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Judgment
The defendants are in first appeal against the judgment and decree of the District Judge, Sikkim dated 26-2-1988, directing the demolition of constructions on the encroached portion of plot No. 1040 as shown in the plan annexed with the plaint and handing over its actual possession to the plaintiffs-respondents, demolition of the fly over bridge falling within plots Nos. 1013 and 1040 as shown in the aforesaid plan and also the removal of the entire structure therefrom keeping the passage free from any obstructions for the use of the plaintiffs and their tenants. The defendants were also injuncted from making any further construction whatsoever on the passage in plot No. 1030.
The suit giving rise to the appeal was originally brought by late Mewang Palden Thondup, Namgyal, son of late Chogyal late Sir Tashi Namgyal. During the pendency of the suit, the original plaintiff died and the present plaintiff-respondents, were substituted as his legal representatives. The case of the plaintiff as per the plaint may be summarised thus: Settlement plots Nos. 1013, 1014, 1040 (part) situated at Gangtok originally belonged to late Chgyal Sir Tashi Namgyal of Sikkim as his personal properties forming part of his private estate. After his death, the properties devolved on the original plaintiff, Mewang Palden Thondup Namgyal, and after his death, the same passed on to the present plaintiffs and they have all along been in peaceful and Uninterrupted possession of the same. The original plaintiff constructed one pucca building on plot No. 1014 situated on the New Market Road, Gangtok, and let out the same to tenants. On the adjacent south of the said building, there is a private passage 12'' wide made of steps belonging to the plaintiff and on the adjacent south thereof, there is another building known as Yuthok building on plot No. 1012. The aforesaid passage was constructed and maintained by the plaintiff. Behind the aforesaid two buildings, there is a passage running across the aforesaid 12'' passage which, is a private gully (plot No. 1013) and behind the said passage there are two wooden buildings used as kitchen, latrines and godown, solely for the use of the tenants occupying the Naybazar building and Yuthok building. Settlement Plot No. 1040 (part) belonging to the plaintiff is situated on the west of the Naya Bazar Building and has all along; been in peaceful possession of the plaintiff. There is a retaining wall on the west of the aforesaid plot of land which is the boundry between the land of the plaintiffs Private Estate and the land of the Denzong Cinema Ltd., defendant No. 2. Defendant No. 1 is the Managing Director of Denzong Cinema Ltd., and is also connected with the defendant No. 3. Defendants started construction of a big pucca building for the purpose of a hotel on the land south of the plaintiff''s aforesaid land and have illegally encroached upon a portion of the plaintiffs land measuring 6,600 sq. ft., which falls on plot No. 1040. The defendants have also been illegally using the aforesaid 12'' private passage for carrying building materials from the New Market road to the building site under construction after removing "No Thoroughfare" signboards posted on both ends of the said passage and cutting barbed wire fencing. The defendants also started constructing a fly over (bridge) over the aforesaid passage connecting New Market road with the hotel building. On 18-1-1977 a notice was issued to defendant No. 1 through the lawyer of the Private Estate, requesting him not to use the aforesaid private passage and to stop unauthorised and illegal construction on the plaintiffs land. But, in spite of the receipt of the said notice, the defendants did not stop using the said passage or from construction of the building on the encroached portion of the plaintiffs land. On enquiry, the plaintiff learnt with respect to the land on which the hotel building was under construction that title had not passed to the defendants or any of them and the construction was wholly unauthorised and illegal. The plaintiff claimed a decree for possession of the alleged Encroached portion of the land as shown in the enclosed plan by demolition, if required, of the construction made thereon and for permanent injunction restraining'' the defendants from using the aforesaid 12'' wide passage or making any construction whatsoever on the same. There is no dispute that construction of the hotel building as also of the flyover is now complete.
Defendants Nos. 1 and 2 who are appellants Nos. 1 and 2 have filed a joint written statement wherein they have denied that there was anything like Private Estate or that the plaintiff was the absolute owner thereof. The existence of the pucca building and the flight of steps 1.2'' wide is admitted.
