RSA/1/2004 of Dikila Bhutia Vs Kazimit Lepcha on 22 November 2004

JUDGMENT

The unsuccessful plaindff in both the fora is the appellant in tlds second appeal.

2. She filed the suit against the respondent for declaration of title in respect of the suit land, recovery of possession of the same and forother consequendal reliefs. Her case is that she purchased a vacant piece of land measuring .0500 hectares (schedule `A') bearing plot no. 540/1243under khatian no.226 sitiiated at Upper Thainbong Block, Sombaria,West Sikkim for consideration of Rs.24,000/- vide registered sale deeddated 13.11.1992 from the respondent's father Loden Tshering Lepcha.After registration of the sale deed the vendor handed over khas possessionof schedule `A' land to her which was duly mutated in her name and thekhatian parcha was also prepared in her name. She had been reguladypaying land revenue in respect of the same land. She has been in peacefulpossession and enjoyment of the land untl the third week of August,1996 when the respondent encroached upon a portion of schedule `A' landmeasuring 35ft. x 40ft. qereinafter referred to as the "suit land") andstarted digSng earth for pulpose of laying fqundafion for a pemanentstnicture. The appellant could know about such encroachment when herrelatives at Nanchi reported to her. The appellant approached therespondent and requested her not to proceed ahead with the constructionwork over the suit land. hitially she stopped constniction work but laterwhen she cane back to Namchi the respondent again resumedconstruction work and illegally coustnroted a toilet over the suit landalthough she has no richt, title or interest over it.

The respondent in her witten statement denied the allegations ofthe appellant. Her case is that she is the absolute owner of schedule `A'land which was given to her as `daljo'. The sale deed dated 13.11.1992 isa false document because the column "advance money" was kept blank,the thumb impression of the vendor was forged, there was no signatureon its reverse side and the vendee did not give `her identity properly.

The trial Judge dismissed the appellant's suit by recording the following findings:

(i) The sale deed in question is not a valid document because the registering authority failed to conduct enqiiiry to ascertain themarital status of the vendee nor about the source of her income for purchase of the land as required under officer order 105/IJR

dated 25.2.1961.

(ii) The area indicated in the sale deed differs from actual physical possession.

The appeal filed on behalf of the appellant before the District Judge metwith the same fate. The lower appellate Judge dismissed the appealholding that the sale deed is not a valid document as it was registeredwithout complying with due procedure of law.

4. At the tine of admitting this appeal the following substantial questions of law were fomulated:

"1. In view of the fact that the Transfer of Property Act,1882 has come into force in the State of Si]dim since1.9.1984, whether the procedure laid down in officeorder dated 25.2.1961 is required to be followed forgetting the sale deed registered."1882 has come into force in the State of Si]dim since1.9.1984, whether the procedure laid down in officeorder dated 25.2.1961 is required to be followed forgetting the sale deed registered."

"2. Wrme Article 371Fq{) of the Cousrfution 5f Indiaprotects only the laws in force in Sikkim immediatelybefore the appointed day; whether Office Order No.105n,R dated 25.2.1961 being not a law in force inSikkim prior to the appointed day is also protected andhad to be complied with before redstration of a saledeed after the appointed day (in 1992)."protects only the laws in force in Sikkim immediatelybefore the appointed day; whether Office Order No.105n,R dated 25.2.1961 being not a law in force inSikkim prior to the appointed day is also protected andhad to be complied with before redstration of a saledeed after the appointed day (in 1992)."

It is relevant to mention here that the lower appellate Judge has not recorded any specific finding with regard to the execution of the saledeed althoug]i he has noted the rival submissious of the parties in paragraphs 7 to 16 of the imprgnedjudgment. It is therefore necessary todetemine the said issue of fact which is pemissible under section 103CPC.

Exhibit P is the registered sale deed. It was executed on10.8.1992 and registered on 13.11.1992. Perusal of the said documentwould show that the vendor (father of respondent) sold the landmentioned therein (schedule `A'). to the appellant for consideration ofRs.24,000/-. The extent of the land and its boundaries with khatian plotnumber have clearly been recited therein. The intention Of the vendor wasapparent that with the registration of the land, the title thereof passed onto the vendee i.e. the appellant. Section 54 of the Transfer of PropertyAct, 1882 provides that transfer of ownership by way of sale can be madeonly by a registered instrument in case of immovable property whosevalue would be Rs.100/- and upwards. It is the case of the appellant thatshe purchased schedule `A' land from Loden Tshering Lepcha (father ofthe respondent) as per erfubit P (sale deed) and after retistration thevendor handed over possession of the land. PW-2 is one of the attestingwitnesses to the sale deed. He proved his signature exhibit P-1.Athereon. PW-3 is another attesting witness. He too proved his signatureexhibit P-1.C on the sale deed. He stated that exhibit P.D. is the LTI ofLoden Tshering Laphca. The respondent tied to throw dobbt as towhether the sale deed was executed by Loden Tshering Lepcha byshowing some documents signed by Loden Tshering Lepcha whereas inthe sale deed exhibit P he had put his LTI. This controversy is of littleconsequence in view of the fact that the son of the vendor, D.W.- 4 had

