Panduman Rai vs State of Sikkim and Others

Sonam Phintso Wangdi, J.—By filing this Appeal the Appellant-Plaintiff seeks to assail judgment dated 29-03-2014 of the Learned District Judge, South Sikkim at Namchi in Title Suit No. 8 of 2009 by which suit for possession, mesne profits/damages, permanent and mandatory injunctions filed by him against the Respondents-Defendants in respect of certain plots of land situated at Chumlok Block, Tinkitam, Namchi, South Sikkim, was dismissed.

2(i). Briefly stated, the case of the Appellant-Plaintiff in the suit so far as it relevant for the purpose of this Appeal is that he is the lawful owner of the suit land bearing Khasra Nos. 168, 214 and 218 measuring 1.93380 hectares situated at Chumlok Block, Tinkitam, Namchi, South Sikkim. The Respondents-Defendants, however, took over possession of it without acquiring it in accordance with law and unauthorisedly raised structures thereon. That the Appellant-Plaintiff was unaware of his right over the suit land as it was kept concealed from him by the Respondents-Defendants mis-representing that it belonged to the Government. The Respondents-Defendants had thus played fraud upon the Appellant-Plaintiff and trespassed into the suit land dispossessing him of it in 1985. It was averred that as the Respondents-Defendants were trespassers they were liable to deliver possession of the suit land to the Appellant-Plaintiff and to pay damages and mesne profits for its unauthorised use and occupation since 1985 with interest until its possession was handed over to the Appellant-Plaintiff.

(ii) It was also averred that the Respondents-Defendants were liable to remove the illegal and unauthorised construction raised by them upon the suit land for which a decree for mandatory injunction was sought for. The legal notice under Section 80 of the Code of Civil Procedure, 1908 (in short ''CPC''), dated 02-08-2008 issued to the Respondents-Defendants by the Appellant-Plaintiff through his Counsel having not been responded to despite its receipt by them, led the Appellant-Plaintiff to file the suit.

(iii) In the plaint, the Appellant-Plaintiff has specifically pleaded that the cause of action for filing the suit arose when the Respondents-Defendants trespassed into and dispossessed the Appellant-Plaintiff of the suit land, thereafter in 2006 when the Appellant-Plaintiff came to learn that the Respondents-Defendants had dispossessed him of the suit land by concealing the fact that it was he who was its owner and on 02-08-2008 when notice under Section 80 CPC was issued by him. He has thus prayed for a decree for possession of the suit land, mandatory injunction for removal of the construction raised by the Respondents-Defendants thereon and for mesne profits/damages and interest for the illegal occupation of the suit land by the Respondents-Defendants.

(iv) The Respondents-Defendants in their joint written statement denied all material allegations contained in the plaint and asserted that the suit land was legally acquired by the Respondent-Defendant No. 2, i.e., the District Collector, Namchi, South Sikkim for the Respondent-Defendant No. 3, i.e., the Secretary, Animal Husbandry and Veterinary Department, Government of Sikkim, for the purpose of establishment of a Veterinary Institution at Wok for public purpose after following the due process of law of acquisition from its recorded land owner, Shri Ash Dhan Rai (who undisputedly is a deceased person). An objection for non-joinder of necessary party was taken as the Appellant-Plaintiff had failed to implead the said Ash Dhan Rai or his legal heirs and successors as party to the suit, they being necessary parties. Apart from this, it was pleaded that the suit was hit by the principles of waiver, estoppel and acquiescence and also the Appellant-Plaintiff''s want of necessary locus standi to file the suit having failed to produce any evidence to support his right, title and interest over the suit properties and, that the Appellant-Plaintiff had failed to disclose as to how and from whom the suit land had devolved upon him. That no record from the old survey of 1950-52 was produced by him corresponding to the new Khasra record that shows him as the owner.

(v) It is further stated that the suit land does not consist of the entire area covered by plots No. 168, 214 and 218 measuring 1.93380 hectares but of certain areas covered by plots No. 218 and 214 as per the survey record of 1978-80 corresponding to plots No. 21, 22, 23 and 29 measuring about 0.08, 0.12, 2.36 and 0.18 acres respectively which, together measure about 2.74 acres as per the 1950-52 survey record. It is clarified that entire area covered by plot No. 21 measuring 0.08 acres and a portion of plot No. 23 measuring 0.15 acres out of the total area measuring 2.36 acres, were acquired by the P.W. D. and the remaining area measuring 2.41 acres was lawfully acquired by the Respondent-Defendant No. 3 through Respondent-Defendant No. 2 in 1985 and ever since then it has been under their active physical possession by construction of the Veterinary Institution.

