Tashi Dawa vs Keshari Pradhan And Others

Meenakshi Madan Rai, J

The Appellant and the Respondents both lay claim to the suit property, the former by way of a Gift Deed, allegedly executed by the original owner of the property in his favour and the latter by claiming adverse possession, merely by virtue of having been in occupation of the premises allegedly for about seventy years and in the same breath by a contrary alternative claim of an oral gift made to them, in the year 1980, by the then Chogyal of Sikkim.

The Appellant/Plaintiff had filed a “Suit for Eviction, Recovery of Possession and Mesne Profits”, against the Respondents/Defendants before the Learned Trial Court, claiming that one Prince J. T. Namgyal had gifted him a portion of land bearing plot no.1227/1970, situated at Tibet Road, Gangtok, along with an old double storied wooden house, vide the “Gift Deed”, Exhibit 4, dated 19-11-1999, registered in the year 2000 and described accordingly in the Schedule to the Plaint. The Respondents were in possession of one portion of the upper storey of the wooden house as tenants. On registration of the Gift Deed, the Appellant requested the Respondents to vacate the premises to enable him to demolish the dilapidated structure and raise an RCC building for his bona fide use. That, as none of the Respondents were residing in the suit premises, they agreed to vacate by December, 2005 but failed to do so and thereby became trespassers on the property from 01-01-2006. The Appellant sought eviction of the Respondents from the suit premises, recovery of ₹ 81,000/- (Rupees eighty one thousand) only, as mesne profits from 01-01-2006 to 31-03-2008 @ ₹3,000/-(Rupees three thousand) only, per month, mesne profits @ ₹ 3,000/-(Rupees three thousand) only, per month, from 01-04-2008 until final recovery, along with other reliefs.

(i) The Respondents contesting his claims, in their written statements sought dismissal of the suit which allegedly lacked proper identification of the schedule property. That, their possession of the suit premises for more than 70 years confers on them the right, title and interest thereon by way of adverse possession. That, the suit property in fact belonged to the “Private Estate” and as ownership of such property was yet to be decided by the Government, J. T. Namgyal the Donor, was not the owner of the property and thereby incompetent to alienate it. That, the Gift Deed document, Exhibit 4, was dehors the provisions of the Transfer of Property Act, 1882, (hereinafter, the “TP Act”), making the Gift redundant. The bona fide requirement and the dilapidated condition of the wooden house were denied as also the claim that the Appellant was a Sikkimese Tribal. It was averred in their Counter-Claim inter alia that not only were they owners by adverse possession for seventy years but the suit premises was orally gifted to them by the then Chogyal in the year 1980. The suit is also barred by res judicata as Eviction Suit No.10 of 1996 (sic, Eviction Suit No.11 of 1996) filed by J.T. Namgyal on the same grounds, against the same parties was dismissed in default, hence the Plaintiff cannot put forth the same pleas in a new Suit. The Respondents sought a declaration that they are the owners of the property by way of adverse possession and in the alternative as owners in terms of the oral gift.

Based on the pleadings of the parties, the Learned Trial Court settled four issues for determination and took up Issue No.1 first for consideration and determination viz;“Whether the Plaintiff is the owner of the suit property, if so, whether the suit property was legally registered and mutated in his name? (Onus on the Plaintiff)”. The Learned Trial Court discussed in detail the short-comings in Exhibit 4, the Gift Deed, allegedly issued by the Donor J. T. Namgyal to the Donee Appellant. Relying on Rule 10 of the “Sikkim State Rules, Registration of Document Rules, 1930” (hereinafter, the “Registration Rules, 1930”), the Court opined that the alterations and corrections in Exhibit 4 fell short of the requirement of Rule 10 of the Registration Rules, 1930, as erasures or alterations on the document must be attested by the parties to it with their signatures before acceptance for registration, which was not complied with in Exhibit 4. That, the TP Act which has been enforced in the State requires two attesting witnesses, however in the absence of express repeal of the Registration Rules, 1930, it cannot be said to be impliedly repealed. That, mere registration of Exhibit 4 would not make it valid, legal and proved, when there are clear violations and errors committed during its registration. That, the Appellant failed to examine witnesses to substantiate the fact of execution of Exhibit 4. The Appellant, besides examining himself, examined only one Nedup Pintso who did not have first hand knowledge of Exhibit 4, while another attesting witness Rinchen Bhutia had passed away, but no efforts were made to produce witnesses T. J. Namgyal and Kumar Chettri, the latter having appeared once in Court but the date stood deferred on account of his sudden ill-health and on the next date he was dropped as witness. The Appellant also did not produce the Registration Clerk, one Mohan Rai, who had processed the registration of Exhibit 4. It was next observed that Exhibit 4 only disclosed the plot number with no indication of the existence of a house thereon. That, Exhibit 5, the Mutation document mentioned that land measuring 2016 sq. ft situated at Gangtok had been mutated in the name of the Plaintiff with a tick mark appearing against “vacant land” on the document with no reference to any wooden structure on it. Thus, it remained vague as to whether the wooden structure was gifted along with the land. The Learned Trial Court went on to observe that Exhibit 6 [collectively], which includes the spot Verification report of the Head Surveyor records the date of verification as 03-01-1999, whereas Exhibit 4 the alleged Gift Deed was presented for registration on 19-11-1999, indicating that the spot Verification preceded the execution of the Gift Deed. The Court was thus inclined to note that such discrepancies along with the non-production of the concerned attesting/registration witnesses, led to an adverse inference regarding the validity and legality of the registration process. That, as the Appellant had failed to prove execution and valid registration of Exhibit 4, he cannot be deemed to be the owner of the suit premises.

