
(PW-2). Their oral evidence, however, remains only an oral
assertion with no proof. Therefore, there was no material
evidence on record before the learned District Judge which
could persuade her to hold that there was a
transaction/agreement involving the suit property even by
preponderance of probabilities. The findings and the opinion
of the learned District Judge on Issue No.1, is therefore,
unsustainable and set aside. This Court holds that the
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plaintiff has failed to prove that there was any
transaction/agreement involving the suit land.
36. The plaintiff had pleaded that he was the owner of
the suit land and the defendant no.1 had denied it. The
learned District Judge, however, chose not to frame an issue
of ownership quite obviously since the plaintiff had pleaded
that the suit land had not been transferred and mutated in
his name. There is no other way known to law by which
ownership could have been established by the plaintiff
without a conveyance deed as he pleaded that the
transaction was an outright sale. In such view of the matter,
therefore, the question of granting the first prayer of a
declaration of ownership to the plaintiff could not have
arisen. However, the learned District Judge even while
holding that there could not be any transfer of immoveable
property, i.e., the suit land, which was valued much more
than rupees one hundred in view of section 54 of the
Transfer of Property Act, 1882, chose to declare the plaintiff
the owner thereof. This was incorrect. The declaration is set
aside.
Issue No.4: Whether the suit is barred by any other law of the
land pertaining to registration of immovable property applicable
in the State of Sikkim?
37. At this juncture, it would be relevant to examine
Issue No.4 framed by the learned District Judge and the
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correctness of the view that although section 54 of the
Transfer of Property Act, 1882 does not permit transfer of
immoveable property like the suit land as it was valued more
than one hundred rupees, it was permissible for the Court to
nevertheless grant the declaration of ownership as prayed
for by the plaintiff.
38. Section 54 of the Transfer of Property Act, 1882 reads
as under:
“54. “Sale” defined. – “Sale” is a transfer of ownership in exchange
for a price paid or promised or part-paid and part-promised.
Sale how made.- Such transfer, in the case of tangible immoveable
property of the value of one hundred rupees and upwards, or in the
case of a reversion or other intangible thing, can be made only by a
registered instrument.
In the case of tangible immoveable property of a value less than one
hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller
places the buyer, or such person as he directs, in possession of the
property.
Contract for sale.- A contract for the sale of immoveable property is
a contract that a sale of such property shall take place on terms
settled between the parties.
It does not, of itself, create any interest in or charge on such
property.”
39. In Suraj Lamp (supra), the Supreme Court held
that a transfer of immovable property by way of sale can only
be by a deed of conveyance (sale deed). In the absence of a
deed of conveyance (duly stamped and registered as required
by law), no right, title or interest in an immovable property
can be transferred.
40. Thus, the declaration of ownership by the learned
District Judge based on an assertion of oral transaction and
possession was incorrect.
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41. There is yet another aspect to it which requires
this Court‟s attention. It has been noticed that the plaintiff
had stated that there was no deed of transfer and mutation
in his favour in the plaint itself. Inspite of that, the plaintiff
did not pray for a direction upon the defendants no. 1 and 2
to transfer and mutate the suit land in his favour. Section
34 of the Specific Relief Act, 1963 provides as under:
“34. Discretion of court as to declaration of status or right. –
Any person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further
relief:
Provided that no court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.
Explanation. – A trustee of property is a „person interested to
deny” a title adverse to the title of some one who is not in existence,
and whom, if in existence, he would be a trustee.”
42. The proviso to section 34 of the Specific Relief Act,
1963 makes it clear that if the plaintiff in a suit for
declaration omitted to seek further relief than a mere
declaration, although able to, then the Court shall not grant
such a declaration alone.
43. The learned Senior Counsel for the plaintiff
submitted that it is not mandatory in every case that the
plaintiff would be required to seek other relief and if the
plaintiff was in possession of the suit land a mere
declaration of ownership would suffice relying upon various
judgments of the Supreme Court as well as various High
Courts. In the present case, although the plaintiff asserts
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that he was in possession of the suit land, the defendants
no.1 and 2 vehemently deny it. Therefore, it was incumbent
upon the plaintiff to establish possession of the suit land.