(vi) As per the Respondents-Defendants, plots No. 21, 22, 23 and 29 as per the old survey record of 1950-52 were originally owned by and recorded in the name of Ms. Sari Devi Rai, daughter of Nayapatey Rai of Chumlok Block of South Sikkim. Those were subsequently mutated in the name of one Ash Dhan Rai (since deceased) from the name of the original owner, Ms. Sari Devi Rai, vide File No. 1(53)82-83, Serial No. 228 dated 14-02-1982 in the old survey records of 1950-52. Thus, as per them, plots No. 218 and portion of 214 as per the new survey record of 1978-80 corresponding to the plots No. 21, 22, 23 and 29 as per the old survey record of 1950-52, never stood recorded in the name of the Appellant-Plaintiff or his father Sukraj Rai @ Sukhbir Rai at any point of time. The Appellant-Plaintiff being a neighbor of the deceased Ash Dhan Rai in the same block and the suit land also being located adjacent to his, was well-aware of such transfer and mutation and of the constructions raised on it by the Respondent-Defendant No. 3 shortly after its acquisition in 1985.

(vii) It has been pointed out that the Appellant-Plaintiff had chosen to file the suit only after demise of the said Ash Dhan Rai. That the land was acquired at the behest of the Respondent-Defendant No. 3 having obtained consent letter of the seller, Ash Dhan Rai, duly recommended by the local Panchayat and countersigned by the Area MLA. That after necessary survey, compensation was paid to the deceased Ash Dhan Rai and his cultivator, Dal Bahadur Tamang. Entry of the Appellant-Plaintiff''s name as owner of plots No. 214 and 218 in the new survey record was a result of an inadvertence and mistakes on part of the surveyors from the Directorate of Survey and Settlement at the time of the survey operations and that necessary steps for its rectification had been contemplated. Facts stated in the plaint contrary to those contained in the written statement were denied as being false.

3(i). The Trial Court upon consideration of the pleadings and submissions of the parties, framed the following issues:--

"1. Whether the suit is barred by the law of limitation, waiver and estoppel?

Whether the Plaintiff is the recorded owner of the suit land?

Whether the Defendant No. 2 followed the due process of law for acquisition of suit property?

Whether Ashdhan Rai was the recorded owner of the suit land?

Whether the suit is bad for non-joinder of Ashdhan Rai as necessary party?

Whether the suit is barred by Section 34 of the Specific Relief Act, 1963?

Whether the Defendant No. 3 had taken possession of the suit land by construction of a building?

Whether the Plaintiff had any right and title over the suit land by way of inheritance, succession, sale, gift, etc.?"

(ii) Later vide order dated 10-03-2014, the following issue as additional issue No. 9 was also framed:--

"9. Whether the Plaintiff is entitled to the relief(s) as prayed for in the plaint?" (iii) Upon consideration of the pleadings, oral and documentary evidence, the Trial Court decided all the aforesaid issues against the Appellant-Plaintiff and dismissed the suit.

4(i). Before this Court, Mr. Eklovya Rai Nagpal, Learned Advocate, appearing on behalf of the Appellant-Plaintiff, chose to assail the findings of the Trial Court by taking up issues No. 2 and 4 first and submitted that it had been established that the documents Exhibits 14 and 16 being the Parcha Khatiyan as per the new survey record read with Exhibit 7 (collectively) being the original Khazana receipts in respect of the suit land clearly established that the Appellant-Plaintiff was the recorded owner of the suit land and that the deceased Ash Dhan Rai was never so as asserted by the Respondents-Defendants. The Learned Advocate would heavily rely upon the evidence of D.W. s 1, 2 and 3 in support of this submission.