(i) Issue no.4 “Whether the Plaintiff is entitled to a decree of eviction and recovery of possession including mesne profits as claimed? (Onus on the Plaintiff)”, was taken up next and it was concluded that as the Appellant was not the owner of the suit premises he could not under any title, claim eviction, recovery of possession or mesne profits.

(ii) In Issue no.3, “Whether the suit property was infact gifted to the defendant no.1 by way of oral gift by the Maharaja of Sikkim? (Onus on the defendants)”, it was found that no evidence was brought by the Defendants to substantiate their claim of oral gift by the Maharaja of Sikkim in the year 1980, the issue stood decided against the Defendants.

(iii) In Issue No.2 “Whether the claim of the defendant on the suit property as owner, by way of adverse possession is maintainable? (Onus on defendants)”, the Learned Trial Court held that the Defendants had made conflicting claims about the suit property i.e., that it was orally gifted to the family of the Respondents by the Maharaja of Sikkim in 1980 and also claimed adverse possession over the same property. That, long possession as claimed by the Respondents is not adverse possession, unless there is animus possidendi. Accordingly, the issue was decided against the Defendants. Ultimately on account of the observations made in the issues as reflected hereinabove, the Plaint and the Counter-Claim were dismissed.

Aggrieved, the Appellant approached the Court of the Learned District Judge, Special Division ─ II, at Gangtok. The Learned First Appellate Court in the first instance inter alia observed that as the Respondents/Defendants application for Cross-Appeal/Cross-Objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908 (hereinafter, the “CPC”), assailing the findings of the Learned Trial Court with regard to Issues No.2 and 3 was dismissed by the Learned First Appellate Court vide Order dated 28-12-2018, on grounds that it was filed belatedly, the findings of the Learned Trial Court on the said issues, had attained finality and the First Appeal was therefore confined to Issues No.1 and 4. This finding has not been assailed before this Court and hence no further discussion need ensue on this count.

(i) Without resettling the issues or specifically referring to any issue that was being considered, the Learned First Appellate Court embarked on a discussion on Exhibit 4, the Gift Deed. The Appellate Court alike the Trial Court found that there were erasures and alterations on the document sans attestation by parties which amounted to non-compliance of Rule 10 of the Registration Rules, 1930. However, disagreeing with the Trial Court which had opined that mere registration of Exhibit 4 would not make it valid, legal and proved, the Appellate Court relied on the decision in Satya Pal Anand vs. State of Madhya Pradesh and Others [(2016) 10 10 SCC 767] wherein it was observed that irregularity in the procedure committed during the registration process would not mean fraudulent execution or fraudulent registration of document. The Appellate Court also disagreed with the Trial Court on the aspect of gift of the wooden structure by the Donor to the Appellant and reasoned that although Exhibit 4 does not mention the concerned wooden structure, nevertheless as the Donor had intended to gift the land to the Appellant there was no reason for him to retain the dilapidated wooden structure occupied by the Respondents, which did not even fetch him good income. The Court, on the edifice of Section 8 of the TP Act observed that when an immovable property is transferred, all improvements and permanent structures standing on it and attached to the Earth would also stand transferred to the transferee unless there is any intention to the contrary.

(ii) The Learned First Appellate Court also disagreed with the finding of the Learned Trial Court that the Registration Rules, 1930 were still applicable not having been expressly repealed. The Appellate Court opined contrarily that, Exhibit 4 was executed between the Donor and the Donee in the year 1999 and was thereby governed by the TP Act and not the pre-merger laws viz., the Registration Rules, 1930, which according to the Appellate Court, governed registration and transfer of property in Sikkim only prior to the merger. That, since Exhibit 4 was not attested by two or more witnesses in terms of Section 123 of the TP Act, which is mandatory, Exhibit 4 cannot be held to be a valid document. Consequently, the Appeal was dismissed, whereupon the Appellant is before this Court.

In this Second Appeal, three substantial questions of law were formulated for determination by this Court;

(i) Whether the provisions of Article 254 of the Constitution of India are applicable to Article 371F(k) of the Constitution of India?

(ii) Whether the provisions of Sikkim Registration of Documents Rules, 1930 have been superseded by the provisions of the Transfer of Property Act, 1882 and is to be mandatorily followed?

(iii) Whether the Defendants/Respondents being third party have locus standi to challenge the Gift Deed in favour of the Plaintiff/Appellant?

Before embarking on a discussion and decision on the substantial questions of law formulated hereinabove, the peculiarities pertaining to the proceedings in the Title Suit are being delved into.

(i) The records received from the Learned Trial Court reveal that the matter was initially filed before the Court of the Learned District Judge, East and North Sikkim, at Gangtok, as an Eviction Suit, being Eviction Suit No.03 of 2008 (Shri Tashi Dawa vs. Smt. Shanti Pradhan and Others). The suit was valued at ₹ 1,50,000/- (Rupees one lakh and fifty thousand) only, and a sum of ₹ 9,000/- (Rupees nine thousand) only, was deposited as Court fees as per the prevalent Rules. On 24-11-2014, Learned Senior Counsel for the Defendants filed a Petition purportedly under Notification No.14/LD/P/2013, dated 22-10-2013, on 19-11-2014 and on 25-11-2014 the Petition was heard by the Learned Court. The Order dated 25-11-2014 inter alia reads as follows;

“………………………………………………….