However, it is disputed that the said flight of steps is private belonging to the plaintiff and it is pleaded that it belongs exclusively to the Gangtok Municipality to serve as the exclusive passage to the plot on which defendant No. 2 Company was constructing a multistoryed building to serve the Government interest of Tourism and also public utility purposes. These defendants have alleged that beyond the structures of the plaintiff stands a precipitated hilledge to form the eastern boundry of the defendants'' land all through in their exclusive possession since the time of the Government allotment in or about the year 1958-59, beyond which the plaintiff has not an inch of land. It is further alleged that in or about the year 1961, the construction of the defendants'' cinema and the ground floor of the hotel building was made after due sanction of the plan and the said land and building are in possession and control of defendant No. 2 for which due rents and revenue have all along been paid to the government by the former. It is denied that defendant No. 1 is in any way connected with defendant No. 3. The suit is pleaded to be barred by misjoinder of defendant No. 3 and causes of action. It is further pleaded that defendant No. 2 is entitled to use the flight of steps and is the absolute owner of the land on which the hotel has been constructed by virtue of allotment made by the government and plans having been duly sanctioned by the Municipal Corporation.
Following issues were framed by the learned trial Court -
i) Is the suit as framed is Maintainable
ii) Has the plaintiff any cause of action for the suit?
iii) Has the plaintiff any right to sue?
vi) is the suit bad for non-joinder and misjoinder of proper and necessary parties.
v) Are the defendants or any one of them have or has right to construct the ''flyover bridge'' over the alleged pathway in the suit?
vi) Has the multi-storeyed hotel building in suit been constructed on the defendants'' own land?
vii) Has there been any encroachment of any portion of the plaintiffs" land by construction of the said premises?
viii) Have the defendants trespassed into any land of the plaintiff and if so to what extent?
ix) Is the plaintiff entitled to possession of any land in suit and perpetual injunction as prayed for?
x) To what relief or reliefs is the plaintiff entitled?
After recording evidence and hearing the Learned Counsel for the parties, the learned District Judge dismissed the suit on 29th March, 1985. That judgment was challenged by the plaintiffs-respondents before this Court. Vide judgment dated 11-8-1986, this Court held that the report of the commissioner regarding local investigation was a bundle of confusions and it was difficult to ascertain the correct position and to come to a definite finding as to the merits of the case. Accordingly the judgment and decree of the learned trial Court was set aside and the matter was remanded to the learned trial Court with a direction to appoint a fresh Commissioner to make the local investigation and from the doth survey map and on actual measurement on the spot to show the actual area of plot No. 1040 and also the area covered by the Denzong Cinema, the Tashi Delek Hotel, and the exact location of all constructions in a map to be prepared by him. An opportunity to the parties was also directed to be provided to re-examine their witnesses to clear the anomalies indicated in the judgment and also to produce certain document.
After the remand'', the learned District Judge appointed another Commissioner, Shri R.S. Rawat, Deputy Director, Land Records, Government of Sikkim and also recorded his evidence. After hearing the Learned Counsel for the parties, he decided all the issues in favour of the plaintiffs and decreed the suit, as stated earlier.
Shri Mitra, Senior Advocate, Learned Counsel appearing on behalf of the appellants, has assailed the impugned judgment, contending that the learned trial Judge did not adopt proper approach to the appreciation of evidence on record. According to the Learned Counsel, onus lay on the respondents to prove that plot No. 1040 (part) on which the hotel was constructed by the appellants and the gully in dispute belong to the respondents but they could not even show that any portion of plot No. 1040 belonged to them and did not even allege which portion and upto what extent plot No. 1040 belonged to them. According to the Learned Counsel, learned trial "Judge did not even advert to the fact that the entries in the khasra about plots Nos. 1040 and 1013 were in the name of the then Maharaja of Sikkim in the capacity of Maharaja for the purpose of the government of Sikkim and not as his private estate. Learned Counsel for the appellants relying on Kumar Raj Krishna Prosad Lal Singh Deo Vs. Barabani Coal Concern Ltd. and Others, and M.M.B. Catholicos v. M.P. Athanasius, AIR 1954 SC 526, submitted that the plaintiff has to succeed on the strength of his own title which can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant''s title, in the absence of establishment of his own title carries the plaintiff nowhere. Needless to say, Miss B. Kumari and Mr. T.B. Thapa, Advocates appearing on behalf of the respondents, made their best attempt to defend the judgment.
Only points that arise for decision in this appeal are (1) whether the plaintiffs-respondents are the owners of that portion of plot No. 1040 upon which the appellants-defendants Nos. 1 and 2 have constructed the hotel building and (2) whether the gully in question is a private gully belonging to the plaintiffs which was not open to use by the defendants or any other members of the public and over which defendants Nos. 1 and 2 did not have any right to construct the fly over for the purpose of entry to the hotel.