44. Admittedly, there was no transfer deed executed
in favour of the plaintiff and the defendant no.1 had also
mutated the suit land in his name in the year 2008. The
plaintiff being aware of the law that there would be no
transfer of immoveable property without a valid deed of
transfer has categorically stated in the plaint that they could
not execute any transfer deed because of various reasons.
Thus, in view of section 54 of the Transfer of Property Act,
1882 and section 34 of the Specific Relief Act, 1963 it was
also necessary for the plaintiff to seek further reliefs to
ensure that the transfer deed is executed by the defendant
no.1 in his favour and the suit land mutated in his name
without which he would have no title upon the suit land and
enjoy it. Having not done so, the learned District Judge was
precluded from granting the declaration of ownership to the
plaintiff. Issue no.4 is, therefore, decided against the
plaintiff.
Issue No.2: Whether the plaintiff came into possession of the
suit property in June, 2004 and whether he subsequently
transferred it in his name?
45. Issue No.2 – whether the plaintiff had come into
possession of the suit land in June 2004, is relatable to the
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third prayer sought for by the plaintiff, i.e., a declaration
that he was in physical possession.
46. The plaintiff‟s case in the plaint was that he was
in “unencumbered physical possession” of the suit property
“since June, 2004 when ownership and unencumbered
physical possession of the suit property was handed over by
late Sarita Thapa”.
47. However, the plaintiff sought to improve his case
and deposed that “symbolic possession of the suit property”
was made by late Sarita Thapa in Siliguri by handing over
the original sale deed (exhibit-P6) of the suit property to him
and that the “unencumbered actual physical possession” of
the suit property was given through her husband late N.K.
Thapa in the presence of Mani Kumar Subba (P.W. 6) within
one week thereafter when the plaintiff and late N.K Thapa
visited the suit property.
48. Mani Kumar Subba‟s (P.W.6) affidavit in evidence
to the extent he seeks to support the plaintiff‟s deposition
about late N.K. Thapa handing over the unencumbered
actual physical possession of the suit property to him cannot
also be accepted as it is beyond the plaintiff‟s pleadings in
the plaint.
49. This was an improvement made by the plaintiff
and deposed in the plaintiff‟s evidence on affidavit sans any
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pleading. This evidence of the plaintiff, is therefore, contrary
to the pleading. It is well settled that no amount of evidence
contrary to the pleading can be relied on or accepted.
50. The plaintiff sought to establish his case of
possession by his and his witnesses‟ oral depositions and
certain other evidences. He also presented certain
circumstantial facts to establish possession. He asserted
that after he took over actual physical possession of the suit
land, he engaged Mani Kumar Subba (PW-6) as his
caretaker/chowkidar who fenced the suit land and also
made a godown. The plaintiff also asserted that he had put
up a signboard in the suit land stating that it was his
property in the year 2004. He exhibited the photographs
exhibit-P13, exhibit-P14 and exhibit-P15 to establish the
fact.
51. However, the plaintiff in cross-examination
admitted that he had no document to show that he had been
handed over possession of the suit land by late Sarita Thapa
and late N.K. Thapa in the year 2004. He admittedly did not
have any documentary proof of appointing Mani Kumar
Subba (PW-6) as his chowkidar/caretaker or of fencing it or
erecting a godown therein. The plaintiff admitted that Mani
Kumar Subba (PW-6) had been kept by late Sarita Thapa
and late N.K. Thapa, as caretaker of the suit land. The
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plaintiff also admitted that the suit land was already fenced
in the year 2004. He volunteered to clarify that after he took
possession; he continued to engage him as caretaker and
instructed Mani Kumar Subba (PW-6) to improve the suit
property by way of cultivation, repairs, etc. as found
necessary. This voluntary statement is not what he had
pleaded in the plaint categorically. The plaintiff also
admitted that he had no document to show that he had been
paying Mani Kumar Subba (PW-6) any salary. The plaintiff
admitted that he did not remember whether the signboard
was affixed in the year 2018 under extensive cross-
examination by the counsel for the defendant no.1, where he
also admitted that the signboard was affixed by him after
one or two years after 2004. The plaintiff‟s witness – D.S.