Yesterday, the parties were heard on the petition purported to be filed under Notification No. 14/LD/P/2013 dated 22.10.2013 on 19.11.2014.

It is submitted by Ld. Senior Counsel for the Defendants No.1 and 3 that in view of the above-mentioned Notification, the valuation of the Suit being less than ₹ 5,00,000/- (Rupees five lakhs) only, this Court has no jurisdiction to proceed with the matter as the Suit refers to the Defendants as Trespassers and claims for mesne profit. That it is, in fact, not a Suit for Eviction under the Gangtok Rent Control Act, 1956 but a Suit against the Defendants for Recovery of Possession as they are said to be in occupation of the Suit Premises as Trespassers.

Per contra, it is submitted by Ld. Senior Counsel for the Plaintiff that the Hon‟ble High Court has observed in a matter involving Calcutta Hardware, the exact citation of which he cannot recall today, that the Court of the District Judge is also a Civil Court and is not debarred from taking up matters which are below its pecuniary jurisdiction. Ld. Senior Counsel for the Plaintiff, however, concedes that the suit is against the Defendants as Trespassers on the Suit Property and, hence, for Recovery of Possession from them and also for mesne profits. That there is, in the circumstances, no relationship of Landlord and Tenant between the parties.

………………………………………………….”(emphasis supplied)

(ii) The Learned Court in view of the afore-mentioned circumstances and the consensus arrived amongst the Learned Senior Counsel for the parties in their submissions as reflected above and in terms of the pecuniary jurisdiction prescribed in the Notification supra and further in terms of letter of this High Court bearing Ref. No.V(152)Confdl/HCS/6451, dated 13-12-2013, directing the District Courts to forward Suits of valuation of less than 6(six) lakhs to the Courts which had pecuniary jurisdiction, except eviction matters, forwarded the records of the Suit to the Court of the Learned Civil Judge, East and North Sikkim, at Gangtok, for trial and disposal as per Law. On 26-11-2014, the suit was however registered as an “Eviction Suit” in the Judicial Service Centre and the parties summoned by the Court.

(iii) Records also reveal that on 08-09-2016, in alarming contradiction to the earlier statement of Learned Senior Counsel for the Defendants that the Suit was not one for Eviction, he filed a Petition before the Court of the Learned Civil Judge, (where the matter was pending), under Order VIII (sic, Order VII) Rule 11 read with Section 151 of the CPC, seeking rejection of the Plaint on grounds that the Suit appeared to be barred by law, as it was an “Eviction Suit” as reflected in the Cause Title and the subject matter of the Plaint. That, simply calling the Defendants trespassers would not absolve the Plaintiff from proving the fact that it was not an Eviction Suit but a Suit for recovery of possession. On the other hand, the Learned Senior Counsel for the Plaintiff recapitulated that; before the Learned District Judge, the Defendants had referred to themselves as trespassers and that the Suit of the Plaintiff was for recovery of possession and not an Eviction Suit. That, the Counsel for the Defendants had agreed to the Order of the Learned District Judge dated 25-11-2014 and not sought any review/appeal of the said Order and hence, was estopped from claiming one thing at one point of time and another at a later point. The Petition under Order VII Rule 11 was rejected by the Court reasoning that the matter had already been settled by the Order dated 25-11-2014 of the Learned District Judge. The records are also revelatory of the fact that pursuant to the transfer of the Suit to the Court of the Learned Civil Judge, no fresh issues were settled for determination by the said Court in terms of Order XIV Sub-rule 5 of the CPC and the same issues settled by the Learned District Judge on 11-12-2013 were taken up for consideration and determination.

(iv) It thus becomes imperative to record here that the Learned Senior Counsel for the Respondents/Defendants cannot approbate and reprobate on the same point with the goal of gaining advantage. In Union of India and Others vs. N. Murugesan and Others (2022) 2 SCC 25, the Supreme Court held that an element of fair play is inbuilt in the aforestated principle which is a species of estoppel dealing with the conduct of a party. Having elected to submit before the Learned District Judge that the suit is not for eviction but only for recovery of possession, the Defendants being trespassers, he could not have before the Learned Civil Judge claimed that the suit was barred by law, being one for eviction. Moreover, the order of the Learned District Judge was passed on the parties reaching a consensus on the legal point that the suit was not one for eviction.

(v) Pertinently, it is to be noted that only the Court of the Learned District Judge and not the Learned Civil Judge has jurisdiction to decide Eviction Suits in view of the Gangtok Rent Control and Eviction Act I of 1956, which provides inter alia as follows;

“4. A Landlord may not ordinarily eject any tenant. When, however, the whole or part of the premises are required for the bonafide occupation of the landlord or his dependents or for thorough overhauling (excluding additions and alterations) or when the rent in arrears amount to four months rent or more, the landlord may evict the tenant on filing a suit of ejectment in the Court of the Chief Magistrate.……………………………….”                            (emphasis supplied)

(vi) A Division Bench of this High Court vide Order dated 11-05-1987 in Civil Reference No.1 of 1987 (Tekchand Agarwal vs. Prem Prakash Agarwal and Another) had observed inter alia in Paragraph 6 as follows;

“6. In view of the above position, we are of the view that the Chief Magistrate (equivalent to the Court of the District Judge) shall not henceforth accept any deposit of rent in his Court and this practice shall be discontinued forthwith.”