(ii) It was submitted that the Khasra Khatiyan of 1950-52, Exhibit ''A'', relied upon on behalf of the Respondents-Defendants was of no help as the old land record ceased to operate since 17-01-1984 vide Notification No. 991/DDLR dated 17-01-1984. It is also pointed out that the suit land was mutated in the name of Ash Dhan Rai in Exhibit ''A'' from the name of Sari Devi Rai in the year 1982, i.e., after the survey operations of 1978-80, to suggest that such mutation was a fraudulent one. This, as per the Appellant-Plaintiff, was obvious as File No. 1(53)82-83, Serial No. 228 dated 14-02-1982, was not produced by the Respondents-Defendants despite several opportunities leading the Trial Court to ultimately pass order dated 18-05-2011 forbidding them from furnishing and relying upon such documents thereafter. This, as per the Learned Advocate, attracted the provisions of Section 114(g) of the Indian Evidence Act, 1872 to draw an adverse inference against the Respondents-Defendants.

(iii) It was thus stated that the Respondents-Defendants had failed to prove that Late Ash Dhan Rai was the lawful owner of the suit land but to the contrary the Khatiyan Parchas Exhibits 14 and 16 read with Khazana receipts Exhibits 7 (collectively) established that it was the Appellant-Plaintiff who was the owner for which he continues to pay the revenue. It was submitted that the Trial Court completely overlooked the evidence of D.W. s 2 and 3 as well as the documentary evidence discussed above.

(iv) It was further his contention that even the evidence of the cultivator, Dal Bahadur Tamang examined as D.W. 3, revealed that when he requested Late Ash Dhan Rai to allow him to cultivate the suit properties, the latter took him to the Appellant-Plaintiff who executed some documents. This evidence, as per the Learned Advocate, would establish that the Appellant-Plaintiff was the rightful owner to decide on the request of the D.W. 3 and to execute the agreement appointing D.W. 3 as ''kutiadar'' (cultivator). It was further pointed out that the admitted position on the part of the Respondents-Defendants that the acquisition of the suit land in 1985 was carried out on the basis of the survey record of 1950-52 which had ceased to operate since the year 1984, was overlooked by the Trial Court which, if noted would have rendered the acquisition void ab initio.

(v) Taking up issue No. 3, i.e., whether the Defendant No. 2 followed the due process of law for the acquisition of the suit property, it was submitted that the Respondents-Defendants had not been able to establish that the acquisition of the suit land was carried out in accordance with law when, as revealed from the evidence of D.W. s 1 and 2, it was carried out on the basis of the entry in the obsolete survey record of 1950-52. The entire procedure of acquisition was thus rendered illegal, the Respondents-Defendants having failed to note that as per the new survey record which was in operation, it was not Ash Dhan Rai but the Appellant-Plaintiff who was the owner of the suit land. Moreover, when Sections 3 and 4 of the Sikkim Land (Requisition and Acquisition) Act, 1977, clearly provides for issue of notice in the prescribed manner to the owner of the land, no such notice was issued but rather the Respondents-Defendants admittedly had acquired the property based upon a letter of consent, Annexure ''IV'', written by Late Ash Dhan Rai. It was further urged that the Respondents-Defendants had even failed to produce the original of the letter of consent, Annexure ''IV'' said to have been written by Late Ash Dhan Rai. The relevant note sheets of the acquisition filed as Exhibit ''M'' at a belated stage of the trial, was unreliable as Respondents-Defendants had failed to produce the concerned file from which it had been taken. That even otherwise, the notes contained in Exhibit ''M'' was of no assistance to the Respondents-Defendants as there was no mention of the plot numbers of the land said to have been acquired by the Respondents-Defendants. The finding of the Trial Court on issue No. 3, as per the Learned Advocate, therefore, was liable to be set aside.

(vi) The finding on issue No. 5 on the question as to whether the suit is bad for non-joinder of Ash Dhan Rai as necessary party, was assailed for the very reason that Ash Dhan Rai was not the recorded owner of the suit land at any point of time and that the payment of the land compensation to him by the Respondents-Defendants without following the due process of law did not confer upon him or his legal heirs and successors any right and, as such rightly not impleaded.

(vii) On the findings on issue No. 6, i.e., whether the suit is barred by Section 34 of the Specific Relief Act, 1963, it was submitted that as the Appellant-Plaintiff was already recorded as the owner of the suit land in the revenue records, relief for a decree of title was not sought for being unnecessary, and restricted himself in praying for decrees for possession, mesne profits/damages along with permanent and mandatory injunctions. The finding on the issue by the Trial Court was bad as it had failed to give any reason in holding that the suit was not maintainable under Section 34 of the Specific Relief Act.