It was not disputed at the time of arguments that defendants Nos. 1 and 2 constructed the building as also the fly over after getting Blue Print plan approved from the Gangtok Municipal Corporation. But that does not mean that defendants Nos. 1 and 2 are the owners of the land covered by the construction. In order to prove their respective cases, the plaintiffs produced 8 witnesses in all and the defendants produced 1 witness who is defendant No. 1. Besides, the two local commissioners have entered the witness box as Court witnesses. There is also quite voluminous documentary evidence on record.
Material oral evidence produced on behalf of the plaintiffs consists of the depositions of Martam Tobde, P.W. 1 and Tashi "Gyaltsen, P.W. 7. The latter is the constituted attorney of the plaintiffs and has been working for the Private Estate since December 1974. He has been officiating as its secretary since 1976. According to his evidence, the original plaintiff "is the owner of the part of plot No. 1040 within area of 6,600 sq. ft. adjoining to kitchen at Naya Bazar building" as private estate and the defendants have encroached upon that land by constructing a hotel under the name and style of Tashi Delek. He also stated that there is a retaining wall between the land of Denzong Cinema of defendants Nos. 1 and 2 and the land belonging to the plaintiffs in plot No. 1040 which constitutes the boundary between the plaintiff''s land and the land of Denzong Cinema and the defendants have encroached upon the plaintiffs land in plot No. 1040 from the retaining wall to the back of the kitchen of the Yuthok building and the passage. But he could not say if the northern side of the Denzong Cinema building starts from the northern portion of the retaining wall. He admitted that the retaining wall was covered by the hotel building and, therefore, he could not say, "how far if. is extended, into the building or whether the hotel building starts end of the retaining wall". As to the passage, he has stated that the passage in plot No. 1013 is private of the original plaintiff and it was constructed by him. In cross-examination, he also admitted that the plaintiff had got record of the property of the Private Estate and all the properties of the Private Estate are mentioned in that record. However, admits tedly, such records have not been produced, they would not have supported the plaintiffs'' case. Reference in this connection may be made to Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, . In cross-examination, he however, admitted that this statement is based on the strength of the Survey and Settlement map and what he learnt from Martam Babu who had constructed the passage with the original plaintiff''s money. Martam Tobden, P.W. 1, has deposed that he supervised the construction of the building of the Private Estate of the Chogyal and also of the staircase, kitchen building and godown behind the Naya Bazar Building, which took place in or about the year 1953 or 1954. According to his evidence, supervision was done by him at the direction of the original plaintiff and he received supervision charges from him. But neither he nor the plaintiffs could produce any documentary evidence in support of his statement. The witness admitted that there was no written order from the original plaintiff entrusting him with supervision. Admittedly, he did not maintain any account. He says that he used to prepare muster-roll about the workers which he handed over to the plaintiff. He has also stated that he used to purchase building materials but without any cash memos. He could not say anything about the total expenditure incurred. He could not give the amount which he allegedly received as supervision charges. He is a partner of Star Cinema which was taken on lease by defendant No. 2. He has admitted that there was some trouble between defendant No. 2 and the Star Cinema, as a result of which defendant No. 2 filed a suit against the Cinema. But even then he did not admit this fact in a straight-forward manner and qualified his statement by saying that he had heard that there was some trouble between defendant No. 2 and Star Cinema and about the filing of the suit. He chose neither to admit nor to deny that he contested that suit and said that his wife and son must have represented him in that suit because of his illness. Thus, it seems that he is not a Straight-forward and independent witness.
Most important document on which the plaintiffs have placed reliance is the Khasra register (Exhibit.P36) which was prepared at the time of the Survey and Settlement Operation 1950-1954. An extract from that register is marked Exhibit P.36/1. Column No. 5 of the Khasra is meant to give the particulars of bustiwalla whjch means a primary-holder of land having heritable and transferable interest. In respect of plot No. 1013, column No. 5 mentions "Shri Panch Maharja Sir Tashi Namgyal". Next column which is meant to give soil classification mentions the plot as gully. Entry in respect of plot No. 1040 in column No. 5 is similar in nature but nature of soil is mentioned as banjar''. According to the Learned Counsel for the plaintiffs, entries; in respect of plots Nos. 1013 and 1040 are a proof of the fact that the Maharaja who Was the predecessor of the present plaintiffs was the owner of these plots and as such plot No. 1040 and gully in plot No. 1013 belong to the present plaintiffs. On the other hand, it is submitted on behalf of the defendants that entries in the name of the Maharaja meant that the lands vested in the Maharaja for the purpose of the Government and not as his private estate. There is no dispute that the plaintiffs would have no title, in case the land vested in the Maharaja for the purpose of the Government. In the plaint itself, they have pleaded that their claim is based on the plots forming part of the private estate.