(emphasis supplied)

That having been settled, in Second Appeal before this Court, Learned Senior Counsel for the Appellant while addressing the substantial questions of law no.1 and 2 together submitted that both laws i.e., the Registration Rules, 1930 and the TP Act apply conjointly in the State as there is no repugnancy between Rule 7 of the Registration Rules, 1930 which deals with registration of documents and Section 123 of the TP Act which is concerned with transfer of property. To buttress this submission, reliance was placed on Vijay Kumar Sharma and Others vs. State of Karnataka and Others (1990) 2 SCC 562, which was decided with five other connected Writ Petitions. Inviting the attention of this Court to the Indian Registration Act, 1908, (hereinafter, the “Registration Act”), it was submitted that the Act provides for registration of documents, whereas the TP Act deals with transfer of immovable property. That, Section 1 of the Registration Act provides inter alia that it extends to the whole of India. That, however, as the Registration Act has so far not been extended and enforced in Sikkim, the provisions of Section 123 of the TP Act are also inapplicable to the State as elucidated in the non-obstante provision of Section 1 of the TP Act. That, if Section 123 of the TP Act is to be enforced in this State, a separate notification is required to be issued by the Government notifying such enforcement. That, the old laws i.e., those made prior to Sikkim being part of the Indian Union are protected laws under Article 371F(k). That, only in the circumstance of Article 371F(n) new legislation can be enforced in the State of Sikkim. That, in the absence of enforcement of Section 123 of the TP Act to the State, Exhibit 4 has been validly executed, there being no specific requirement of two attesting witnesses to the execution of Gift deed in the Registration Rules, 1930 which prescribes the presence of one witness for execution and registration of the Gift Deed.

(i) Justifying the reasons for non-examination of witnesses to establish the execution of Exhibit 4, it was contended that witness Rinchen Bhutia passed away, while Kumar Chettri fell ill, on account of his continuing illness the Appellant was constrained to drop him as a witness. On 28-09-2016, the Donor himself passed before the commencement of the Plaintiff‟s evidence. That, the proviso to Section 68 of the Indian Evidence Act, 1872 (hereinafter, the “Evidence Act”) states that it is not necessary to call an attesting witness in proof of the execution of any document when it is not a Will, and has been duly registered, unless the executor denies its execution. There was no denial of execution of Exhibit 4 by the Donor. This contention was buttressed by the ratio in Surendra Kumar vs. Nathulal and Another (2001) 5 SCC 46.

(ii) In the next leg of his argument, it was asserted that, the Appellant is a Bhutia and thus a Sikkimese Tribal and holds a Certificate of Identification (COI). That, Exhibit 2, the Sikkim Subject Certificate (SSC) of his father declares the holder to be a Sikkimese, of Tibetan origin, however, the word „Tibetan‟ was merely employed as reference to the Block/Area where Tibetans reside in Gangtok. That, Notification bearing No.28/LR dated 21-04-1969, relied on by the Respondents at clause (d) mentions that Tibetans may not buy land from the Bhutia/Lepcha community, however, the Notification is merely an Executive Order and lacks the protection afforded by Article 371F(k) of the Constitution. It was urged that vide the adaptation of Sikkim Laws (No.1) Order, 1975, the Sikkim Subject Regulation, 1961 was repealed w.e.f. 26-04-1975, and Sikkim Subjects became Indian citizens, in this milieu the Plaintiff was gifted the suit property in the year 1999 within the Bazaar area of Gangtok, making the Notification of 1969 inapplicable to the Plaintiff, which in any event does not debar the gift of immovable property. Relying on Kazi Lhendup Dorji Khangsarpa and Another vs. State of Sikkim and Another Writ Petition No.06 of 1988 of this High Court decided on 24-05-1989, it was emphasized that this High Court while considering a plea involving “Revenue Order No.1 of 1917”, observed that a number of registrations had been allowed at Gangtok with sale, gift deeds registered from Bhutia/Lepcha community to other communities. It was further canvassed that the Respondents being a third party have no locus standi in the first instance to challenge the Gift Deed in favour of the Appellant. That, in Muddasani Venkata Narsaiah (Dead) through Legal Representatives vs. Muddasani Sarojana (2016) 12 SCC 288, the Supreme Court has held that passing of consideration under a sale deed cannot be questioned by a third party. Similarly, the Defendants herein have no say in the matter of Exhibit 4. That, as per the requisites of the Registration Rules, 1930, the Gift Deed was registered, by the Registrar, only after the Donor appeared before him, hence, the Respondents have failed to establish their case by sufficient evidence as contemplated under Section 103 of the CPC and their claims fail.

Learned Senior Counsel for the Respondents opposed the arguments advanced on grounds that, the TP Act has been extended and enforced in its entirety in the State of Sikkim, making Exhibit 4 invalid as it is not signed by two witnesses to its execution, as required by Section 123 of the TP Act nor were the attesting witnesses examined during trial. That apart, the interlineations and alterations on Exhibit 4 were not attested by affixing initials of the executing parties, in terms of Rule 10 of the Registration Rules, 1930. This argument was buttressed by reliance on K. B. Bhandari vs. Laxuman Limboo and Another SLR (2017) SIKKIM 41, wherein this Court held that on account of non-compliance of Rule 10 of the Registration Rules, 1930, a doubt arises about the corrections in the document.