Bista (PW-4) in his cross-examination held on 12.03.2021
categorically admitted that the signboard had been affixed
just one two years back. This admission of the plaintiff‟s
witness probabilizes the assertion of the defendant no.1 that
the plaintiff affixed a signboard to show possession on the
suit land in 2019.
52. In view of the clear admissions made by the
plaintiff in his cross-examination, the evidence of Mani
Kumar Subba (PW-6) diminishes in relevance. Furthermore,
it is noticed that Mani Kumar Subba (PW-6) in cross-
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examination, admitted that his evidence on affidavit was
already prepared and he was asked to sign on it. Mani
Kumar Subba (PW-6) could not also say what was written
therein.
53. The evidence on affidavit of Yangchen Dolma
Rinzing (PW-2) also reflects that her knowledge about her
father having appointed Mani Kumar Subba (PW-6) as his
caretaker/chowkidar for the suit property and her father
having unencumbered physical possession was not based on
her personal knowledge. Admittedly, she was married in the
year 2003 and after her marriage she resided with her
husband in Delhi till 2017. Admittedly, Yangchen Dolma
Rinzing (PW-2) has been residing with the plaintiff since
April 2018. The plaintiff‟s claim that he had been in
unencumbered physical possession of the suit land since
June 2004 and that he had kept Mani Kumar Subba (PW-6)
as caretaker therein is not supported by any credible
substantial evidence.
54. Both Kessang Rinzing Lachungpa (PW-1) and
Yangchen Donka Rinzing (PW-7) – the plaintiff‟s two sisters,
also had no personal knowledge about the possession of the
suit land. Both state in their evidence on affidavit that their
brother is said to have purchased land at Jorethang from
late Sarita Thapa which is being taken care of by his
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caretaker. Their evidence also does not support the plaintiff‟s
claim of actual physical possession of the suit land.
55. Jhabarmull Agarwal (PW-3) and D.S. Bista (PW-4)
only assert that they have personal knowledge that the
plaintiff was the owner of the suit land without any further
details. The cross-examination of Jhabarmull Agarwal (PW-
3) has brought out the fact that he was the purchaser of a
building owned by the plaintiff. D.S. Bista (PW-4) admitted
in cross-examination that although the plaintiff had told him
that the suit land was his property; he had not seen any
property papers; he did not know about any transaction of
the suit land; and in whose name the suit land was recorded
at present. Their evidence also does not further the claim of
actual physical possession of the suit land by the plaintiff.
56. Kamala Pradhan (PW-5) deposed that Mani
Kumar Subba (PW-6) was her neighbour and that he had
been looking after the property of the plaintiff beside her
house and that all the people in the locality were well aware
that the land belonged to the plaintiff. Kamala Pradhan (PW-
5) admitted that she was the sister-in-law of Mani Kumar
Subba (PW-6) during her cross-examination. D.S. Bista (PW-
4) also confirmed this fact during his cross-examination.
Kamala Pradhan (PW-5) clarified during cross-examination
that she had heard the suit land belonged to the mother of
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defendant no.1 which was subsequently owned by the
plaintiff. None of the plaintiff‟s witnesses had anything more
substantial to state or produce save repeating what was told
to them.
57. Admittedly, neither the plaintiff nor Mani Kumar
Subba (PW-6) were residing in the suit land. Mani Kumar
Subba (PW-6) was merely keeping an eye on it as he
happened to live nearby. Mani Kumar Subba (PW-6) stated
in his evidence on affidavit that he had the keys to the only
entry point of the said land. However, he did not produce or
exhibit the keys.