put his signature on the sale deed in the presence of his father. There is nodispute that the sale deed was registered vide file no.(4)92-93 which wasproduced by the Sub-divisioml Magistrate, Soreng @W-9). At this stagesome contemporaneous documents proved by the appellant in dealingwith the sale transaction may be noticed. E2inibit P-1 is the moneyreceipt (dhan receipt) executed by the vendor in token of receipt ofRs.10,000/- as advance towards part-payment of the price of the said land.Exhibit P-2 is another money receipt executed by the vendor wherein hementioned that the balance amount out of the consideration amount ofRs.24,000/-was received by him. h view of what has been stated abovethe conclusion is inesistible that Loden Tshering Lepcha, father of therespondent sold schedule `A' land in favour of the appellant by executingsale deed, erfubit P.

7. Both the courts below have declared the sale deed invalidbecause of non-compliance of the procedure laid down in the office orderno. 150thR dated 25.2.1961 which inter alia requires that in a case wherethe vendee is a woman the registering authority has to make inquiry as toher marital status as well as her source of the consideration amount. Therespondent has however, in her whtten statement, not pleaded the allegednon-compliance of the aforesaid order. In absence of any such pleadingthe courts below erred in law in considering the alleged non-observance ofthe procedure laid down in the office order. Whether the procedure laiddown in the office order was complied with or not is a question of fact.Had it been pleaded in the written Statement the appellant could havetaken a particular stand on that issue. Shri Moulik's contention is that the procedure laid down in the aforesaid office order is nothing but a sort ofguideliiie and is not relevant for the sale of the schedule `A' land whichwas made in terms of the provisions of the Transfer of Property Act, 1882which has been in force in Sikkim since 1.9.1984. It is well-settled thatprocedure is a means to sub-serve the ends of justice. It is a tool used toachieve justice and is not used as booby trap to obstruct the path ofjustice. The counsel appearing for the respondent has not been able toshow any provision of the relevant office order stating that non-compliance of any of its provisions by the registering authority wouldautomatically entail the sale deed invalid. h atsence of any such rule, Iam inclined to hold that the sale deed in question cannot be declaredinvalid merely because the registering authority did not comply with someof the provisions of the above office order.

8. In any case there appears to be substantial compliance of theprocedure laid down in the office order 105thR dated 25.2.1961. It is notin dispute that at the time of the execution of the sale deed the appellantwas unmarried. In the sale deed the vendee (appellant) was described as`Sushri' which means unmarried and daughter of N.C. Bhutia. Thereforethere was no legal prohibition for her to purchase the land from the fatherof the respondent 7-;zczsmzfcfe as sale is pemiissible amongst the personsbelonging to Bhutia and Lepcha community. The Sub-divisionalMagistrate who produced the relevant record dealing with the registrationof exhibit P was examined as DW-9. He deposed that he was not theredstering authority during the relevant period. He admitted that duringhis tenure as Sub-divisional Magistrate he did not remember to have

followed the procedure laid down in office order no.105/LR dated25.2.1961. Exhibit P-3 is the notice dated 12.8.1992 issued by the sub-registrar, Soreng calling upon all and sundry to file any clain or objectionto the sale proposed by the father of the respondent in favour of theappehant. Pursuant -to the notice no objection was filed by the vendor.There was no other objection filed to the notice. For the reasonsmentioned above I an of the opinion that exhibit P was duly executed andwas registered according to law. The appellant derived her title in respectof schedule `A' land on the basis of the said sale deed.

9. The aforesaid conclusion answers to the question no.1fomulated. In view of what has been mentioned above, it is notnecessary to examine the second question of law (supra).

10. It is the case of the respondent that the suit land does notfom part of schedule `A' land covered under the sale deed. But from thetrend of cross-examination of PW-2 and PW-3 it appears that the suitland was pat of schedule `A' land. To the suggestion made to PW-2 inthe cross-examination, he stated "It is not a fact that late Loden TsheringLepcha had sold land measuring soft. x 50 ft. only of the suit land sold,land measuring .0500 hectares." PW-3 in his cross examination alsostated "It is not a fact as per Ext.P and Ext.P.1, Iute Loden TsheringLepcha sold only land measuring 50ft x 50 ft." Had it not been the case ofthe respondent that the suit land was part and parcel of the schedule `A'land no such suggestion would liave been thrown at PWs 2 and 3. Fromthis it follows that the respondent admitted sale of some land out ofschedule `A' land to the appellant. It is the case of the respondent that no land other than schedule `A' land was the subject matter of saletransaction. If there was any other sale between the parties other than theland covered under exhibit P the respondent could have produced thesame which she did not do. In the circumstances, I am inclined to holdthat the suit land forms pat of schedule `A' land. Since the appellant hasbeen dispossessed she is entitled to recover the same by evicting theperson who is in occupation of the same.

11. In the result, the judgment and decree of both the coutsbelow are hereby set aside. The appellant's suit is accordingly decreed infull. Appeal is allowed. Parties shall bear their costs through out.

Dictation taken&typed by me.Tshering Dolkar ( R.K.Chiefj2Z.||.2004