(i) It was next argued that Exhibit 4 referred only to a portion of land bearing plot no.1227 under Gangtok Block, but made no mention of a two storeyed wooden building thereon, giving rise to a nebulous circumstance as to whether the house was transferred along with the land. The attention of this Court was invited to Devi Maya Chettri vs. Mahesh Chettri and Others SLR (2020) SIKKIM 951, wherein this Court inter alia held that when Schedule „A‟ land was not transferred to the Plaintiff‟s husband, he could not have in turn transferred it to her, (Plaintiff), accordingly, Schedule „B‟ and Schedule „C‟ buildings on Schedule „A‟ cannot be claimed by the Plaintiff, as no law or custom provides that, whatever is affixed or built on the soil becomes a part of it and is subjected to the same right of property as the soil itself.

(ii) Garnering strength from Amit Kumar Shaw and Another vs. Farida Khatoon and Another AIR 2005 SC 2209, Learned Senior Counsel contended that, during the pendency of an Eviction Suit between the Donor J. T. Namgyal and Shanti Pradhan and Others, which were on the same grounds as the present suit, the Donor could not have alienated the suit property, which is thus hit by the doctrine of lis pendens under Section 52 of the TP Act. That apart, Exhibit 6 indicates that the Gift Deed was processed on 19-11-1999, whereas the Surveyor signed the Spot Verification Report on 03-01-1999, prior in time to the Gift Deed. The Surveyors report reveals that “no objection” to the Gift Deed was given on 07-04-1999, while the Donor gifted the property only on 19-11-1999, rendering the transaction suspicious and in violation of the prevalent law. The cross-examination of Nedup Pintso also clearly reveals the short comings in the Gift Deed as he has stated that Exhibit 3 was processed by Mohan Rai and not by him and he could not say whether the correct procedure had been followed for Exhibits 2, 3, 5 and 6. He also could not identify the signature of J. T. Namgyal on Exhibit 4(a) as it was not affixed in his presence. That, as the suit for Eviction (supra) filed by J. T. Namgyal was dismissed, the Counter-Claim of the Defendants/Respondents therein pertaining to adverse possession is thus deemed to have been decreed.

(iii) In the next prong of his arguments, it was put forth that the Suit of the Appellant is also hit by the doctrine of res judicata as per Section 11 of the CPC as J. T. Namgyal had filed an Eviction Suit against the same parties on the same pleas, for which reliance was placed on Daryao and Others vs. State of U. P. and Others AIR 1961 SC 1457. That, the Appellant being a Tibetan was debarred from purchasing property in Sikkim in terms of the Notification bearing No.28/LR dated 21-04-1969. That, the nationality of the Appellant is suspect as his father‟s name has been recorded in Exhibit 1 as Gandup Bhutia (Tibetan) and block Gangtok (Tibetan). In light of the arguments advanced, the Appeal deserves a dismissal with costs.

Having heard Learned Counsel for the parties, I deem it essential to firstly clear the air on the parameters the Court can navigate in a Second Appeal. In Hero Vinoth (Minor) vs. Seshammal [(2006) 5 SCC 545], the Hon‟ble Supreme Court held that inference or appreciation of facts from recitals or contents of a document are questions of fact. However, legal effects of the terms of a document, or construction of a document involving application of any principle of law are questions of law. In Sk. Bhikan s/o Sk. Noor Mohd. vs. Mehamoodabee w/o Sk. Afzal and Others [AIR 2017 SC 1243], the Supreme Court propounded that the issues regarding ownership based on interpretation of documents constitute substantial questions of law and a Second Appeal on such grounds cannot be dismissed in limine. In Kulwant Kaur and Others vs. Gurdial Singh Mann (Dead) by LRs. and Others [(2001) 4 SCC 262], the Supreme Court while discussing the scope and ambit of Section 100 of the CPC held that the Section had introduced a definite restriction on the exercise of jurisdiction in a Second Appeal so far as the High Court is concerned. That, needless to record that the object of the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives but the fact remains that, while it is true that in a Second Appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the Judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. That, however, perversity itself is a substantial question worth adjudication─what is required is a categorical finding on the part of the High Court as to perversity.

(i) On the bed rock of the principles enunciated hereinabove, and bearing in mind the limitations prescribed therein, it is now apposite to discuss the substantial questions of law.

The first question is accordingly taken up for determination. Article 254 of the Constitution of India deals with inconsistency between laws made by Parliament and laws made by the Legislatures of the States and reads as follows;

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of the States.—(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

(i) ‘Repugnancy’ as per Black’s Law Dictionary, Tenth Edition means “An inconsistency or contradiction between two or more parts of a legal instrument (such as a Contract or Statute)”. In Rajiv Sarin and Another vs. State of Uttarakhand and Others [(2011) 8 SCC 708], the Supreme Court elucidated that for repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled—firstly, there has to be a “repugnancy” between a Central Act and a State Act; and secondly, the Presidential assent has to be held as being non-existent. The appropriate test for determining the same is indeed to find out the dominant intention of both the legislations and whether in such intention both the legislations are alike or different.

(ii) The State law may be “repugnant” in any of the following ways—

(i) When there is a direct conflict between the two provisions. This may happen—

(a) where one cannot be obeyed without disobeying the other.

(b) Two enactments may also be inconsistent although obedience to each of them may be possible without disobeying the other. In other words, repugnancy is not confined only to the case where there is a direct conflict between two legislations. It may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. Repugnancy will also arise between two enactments even though obedience to each of them is possible without disobeying the other, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. In all such cases, the law made by Parliament shall prevail over a State law, under Article 254(2).

(c) The principle of repeal by necessary implication may be applied to determine repugnancy for the purposes of Article 254(2) but there can be no repeal by implication unless inconsistency appears on the face of the two statutes.