58. “Unencumbered actual physical possession” is a
question of fact which must be proved by cogent evidence.
The plaintiff has failed to produce any substantial evidence
which would inspire confidence to hold that he was in
unencumbered actual physical possession. All the
corroborative evidences the plaintiff sought to place before
the Court to make the Court believe what he stated in his
plaint to be true have collapsed. His statement stands alone
without proof. This Court is of the firm view that the finding
and opinion of the learned District Judge declaring the
plaintiff to be in possession of the suit land is also incorrect
and accordingly it is set aside.
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Issue No. 5: Whether the suit property was erroneously
mortgaged by defendant nos. 1 and 2 with defendant no. 3 or
not?
59. The next question therefore which is needed to be
answered is whether the defendants no.1 and 2 had
erroneously mortgaged the suit land with defendant no.3.
60. Admittedly, the suit land was owned by late Sarita
Thapa. During cross-examination, the plaintiff admitted that
the defendant no.1 was her heir and entitled to inherit her
property. This Court has held that the plaintiff has failed to
prove that there was any transaction with regard to the suit
land as asserted by him in the plaint. The plaintiff was
therefore not the owner of the suit land. This Court has also
concluded that the plaintiff was unable to prove that he was
in actual physical possession of the suit land. Thus, it
cannot be held that the suit land was erroneously mortgaged
by defendants no.1 and 2 with defendant no.3.
Issue No.3: Whether the suit is barred by the law of limitation?
61. The learned District Judge has framed an issue as
to whether the suit is barred by the law of limitation. The
learned District Judge has held that since the plaintiff learnt
about the mutation of the suit land by the defendant no.1
and the loan taken by him by mortgaging it only on
24.09.2018 the suit was not barred by the law of limitation.
The plaintiff was aware that the suit land could not be
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owned by him until it is transferred and mutated in his
name even if his assertion of an oral agreement is presumed
to be correct. Therefore, the only right he had in the
presumed circumstance was a right of specific performance
of the alleged oral agreement. The plaintiff could not have
been declared the owner of the suit land without a validly
registered transfer deed. In that situation, Article 54 of the
Limitation Act, 1963 provides a period of three years from
the date fixed for the performance, or if no such date is
fixed, when the plaintiff has notice that performance is
refused. According to the plaint, the defendant no.1 for one
reason or the other never pursued the matter of transfer of
the suit land in the plaintiff‟s name despite the plaintiff
having approached him and personally requested him
several times to help transfer the suit land which was
recorded in his name. Although, the plaintiff does not specify
when he made this request to the defendant no.1, it is quite
clear that it was some time after late Sarita Thapa‟s death in
the year 2004 and much prior to 2018. However, admittedly,
the plaintiff took no such steps from 2004 till 2018 and
when he did he filed the present suit for declaration instead.
Without the transfer and mutation in his name, the plaintiff
could not have waited for 14 long years to approach the
Court of law. The plaintiff therefore could not have filed a
suit for specific performance in the year 2018 as it would
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have been barred by laws of limitation. Evidently, therefore,
the plaintiff preferred to file a suit for declaration of title on
the ground that he was in possession of the suit land. This
Court has concluded that the plaintiff has failed to prove
possession of the suit land. Admittedly, there is no title deed
in favour of the plaintiff. As held above, the suit for
declaration of ownership was not maintainable due to the
mandate of section 54 of the Transfer of Property Act, 1882
and section 34 of the Specific Relief Act, 1963. Without the
relief of declaration of ownership, the rest of the prayers in
the suit would collapse. The issue of limitation is also
decided against the plaintiff.
62. The appeal is allowed. The impugned
judgment and decree are set aside. In view of section 35 of
the Code of Civil Procedure, 1908, the cost of the present
appeal shall be paid by the plaintiff to the defendant no.1.
(Bhaskar Raj Pradhan)
Judge
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