this Court observed in Prem Chden Bhutiani v. Rinchen Dorjee, AIR 1986 Sik 22 that an entry in the record of rights is admissible in evidence under S. 35 of the Evidence Act. The principle on which S. 35 is based is that the law reposes such confidence in public officers entrusted with public duties that it is presumed that they will discharge their duties with accuracy and fidelity. As pointed out by the Privy Council in AIR 1937 69 (Privy Council) , entries on such Government records are evidence of title mainly because they are good evidence of possession, but if contrary to the facts as to possession at the time they were made they carry little, if any, weight. Dealing with the presumption regarding the correctness of such entries, the Supreme Court pointed out in Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by Lrs. and Another, in para 20 that there is no abstract principle that whatever will appear in the record of rights will: be presumed to be correct when it is shown by evidence that the entries are not correct.
Keeping in view this legal position, khasra entries in plots Nos. 1013 and 1040 have to be construed so as to ascertain whether the mention therein ''"Shri Panch Maharaj Sir Tashi Namgyal" as bustiwala means the. State Government or the Private Estate of the Maharaja. A persual of the khasra register would show that the same expression "Shri Panch Maharaj Sir Tashi Namgyal" was used in respect of seyeral other entries which were later on scored put and in their place the expression "Private Estate" was written. Some of such entries are in respect of plots Nos. 450, 454, 457, 459, 460, 461, 472, 476, 490, 495, 509, 515, 521, 539, and 1062. This goes a long way to suggest that the expression ''Private Estate'' was used in respect of the private properties of the Maharaja. It may further be mentioned that in respect of plot No. 1002 also which is a very long main road in Sikkim, the expression ''Shri Panch Maharaj Sir Tashi Namgyal'' is mentioned. Keeping in view, the size and nature of the road, it could not be private property of the Maharaja. Furthermore, of plots Nos. 1013 and 1040 were private estates of the Maharaja, Sir Tashi Namgyal, there is no reason why the record of the property of the private estate which the plaintiffs admittedly have, as per the statement of Tashi Gyaltsen, P.W. 7, the general attorney and office secretary of the private estate of the plaintiffs, was not produced.
Then there is documentary evidence of undoubted authenticity that the Government treated plot No. 1040 as belonging to the Government and not to the private estate, both during the period of the Chogyal and also after the merger of Sikkim with India in the year 1975. Exhibit D9 is an agreement dated 10th April, 1961 between the Sikkim Darbar and Shri Motilal Lakhotia (defendant No. 1), whereby the Sikkim Darbar allotted a portion of plot No. 1040 measuring (166'' x 66) + 24/2 x 18'' on the terms and conditions mentioned therein, for the purpose of constructing a cinema hall thereon. ''Subsequently, vide letter dated 20th Sept. 1962 (Exhibit D10) of the Executive Officer, Bazar department, extra land in the some plot to the extent of 61''x19'' was allotted. Thereafter, subsequent to the merger of Sikkim with India, vide letter dated 7th January, 1977 of the Joint Secretary, Local Self Government Department Government of Sikkim to M/s. Denzong Cinema Ltd., a site measuring 10'' x 13'' and 24''x39'' behind the Denzon Cinema hall was allotted to defendant No. 2 for the extension of the hotel which was under construction. All this, further, corroborates the case of defendants 1 and 2 that the expression ''Shri Panch Maharaj Sir Tashi Namgyal'' signifies the Maharaja as the ruler possessing land for the purpose of the Government of Sikkim and not as his private estate.