(ii) Though there may not be any direct conflict between the Union and the State Legislation, where it is evident that the Union Parliament intended its legislation to be a complete and exhaustive code relating to the subject, it shall be taken that the Union law has replaced State legislation relating to the subject.

Where repugnancy arises between parliamentary legislation and State legislation and where the legislations are with respect to matters in the Concurrent List, parliamentary legislation will predominate. When a State Act is repugnant to a Central law within the meaning of this clause, what becomes void is not the entire Act but only insofar as it is repugnant to the Central Act (subject to the doctrine of „severability‟), (which is not required to be discussed herein). [See (c) Shorter Constitution of India, Durga Das  Basu, LexisNexis, 15th Edition, Volume 2].

(iii) That, having been said, it is imperative to notice that Article 371F of the Constitution is a special Article for the State of Sikkim and commences with a non-obstante clause. For the purpose of clarity, it is essential to extract the provisions of clause (k), clause (l) and clause (n) of Article 371F hereinbelow;

“371F. Special provisions with respect to the State of Sikkim.—Notwithstanding anything in this Constitution,—

…………………………………………………………………

(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority;

(l) for the purpose of facilitating the application of any such law as is referred to in clause (k) in relation to the administration of the State of Sikkim and for the purpose of bringing the provisions of any such law into accord with the provisions of this Constitution, the President may, within two years from the appointed day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon, every such law shall have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law;

………………………………………………………

(n) the President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification;

………………………………………………………………”

(iv) The word non-obstante inter alia as per the Black’s Law Dictionary, Tenth Edition is a phrase used in documents to preclude any interpretation contrary to the stated object or purpose. Thus, the word „notwithstanding‟ with which Article 371F commences, means, notwithstanding any provision in the Constitution of India. In the State of Sikkim vs. Surendra Prasad Sharma and Others (1994) 5 SCC 282, the Supreme Court observed that Article 371F is a special constitutional provision with respect to the State of Sikkim. That, the reason why it begins with a non-obstante clause, is that the matters referred to in the various clauses immediately following required a protective cover so that such matters are not struck down as unconstitutional because they do not satisfy the constitutional requirement. While considering Article 371F(k), it was further observed that unless such immunity was granted „the law in force‟ would have had to meet the test of Article 13 of the Constitution. This being the objective, existing laws or laws in force came to be protected by clause (k) added to Article 371F. The said laws in force in the State of Sikkim were, therefore, protected, until amended or repealed, to ensure smooth transition from the Chogyal‟s rule to the democratic rule under the Constitution. Clause (l) of Article 371F in sum and substance provides for bringing the provisions of any existing law of Sikkim into accord with the provisions of the Constitution of India for which the President may within two years of the appointed day (i.e., 26th April, 1975) by order make such adaptation modification of the law by way of repeal or amendments.

(v) In Raj Kumar Rai vs. State 1979 Cri. L. J. 310 (Sikkim High Court), Bhattacharjee, J, while considering whether the Arms Act, 1959 was validly extended to Sikkim as the corresponding law being the Sikkim Arms Rules, 1962 had not been repealed at any time before such extension and enforcement inter alia observed as follows;

“15. …………………… If the provisions of Cl. (k) of Art. 371-F, read with the non obstante clause as aforesaid, are compared and contrasted with the provisions of Art. 372 (1) of the Constitution, it will be clear that though both provide for continued operation of the earlier laws, yet under Art. 372 (1), pre-Constitution laws have been allowed to operate only so far (as) they are consistent with the provisions of the Constitution and that so far as they are not so consistent, they have ceased to operate, while under Art. 371 (k) of the Constitution, the earlier Sikkim laws have been guaranteed continued operation even though they or some of them are violently inconsistent with or are shockingly violative of the provisions of the Constitution, until they are amended or repealed by a competent Legislature or other Competent authority.”                                                                                                            (emphasis supplied)

(vi) From the decisions cited hereinabove and the discussions that have ensued therein, the question of applicability of Article 254 of the Constitution of India and its applicability to Article 371F(k) thus stand soundly quelled.

With regard to the second substantial question of law, the nomenclature of the Registration Rules, 1930, reveals its purpose, the introduction to the rules speaks of its intent and provides inter alia as follows;

“REGISTRATION OF DOCUMENT IS PRIMARILY INTENDED TO GIVE SECURITY TO THE TITLES AND RIGHTS OF PERSONS PURCHASING PROPERTY OR RECEIVING SUCH PROPERTY IN GIFT OR ADVANCING MONEY ON THE MORTGAGE OF IT OR TAKING IT ON LEASE.”

(i) It is thus necessary to comprehend that the scope and ambit of the Registration Rules, 1930, is confined to the registration of documents, while the TP Act deals with property of any kind to be transferred as defined in Section 5 of the said Act viz;

“5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.”

(ii) Rule 7 of the Registration Rules, 1930 as already stated prescribes the procedure to be observed in the Registry of Deeds, which for convenience is extracted hereinbelow;

“PROCEDURE TO BE OBSERVED IN THE REGISTRY OF DEEDS

The person or persons executing the deed or his or their authorised representative with one or more witnesses to the execution of it, shall attend at the Registrar's office and prove by solemn affirmation before the Registrar the due execution of deeds upon which the Registrar shall cause an exact copy of the deed to be entered in the proper register and after having caused it to be carefully compared with the original shall attest the copy with his signature and shall also cause the parties or their authorised representative in attendance to subscribe their signatures to the copy and shall then return the original with a certificate under his signature endorsed thereon specifying the date on which such deed was so registered with REFERENCE to the book containing the registry thereof and the page and number under which the same shall have been entered therein.”