(viii) So far as the findings on issues No. 7 and 9 are concerned, it would be sufficient to note that those were assailed on the basis of the very facts and evidence already discussed above and, therefore, we need not delay ourselves on those to avoid being repetitive.

(ix) On issue No. 8, i.e., whether the Appellant-Plaintiff had any right and title over the suit land by way of inheritance, succession, sale, gift, etc., it was reiterated on behalf of the Appellant-Plaintiff that in view of the documentary evidence Exhibits 7 (collectively), 14 and 16 considered along with the depositions of P.W. 1, D.W. 2 and D.W. 3, it stood established that the Appellant-Plaintiff had inherited the suit land from his grandfather, Kumba Dal Rai, legal heir and successor of the original owner of Sari Devi Rai. That the Respondents-Defendants on the other hand, had failed to show any other person other than the Appellant-Plaintiff having right, title and interest over the suit land either by inheritance or by succession. It was thus submitted that the impugned judgment was liable to be set aside, the Trial Court having failed to appreciate glaring evidence, both oral and documentary.

5(i). Appearing on behalf of the Respondents-Defendants, Mr. J.B. Pradhan, Learned Additional Advocate General, would first seriously raise the question of the suit being barred by the law of limitation and as being hit by the principle of waiver, acquiescence and estoppel. It was submitted that when the Appellant-Plaintiff was in the knowledge of the fact that he had been dispossessed of the suit land in the year 1985, it was not understood as to how the suit was filed only in the year 2008, i.e., about 23 years after such dispossession. He would urge that from the very pleadings contained in paragraph 7 of the plaint, it was manifest that the Appellant-Plaintiff was taking conflicting stands in as much as when it had been pleaded that the cause of action for filing the suit first arose when the Respondents-Defendants trespassed over the suit land and dispossessed him therefrom, at the same time plea has been taken of the Respondents-Defendants having played fraud upon him in mis-representing that the suit land belonged to the Government.

(ii) It was urged that the plea of fraud played upon him which the Appellant-Plaintiff purportedly learnt only in the year 2006 is a device to overcome the bar of limitation as would be manifest from paragraph 9 of his replication where it has been clearly averred that the Appellant-Plaintiff was in active physical possession till 1985 when he was unlawfully dispossessed by the Respondents-Defendants by their illegal acquisition of the suit land without following the process of law and construction of building thereon without his permission. He submits that the suit is clearly barred by the law of limitation having been hit by Articles 64 and 65 of the Limitation Act, 1963.

(iii) He also drew our attention to the portion of the evidence of P.W. 1, Dawa Karma Lepcha, the constituted attorney of the Appellant-Plaintiff, where he has reimphasised that the Appellant-Plaintiff was in active physical possession of the suit land until 1985 when he was unlawfully dispossessed by the Respondents-Defendants and then raised constructions. That the falsity of the Appellant-Plaintiff''s case is revealed by the fact that from the evidence of the P.W. 1 the corresponding plots number of the suit properties as per the 1950-52 survey operations was ''89'' but, in the plaint it is stated as being plots No. 21, 22, 23 and 29.

(iv) As per the Learned Additional Advocate General, it is undisputed that the original land owner of the suit properties was one Sari Devi Rai, daughter of Nayapatey Rai of Chumlok Block, the predecessor-in-interest of the Appellant-Plaintiff and the deceased Ash Dhan Rai. That the suit properties fell in the share of Ash Dhan Rai through his grandfather, Shanka Lal Rai and father Krishna Bir Rai, a fact that stands established from Exhibit ''A'' being a certified copy of the Khatiyan Parcha in respect of the holdings of Shanka Lal Rai, revealing mutation of plots No. 21, 22, 23 and 29 in favour of Ash Dhan Rai vide File No. 1(53)82-83, serial No. 228 dated 14-02-1982. The Appellant-Plaintiff was unable to contradict this document except to state that the Respondents-Defendants had failed to produce the file mentioned therein in which the mutation proceeding had been purportedly carried out. It was urged that the suit land being recorded in the name of the Appellant-Plaintiff was a result of an error committed in the survey operations and that such erroneous entry did not convey any right, title and interest in favour of the Appellant-Plaintiff.