There is also evidence on record showing that afterwards, the year 1959, Private Estate in the Bazar Area where plot No. 1040 is situated was acquired by the Sikkim Darbar. Exhibit marked D-23 and D-23/1 contains the file noting making a proposal stating that it would be better to settle the matter once and for all by making a lump sum payment to the Private Estate in lieu of the bazar area, with all the income accruing from it being made over to the Durbar. As to compensation, the file noting stated that the net annual revenue from toll tax, frontage and water supply amounts to approximately Rs. 30,000/- and if the Private Estates'' share were to be capitalised according to the usual formula, the lump sum payment would amount to a very large figure and MKS (Maharaj Kumar Sikkim) feels that the Darbar should not be placed under any undue difficulties and so the matter may be finally settled by the payment of a nominal amount of Rs. 1,50,000/- to the Private Estate. This proposal was signed by Shri N.K. Rustomji, the Dewan on 22-6-1959 and approved by Sir Tashi Namgyal on 24-6-1959. Exhibit D7 is an extract from the cash book of the Finance Department showing the payment of Rupees 1,50,000/- on 7th December, 1959 to the Private Secretary to His Highness on account of Bazar Department bill. Exhibit D8 is the classified abstract showing the expenditure of the Government of Sikkim for the year 1959-60 wherein a sum of Rs. 1,50,000/- was shown as payment by way of compensation. The plaintiffs have tried to explain away this evidence by attempting to show that all these documents did not relate to any acquisition of land but were merely to avoid duplication of collecting agencies in respect of taxes and tolls in the bazar area. Shri N.K. Rustomji P.W. 6, made statement to that effect. In cross-examination, he, however, admitted that the heading of the file as given on page l of the note is "Acquisition of private estate land for Gangtok Bazar and payment of lump sum compensation of Rs. 1,50,000/- to the Private Estate". He admittedly was a very old friend of the original plaintiff. His evidence is inherently improbable and directly contradictory to the documentary evidence. It is clear from Exhibits D23 and D23/1 that the proposal was for acquisition of the "Bazar area with all the income accruing from it". The note also mentions about the capitalisation of the Private Estate''s share and for payment only of nominal amount of Rupees 1,50,000/- as compensation to the Private Estate in order that the Durbar may not be placed in undue difficutlies. It is thus clear that even if the Private Estate had any interest in plots Nos. 1040 and 1013, that was acquired by the Government, and ceased to be Private Estate from the year 1959. However, Learned Counsel for the plaintiffs submitted that the defendants cannot be allowed to raise a new plea which they did not take in the written statement not look into any evidence on such a plea, even if it has come on record, and has placed reliance on a number of authorities. But we are not referring them because this question does not arise in the present appeal.
The defendants have also produced some documents to show that the plaintiffs did not have any land beyond the wooden structure in plot No. 1014 and so whenever there was any risk of landslides posing a threat to the wooden structure, the plaintiffs used to take up the matter with the Cinema authorities, that is defendants Nos. 1 and 2, to do the needful. Exhibit D14 is a letter from the Private Secretary, Maharaja of Sikkim to the Executive Officer, Bazar department, dated 23rd October 1961 to the effect that the earth cutting which was being done for the construction of the cinema hall just below the Private Estate Building at Naya Bazar was likely to endanger the very existence of the building itself and also its kitchen, as the cutting in the middle portion was only about 18 away from the kitchen and the land was slipping down due to earth cutting and unless a big cemented protective wall - and big cemented drain to give way to the accumulated rain water were provided wall in time, it was sure to do mischief to the kitchen and gradually to the building as well above the cinema hall under construction. The addressee was, asked to take preventive measures in time so that nothing untoward might happen. Exhibit D37 is another letter dated 17th January, 1962 from the Private Secretary, Maharaj a of Sikkim to the Executive Officer, Bazar Department to the effect that if any damage resulted to the Private Estate building or its kitchen due to the earth cutting for the cinema hall, the Bazar department would be entirely held responsible. Exhibit D39 is a letter dated 26th July, 1969 from the Office of the Chief Engineer, Sikkim Public Works Department to Executive Officer, Bazar Department complaining that severe damage had been caused to the top terrace of the embankment on the rear of the Yothok building due to back cutting for construction of building by M/s. Denzong Cinema Limited and if the latter did not immediately construct protective walls in the upper reaches over the existing retaining walls on the side of Denzong Cinema without waiting further, the protecive works must be constructed by the SPWD at the cost and risk of M/s. Denzong Cinema Limited. Exhibit D40 is the office noting dated 25-7-1969 to the effect that the Cinema authorities had already started work on the retaining wall and intended to raise it to full level of the upper terrace. Exhibit D16 is a letter dated 8th February, 1963 from the Private Secretary, Maharja of Sikkim, to the Executive Officer, Bazar Department saying that the earth cutting on the northern side of Denzong Cinema Ticket Booking house had been started and the loose soil was being thrown on the National Highway road which would slop down to the Private Estate land during the rains, and therefore, the owner should clear up the loose soil and debris from the National Highway road immediately and should not throw any further. All these documents have been produced by the defendants to show that there was not even a whisper from the side of the plaintiffs about the existence of any part of the Private Estate on. Plot No. 1040.