(iii) Section 123 of the TP Act reads as follows;

“123. Transfer how effected.─ For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.”

(iv) Rule 7 of the Registration Rules, 1930 (supra) indubitably does not deal with the method of execution of any Deed but merely lays down that during registration the person or persons executing the Deed, or his/their representative with one or more witnesses to the execution shall attend the Registrar‟s office. The provision makes no mention of the requirement of one witness or more witnesses to the execution of any Deed, it merely prescribes that during the registration proceeding, the executor shall be present in the Registrar‟s office with a witness or witnesses, who have witnessed the execution of the document.

(v) It is clear as day that any transfer of property under Section 123 of the TP Act, mandatorily prescribes that two witnesses should at least attest the registered instrument executed for the purpose of making a Gift Deed of immovable property, which has been signed by or on behalf of the Donor. It thus concludes that the Registration Rules, 1930 functions independently of the provisions of the TP Act in terms of the explanation hereinabove. The question of the Registration Rules, 1930 being superseded by the provisions of TP Act does not arise.

(vi) Hence, the conclusion of the Learned Trial Court that after the enforcement of the TP Act the Registration Rules, 1930 continue to be in existence having not been expressly repealed and the conclusion of the Learned First Appellate Court that the Registration Rules, 1930 ceased to operate after the enforcement of the TP Act are both erroneous interpretations of the law as the two laws operate in two separate arena.

(vii) On the extension and enforcement of the TP Act it follows that the provisions thereof have to be complied with. The Supreme Court in Gomtibai (Dead) through LRs. and Others vs. Mattulal (Dead) through LRs. AIR 1997 SC 127 inter alia held that gift of immovable property should be made only by transferring the right, title and interest by the Donor to the Donee by a registered instrument signed by or on behalf of the Donor and must be attested by at least two witnesses. That, in the absence of any registered instrument of gift and acceptance thereof by the Donee, the said property could not be said to have been legally transferred in favour of the person as the gift is not complete in the eye of law.

(viii) In Daulat Singh (Dead) through Legal Representatives vs. State of Rajasthan and Others (2021) 3 SCC 459, the Supreme Court went on to hold that Section 123 of the TP Act provides that for a gift of immovable property to be valid, the transfer must be effectuated by means of a registered instrument bearing the signature of the Donor and attested by at least two witnesses.

(ix) Exhibit 4 indeed falls foul of the mandate of Rule 10 of the Registration Rules, 1930 as the corrections made on the document at “Father’s Name” and at “Khatiyan Plot No./Nos.”, are not attested by the parties to the document with their signatures on it. Rule 10 of the Registration Rules, 1930 reads as follows;

“PROCEDURE TO BE OBSERVED IN THE REGISTRY OF DEEDS

…………………………………………………………………

All interlineations, erasures, or alterations appearing in the document must be attested by the parties to it with their signatures before such document could be accepted for registration.”

(x) As held by this Court in K. B. Bhandari (supra), should the Rule not be followed it lends suspicion to the circumstances of correction. As far back as 1936 viz; in Nazir Ahmad vs. King Emperor AIR 1936 Privy Council 253 (2) at Page 257 it was held as follows;

“…………………………..where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all……………………..”

(xi) In light of the settled position of law, Exhibit 4 is clearly not in terms of the requirement of law and such being the position it is not a valid document for the reasons discussed supra.

(xii) While addressing the argument of Learned Senior Counsel for the Appellant that although the TP Act has been extended and enforced in the State of Sikkim, the provisions of Section 123 of the TP Act were not applicable for the reason made out in Section 1 of the TP Act, it is not disputed that the Registration Act has neither been extended nor enforced in the State of Sikkim, hence the non-obstante clause of Section 1 of the TP Act requires no further consideration. Suffice it to note that the TP Act has been extended in its entirety to the State of Sikkim on 22-07-1983, vide S.O.592(E) and enforced in the State of Sikkim on 01-09-1984, vide S.O.643(E), dated 28-08-1984.

To answer the third substantial question of law, it is clear that, the Respondents/Defendants being third party did not have locus standi to challenge the Gift Deed. The Supreme Court in Muddasani Venkata Narsaiah (supra) held that it is settled law that passing of consideration under a sale deed cannot be questioned by a third party. Exhibit 4 is alleged to be a Gift Deed executed between the Donor and the Donee, its execution cannot be questioned by the Respondents who are third parties to the document.

A tangential argument pertaining to the nationality of the Appellant raised before this Court was not an issue before the Learned Trial Court or the Learned First Appellate Court consequently no issue was framed on it for determination. Nevertheless to give a quietus thereto, assuming that the Appellant‟s father may have been of Tibetan origin, vide Exhibit 2 he has been recognized as a „Sikkimese‟, vesting on him all consequential rights, regardless of his origins. Hence, in my considered opinion, a prolix discussion of this facet is unwarranted.