(v) Referring to the note sheets Exhibit ''M'' (collectively), it was the submission of the Learned Additional Advocate General that the process of acquisition of the suit land was carried out legitimately on the basis of a requisition made on behalf of the Respondent-Defendant No. 3 to the Respondent-Defendant No. 2 and that Ash Dhan Rai, the owner, had agreed in writing to sell the land and accept the compensation fixed by the Government. The said letter of consent also contained recommendation of the Area panchayat duly countersigned by the MLA of the Constituency. It was urged that based on the requisition, the surveyor, Kapil Gurung, D.W. 2, had visited the spot and surveyed the land in presence of the owner Ash Dhan Rai which at that time was under cultivation of the ''kutia'' (cultivator) Dhal Bahadur Tamang, D.W. 3. D.W. 3 in his evidence, has deposed unerringly that plots No. 21, 22, 23 and 29 were mutated in the name of the owner Ash Dhan Rai from the name of one Sari Devi Rai, daughter of Nayapatey Rai vide File No. 1(53)82-83, serial No. 228 dated 14-02-1982. This part of his evidence could not be contradicted by the Appellant-Plaintiff.

(vi) It has also come in his evidence that out of the 4 (four) plots, the entire area constituting plot No. 21 measuring 0.008 acre, 0.15 acre out of plot No. 23 and 0.10 acre out of plot No. 22, i.e., 0.33 acres in total, had already been utilised by the P.W. D. for the purpose of construction of roads. Mr. Pradhan submits that the mutation of the suit land dated 14-02-1982 from the name of Sari Devi Rai to that of Late Ash Dhan Rai was never challenged. D.W. 2, has categorically denied that the document Exhibit ''A'' is a false document. These facts have, as per the Learned Counsel, been fully corroborated by D.W. 1, the Veterinary Officer under the Respondent-Defendant No. 3. The fact that Ash Dhan Rai (since deceased) was the owner of the suit land is also supported by D.W. 3, Dal Bahadur Tamang, the cultivator in respect of the suit land as it has come in his evidence that he was present during the survey of the suit land conducted by the Head Surveyor, Kapil Gurung, D.W. 2 and that the Appellant-Plaintiff was a close relative and a neighbour of the seller, Ash Dhan Rai (since deceased).

(vii) It was pointed out that from the evidence of P.W. 1, the constituted attorney of the Appellant-Plaintiff, it has also been revealed that the land of Late Sari Devi Rai were partitioned between the grandfathers of the Appellant-Plaintiff and the deceased Ash Dhan Rai and that those shared common boundaries being contiguous. Thus, as per him, it was difficult to accept that the Appellant-Plaintiff was ignorant of the acquisition of the suit land in the year 1985.

(viii) It was submitted that the foundation of the case of the Appellant-Plaintiff was the entry in the new revenue records of 1978-80 wherein the name of the Appellant-Plaintiff has been entered in the relevant column as the owner of the suit properties. Relying upon the decision of Smt. Sawarni Vs. Smt. Inder Kaur and Others, and Union of India (UOI) and Others Vs. Vasavi Co-op. Housing Society Ltd. and Others, , he would urge that such entry being quite erroneous could not confer any right, title and interest over the suit land in favour of the Appellant-Plaintiff.

(ix) It is then submitted that the suit suffered from a fatal defect in as much as the Appellant-Plaintiff has failed to implead the legal heirs and successors of the deceased Ash Dhan Rai. They were necessary parties as the Appellant-Plaintiff was claiming ownership and possession over the suit land in conflict to their interest. Thus, there being no infirmity in the impugned judgment, the Appeal was liable to be dismissed.

6(i). I have considered the pleadings, oral and documentary evidence and the rival submissions put forth by the Learned Counsel for the parties.

(ii) As could be made out from the pleadings and the evidence, the sole basis upon which the Appellant-Plaintiff seeks to claim ownership over the suit land is the entry in the revenue records prepared during the survey operations of 1978-80. Stand of the Appellant-Plaintiff is that the necessity to seek for a declaration of title or even confirmation of title over the suit land was not felt necessary in view of categorical entry in the revenue records Exhibits 14 and 16 the genuineness of which, as per the Learned Counsel for the Appellant-Plaintiff, was confirmed by the Head Surveyor, Kapil Gurung, D.W. 2 thereby leaving no scope for it being impeached. There can be no doubt that Exhibits 14 and 16 show that the name of the Appellant-Plaintiff has been entered as the owner in the relevant column but, those alone do not appear to support his claim that he is indeed the owner. It is a settled position of law that entry in the revenue records is not an absolute proof of title. It is at best a rebuttable proof. The facts and circumstances that shall follow hereafter shall establish that Respondents-Defendants have been able to successfully rebut the entry in those Exhibits.

(iii) There are no doubt the revenue receipt Exhibit 7 (collectively) that were produced by the Appellant-Plaintiff to prove that he had been paying the land revenue for the suit land. However, apart from the fact that many of the revenue receipts also appear to be in respect of certain land standing in the names of Sari Devi Rai and Sukhbir Rai in the old survey record of 1950-52 and, also the Appellant-Plaintiff after the year 1984, reflecting varying amounts of revenue in relation to the receipts against each of them, there is no mention of any plot numbers in any of those.

(iv) If the case of the Appellant-Plaintiff that the receipts were for the revenue paid by him in respect of the suit land is to be accepted, the revenue charged ought to have been identical in all the receipts and his name ought to have been entered as the one upon whom the revenue was charged. However, on a close examination of Exhibit 7 (collectively) consisting of 58 receipts, I find that apart from those being bereft of plot numbers, 24 (twenty four) of them for the years commencing from 1950 to 1985 are in the name of Sari Devi Rai for about Rs. 9/- uniformly except for two years drawn in 1950; 24 (twenty four) are in the name of Sukhbir Rai which are uniformly @ 0.77 paisa for the period 1979 to 1985, @ 0.66 paisa for the period 1961 to 1978 and 0.88 paisa for the years 1959 and 1960; and the rest of the 10 (ten) receipts are drawn in the name of the Appellant-Plaintiff for varying amounts for the period commencing from 1986 to 2008. It is, therefore, quite clear that the Appellant-Plaintiff has not been honest in claiming that it was he who had been paying the revenue and, that all the revenue receipts Exhibit 7 (collectively) were in respect of the suit land.

(v) Even the evidence of P.W. 1, the constituted attorney of the Appellant-Plaintiff, appear to be contrary to the case of the Appellant-Plaintiff in as much as it has come in his evidence that the old plots number of the suit land is plot No. 89 and not 21, 22, 23 and 29 as asserted in the plaint. It has come in his cross-examination that the land of Sari Devi Rai were partitioned between Late Kumba Dal Rai and Late Shanka Lall Rai, grandfathers of the Appellant-Plaintiff and Late Ash Dhan Rai respectively. He was, however, unable to state the extent of the shares received by each of them and admitted that none of the documents in respect of the said properties had been filed. It is also in his evidence that late Sari Devi Rai owned 8 (eight) plots of land as per 1950-52 survey records at Chumlok Block of which 4 (four) plots each were divided between Kumba Dal Rai and Shanka Lall Rai, the respective grandfathers of the Appellant-Plaintiff and Late Ash Dhan Rai and, further that the properties are contiguous and are situated at Chumlok Block.

(vi) In his cross-examination this witness has admitted in most categorical terms that the land indicated in the letter dated 29-05-2008 issued by the SPIO (II), Department of Animal Husbandry, Livestock, Fisheries and Veterinary Services, in reply to an application under RTI Act, Exhibit 12; document at serial No. 18.87 which is a copy of Exhibit ''F'', i.e., letter of the Senior Land Record Officer, Land Revenue Department, Government of Sikkim, addressed to the District Collector, South District, Namchi, pertaining to payment of compensation in respect of the suit land prepared in the name of Ash Dhan Rai and Dal Bahadur Tamang, D.W. 3; document 18.88, i.e., copy of Exhibit ''I'' which is a letter written by the Revenue Officer, South District to Senior Land Record Officer, Land Revenue Department, Government of Sikkim submitting the stamped receipt of payment of compensation; document 18.89 which is a copy of the original cash receipt of compensation by Late Ash Dhan Rai, Exhibit ''G''; document 18.90 which is a copy of receipt of compensation by Dal Bahadur Tamang, Exhibit ''H'' and, document 18.91 being a copy of the Exhibit ''D'', i.e., the assessment of land compensation prepared in the name of Ash Dhan Rai and D.W. 3 in respect of the suit properties, all pertain to the transaction of the suit land between Late Ash Dhan Rai and the Respondent-Defendant No. 3. Under such admitted position, there is no reason to doubt the genuineness of the note sheets ''M'' series (collectively) filed by the Respondents-Defendants which record in detail the procedure followed while acquiring the land by the Respondent-Defendant No. 3 through Respondent-Defendant No. 2 as well as the various correspondences exchanged between them and, the payment of compensation to Ash Dhan Rai and the cultivator, Dal Bahadur Tamang, D.W. 3.