Learned Senior Counsel for the Appellant had raised doubts about the wooden structure on the plot of land mentioned in Exhibit 4 ever having been transferred or gifted to the Appellant. The Learned Trial Court and the Learned First Appellate Court had different opinions on this facet as already discussed. In my considered opinion, the interpretation of the Learned First Appellate Court is incorrect as a bare perusal of Section 8 of the TP Act indicates that interpretation as given by the Learned First Appellate Court is not the import of the provision. It is clear that the decision in Devi Maya Chettri (supra) relied on by Learned Counsel for the Respondent is applicable to this matter. Answering the question therein as to whether the husband of the Plaintiff could have verbally transferred the land to the Plaintiff, a Single Bench of this Court concluded, firstly, the identity of the land in dispute was not ascertainable from the documentary evidence furnished and merely because Defendant No.2 in his evidence had used the word “relinquish”, it could not have any legal effect, unless relinquishment was done in accordance with law. Such expression at best thus conveyed his wish and desire to vest the property on his brother but a wish will not transfer land to his brother or vest the same on his brother. That, Schedule „A‟ land was thus not transferred to the husband of the Plaintiff and therefore the husband of the Plaintiff who therefore could not have transferred it to his wife the Plaintiff that too without a Deed of Conveyance. It was concluded that the Plaintiff had no right, title or interest over the Schedule „A‟ land. That, so far as Schedule „B‟ and Schedule „C‟ buildings which stand on Schedule „A‟ were concerned, as the foundation of the claim in respect of Schedule „B‟ and Schedule „C‟ buildings were not established as a logical corollary the Plaintiff could not claim right, title and interest over the buildings. In the instant matter, similarly, not only does Exhibit 4 not meet the parameters prescribed by law but the document also makes no mention of the wooden structure. In the absence of proof of execution of Exhibit 4, the Court cannot resort to conjectures especially when the documentary evidence fails to substantiate the claim of the Appellant.

While considering the findings of the Courts below that the date of spot Verification preceded the registration lending suspicion to its execution, to my mind are of no consequence while dealing with Exhibit 4 as no specific law has been brought to the notice of this Court that the spot Verification cannot precede the Gift Deed, this would be missing the wood for the trees. The larger question writ large here is the non-compliance of Section 123 of the TP Act.

On the arguments of Learned Senior Counsel for the Respondents pertaining to res judicata it needs no reiteration that the plea of res judicata is a restraint on the right of a Plaintiff to have adjudication on his claim. It means “a thing adjudicated, i.e., an issue that is finally settled by a judicial decision”, and the plea must be clearly established. In the instant case, no plea of res judiciata or constructive res judicata was an issue before the Courts below nor had the Appellant an opportunity to meet the case of such plea [See Alka Gupta vs. Narender Kumar Gupta, (2010) 10 SCC 141]. The admitted case of the Respondents is that the previous suit between the Donor and Shanti Pradhan was dismissed in default and not decided on merits, thus the Counter-Claim being deemed as decreed cannot be countenanced and is an erroneous interpretation of law by the Respondents.

(i) Section 52 of the TP Act which deals with transfer of property pending suit relating thereto, was agitated by Learned Senior Counsel for the Respondents and reliance was place on Amit Kumar Shaw (supra). Records reveal that Civil Suit No.11 of 1996 renumbered as Civil Suit No.28 of 1999 (J. T. Namgyal vs. Shanti Pradhan) was pending on 19-11-1999, but dismissed in default on 07-01-2000.

(ii) Even if Exhibit 4 was executed during the pendency of the Civil Suit between the Donor and Shanti Pradhan, the observation of the Supreme Court in Madhukar Nivrutti Jagtap and Others vs. Pramilabai Chandulal Parandekar (Dead) through Legal Representatives and Others (2020) 15 SCC 731, on this aspect is extracted hereinbelow for a correct understanding of the legal perspective;

“14.……………………………………………………………

14.2. In Guruswamy Nadar [Guruswamy Nadar v. P. Lakshmi Ammal, (2008) 5 SCC 796], this Court has held as under: (SCC p. 800, para 13)

“13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.”

14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh [Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539], as relied upon by the High Court, the subsequent purchasers sought to come on record as defendants and in that context, this Court referred to Section 52 of the TP Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens. The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee i.e. the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit. In A. Nawab John [A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738: (2012) 4 SCC (Civ) 324], this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the following: (SCC p. 746, para 18)

“18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.”………………….”                                                                                                                                                                                 (emphasis supplied)

(iii) The above ratio lucidly lays down the scope and object of Section 52 of the TP Act.

(iv) Even though the arguments relating to adverse possession is not a substantial question of law, however the matter having been raised, it is imperative to reiterate that it is a settled position of law that there cannot be a claim of independent title and adverse possession at the same time which would amount to contradictory pleas. In Government of Kerala and Another vs. Joseph and Others 2023 SCC OnLine SC 961, the Supreme Court referred to and relied on the decision of Annasaheb Bapusaheb Patil and Others vs. Balwant alias Balasaheb Babusaheb Patil (Dead) by LRS. and Heirs and Others (1995) 2 SCC 543 and Mohan Lal (Deceased) through his LRS. Kachru and Others vs. Mirza Abdul Gaffar and Another (1996) 1 SCC 639 while dealing with this aspect. Relevantly, in Annasaheb (supra) it was held as follows;

“15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”

(v) In Mohan Lal (supra), it was observed as follows;

“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

(vi) Thus, in light of the above position of law, the Respondents cannot make a claim of adverse possession and in the same breath claim possession on the basis of an oral gift which vested title on them.

In light of the foregoing discussions, the Appeal deserves to be and accordingly stands dismissed.

Parties shall bear their own costs.

Copy of this Judgment be transmitted to all the Learned Courts below.

Records of the Learned Courts below be remitted forthwith.