(vii) The fact that plot No. 89 stood recorded in the name of the father of the Appellant-Plaintiff, Sukhbir Rai, is apparent from Exhibit 6 being the Parcha Khatiyan in respect of that land. Exhibit 4 appears to be another Parcha Khatiyan in respect of the same plot No. 89. This, as per P.W. 1, is the old plot number pertaining to suit properties. Apart from this, there is not even a shred of evidence to support the Appellant-Plaintiff''s case. Except for the documents discussed earlier and the oral evidence of the constituted attorney, P.W. 1, Dawa Karma Lepcha, no other credible documentary evidence or witness could be produced by him in support of his case.

(viii) By referring to the evidence of D.W. 2, it was pointed out that admittedly no notice was issued to the Appellant-Plaintiff with regard to the acquisition of the suit properties and that the acquisition was carried out in the year 1985 on the basis of the survey records of 1950-52 when vide Notification No. 991/DDLR dated 17-01-1984 issued by the Land Revenue Department, Government of Sikkim, the old survey records ceased to be operative. It was also pointed out that the mutation of the suit land in the name of Ash Dhan Rai vide Exhibit ''A'' was carried out in the year 1982, i.e., after survey operations of 1978-80. But these, in my view, do not detract from the fact that the land was indeed acquired by the Respondent-Defendant No. 3 from Late Ash Dhan Rai.

(ix) Exhibit ''A'' is a certified copy of the Parcha Khatiyan of survey record of 1950-52 issued by the Revenue Officer/AD, Land Revenue and Disasters Management Department in the Office of the District Collectorate, South Sikkim at Namchi who is the lawful custodian of such records. No cogent reason has been put forth on behalf of the Appellant-Plaintiff as to why it should not be accepted except to point out insignificant aspects of it. The document clearly indicates that plots No. 21, 22, 23 and 29 stood recorded in the name of Late Ash Dhan Rai, son of Late Krishna Bir Rai who in turn was the son of Shanka Lall Rai. The mutation of the land appears to have been affected as a consequence of two orders dated 14-02-1982 as would appear from the entry in the relevant column. Under such circumstances, I do not find any reason as to why document Exhibit ''A'' should not be accepted as genuine. As the old revenue records of 1950-52 were still in operation in the year 1982 having regard to the fact that it ceased to have effect only from the date of the Notification No. 991/DDLR which is 17-01-1984, there was nothing wrong in the mutation having been carried out in the old survey record.

(x) Ideally the Appellant-Plaintiff ought to have been given notice during the acquisition proceedings as the suit land stood recorded in his name. But the fact that he did not object to the acquisitions for which undeniably a detailed survey was conducted in presence of the owner, Ash Dhan Rai, and the cultivator, D.W. 3 and a host of Officers and the Panchayat of the area unerringly leads me to conclude that the Appellant-Plaintiff was aware that the suit land did not belong to him but to Ash Dhan Rai. This stand is reinforced by the fact that suit land was adjacent to his own land and that they were closely related and living as neighbours in the same area.

(xi) Assuming that he was not aware of the survey, it was expected as a natural course of human conduct that he would raise serious objections when the Respondent-Defendant No. 3 commenced with the construction work but, undisputedly he did. In a tiny hamlet like Chumlok which is thinly populated, words spread very fast of any happening. Considering this with the admitted position as revealed from P.W. 1 that the documents 18.87, 18.88, 18.89, 18.90 and 18.91, pertained to the entire gamut of the proceedings of the acquisition of land, it is difficult to accept that the Appellant-Plaintiff was unaware of the acquisition and the construction of the buildings on the suit land by the Respondent-Defendant No. 3, particularly, when it is his specific case that he was in active physical possession of the suit land in 1985 when he was illegally dispossessed by the Respondents-Defendants.

(xii) For these reasons, plea of concealment, fraud and mis-representation set up by the Appellant-Plaintiff also does not appear to be convincing. I am inclined to agree with the submission of the Learned Additional Advocate General that the plea has been set up only to get over the bar of limitation. The suit appears to be exploratory filed as a chance taking advantage of the wrong entry in the new revenue records of 1978-80.

(xiii) Mr. Eklovya Rai Nagpal, Learned Advocate for the Appellant-Plaintiff, addressed us at length on Section 17 of the Limitation Act, 1963, to urge that the suit was not barred by the law of limitation as the Appellant-Plaintiff discovered the fraud played upon him by the Respondents-Defendants only in the year 2006 when it was discovered for the first time that the suit land actually did not belong to them but to him and, that it had been acquired from Late Ash Dhan Rai who was not the real owner. The following decisions were also cited by him in support of this contention:--

"(a) Swarnamoyee Dasi v. Probodh Chandra Sarkar and Others : AIR 1963 Cal 253;

(b) Bipin Vadilal Mehta v. Ramesh B. Desai : (1996) 3 Gujarat Law Reporter 147;

(c) In Re: Marappa Goundar, ; and

(d) Madan Lal and Another v. Rajesh Kumar (deceased) and Others : (2005) 141 Punjab law Reporter 466."

(xiv) It was reiterated that since the Appellant-Plaintiff came to learn of the fraud played on him by the Respondents-Defendants only in the year 2006, the period of limitation commenced from that year. Therefore, the suit having been filed within 12 years after the discovery of the fraud, it is within time. The decisions cited by the Learned Advocate no doubt set out the settled position on the application of Section 17 of the Limitation Act but, in the facts and circumstances of the present case as alluded to earlier, those do not appear to be of any assistance to the Appellant-Plaintiff. Even Section 17 of the Limitation Act contemplates due diligence when it provides that the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it. We have already noticed that from what appears in the pleadings contained in paragraph 4 of the plaint and paragraph 9 of the replication as well as in paragraphs 10 and 12 of the affidavit of evidence of P.W. 1, the sole witness for the Appellant-Plaintiff, the Appellant-Plaintiff believed that he was the owner of the suit land of which he was in active physical possession until he was allegedly dispossessed of it unlawfully by the Respondents-Defendants in the year 1985. When the Appellant-Plaintiff was in the knowledge of the dispossession way back in 1985, it is difficult to accept that he discovered the alleged fraud only in the year 2006, i.e., after 11 long years. The plea thus, calls for outright rejection.

(xv) It is also a trite position that a Plaintiff has to succeed on his own strength and not on the weaknesses of the other party. As noted earlier, the entry in the new survey record in respect of the suit land in the name of the Appellant-Plaintiff is not supported by any other evidence. I find it rather to the contrary. Efforts on the part of the Appellant-Plaintiff to rely upon certain stray sentences in the cross-examination of D.Ws 2 and 3 and minor contradictions in the defence evidence tantamount to seeking support on the perceived weakness in the defence case which in any case does not appear to be so. Considering the preponderance of evidence, I find that it weighs heavily in favour of the Respondents-Defendants.

(xvi) There is another aspect of the case which is quite curious. The suit appears to have been entirely pursued by the constituted attorney Dawa Karma Lepcha. On a perusal of the special power of attorney executed by the Appellant-Plaintiff, no reason has been given as to why he was appointed so by the Appellant-Plaintiff. On 16-02-2015 when the final arguments in this Appeal was heard being for the second day, the Appellant-Plaintiff was physically present before us. Even the plaint and rest of the applications are found to have been verified and signed by the constituted attorney. No reason has been given as to why the Appellant-Plaintiff did not sign on his own. It was also not explained as to why he did not enter the witness box to depose on facts pertaining to the intimate details of his family and their property disposition. This gives rise to serious doubts on the bona fides of the suit that calls for an adverse inference being drawn against the Appellant-Plaintiff.

(xvii) In view of the aforesaid findings which goes to the root of the case, I do not find it necessary to deal with the other questions and issues which, in my view, would be redundant and of no consequence to the result of the case.

For the aforesaid reasons, I do not find any infirmity in the impugned judgment of the Trial Court.

In the result, the Appeal is dismissed.

No order as to costs.

A copy of this judgment and the original case records be transmitted to the Court of the District Judge, South Sikkim at Namchi, for its record.