Furthermore, defendants Nos. 1 and 2 got a total area of 13,879 sq. ft. in plot No. 1040 by virtue of documents Exhibits D9, D10 and D11 from the Government. Total area of construction made by defendants Nos. 1 and 2 with respect to the Denzong Cinema, 2 shop houses and the hotel comes, on the basis of the second Commissioner''s report, to 13,616.46 sq. ft. according to calculations by the counsel for the defendants and to 13,503.60 sq. ft. according to the Learned Counsel for the plaintiffs. We see no reason for not relying on the report of the second Commissioner, as the report of the first Commissioner has already been held to be a bundle of confusions in the remand judgment. Thus the area on which constructions have been raised by defendants Nos. 1 and 2 is less than the area allotted to them.
Learned Counsel for the plaintiffs have contended that hillage or retaining wall constituted a bound any. between the land of he plaintiffs and of defendants Nos. 1 and 2 and the defendants have raised construction by crossing over the retaining wall on to it he land of the plaintiffs. Shri Motilal Lakhotia, defendant No. 1, has deposed that the retaining wall is below the private estate building and by the side of Denzong Cinema. On the other hand, Shri Tashi Gyaltsen, PW7, the attorney of the plaintiffs, has deposed that the retaining wall had been covered by the hotel building and that he could not say ''how far it is extended to the building or whether the hotel building starts end of the retaining wall." According to the second local Commissioner, the retaining wall could not be traced out as it was fully covered by the Eastern wall of the Denzong Cinema Hall as well as Hotel Tashi Delek and also because of lack of any base or trace since no such wall was shown in the survey map. It is clear that even the attorney of the plaintiffs could not assert that the defendants raised any construction between the retaining wall and the private estate building of the plaintiffs. Therefore, his aspect of the case does not help in arriving at any conclusion in the matter.
As regards the gully, it is stated in the report of the second Commissioner that it exists on plot No. 1013. Defendants I and 2 constructed a ramp over it after getting the blue print plan sanctioned from the Gangtok Municipal Corporation. Oral evidence produced by the plaintiffs to prove that is a private gully consists of the depositions of Shri Martam Tobden P.W. 1 and Shri Tashi Gyaltsen P.W. 7. But they are of no Consequence for the reasons stated earlier. Defendants Nos. 1 and 2 produced certain documents to show that it was a public gully. Exhibit P 1 is a letter dated 23rd August, 1976 sent by M/s. Denjong Cinema Ltd. to the Chairman, Gangtok Municipal Corporation, for sanction of a plan for extension of the hotel. There is a noting dated 23rd August, 1976 that improvement or beautification of the gully might be acceded to, since it was a public gully, there is another letter dated 15-9-1976 Exhibit P3, sent by the Gangtok Municipal Corporation to the Managing Director, M/s. Denzong Cinema Ltd., stating inter alia that the gully might be beautified but in no case it should encroach upon the public place and obstruct the users of the lane. Exhibit P9 is a file noting dated 26-2-1977 regarding the approval of the blue print plan of the (sic)mp leading to the hotel complex saying that the "proposed ramp is shown from the public gully and starts right from the edge of the new market street. "There is another noting dated 11-3-1977 regarding the ramp, recording that after discussion it was unanimously decided to allow the applicant to erect the proposed ramp for the said hotel since the hotel would be prestiguous hotel of the State and the Government was also having a share in it. Exhibit P. 15 is a letter dated 18-3-1977 of the Denzong Cinema Ltd., to the Minister for Local Self Government complaining "that unauthorised erection of barbed wire fencing on 8th March, 1977 has not yet been removed "and making request for issue of necessary orders for removal of the same so as to enable them to complete the construction work in time. This also bears an office noting dated 19-3-1977 that the gully in question belongs to the Government and, as such, unauthorised erection of barbed wire fencing was against law.
Shri B.N. Sharma P.W. 2, who was the Executive Officer, Gangtok Municipal Corporation from 17-12-1975 to 13-7-1978 intimated defendant No. 2 M/s. Denzong Cinema Ltd. vide letter dated 24-5-1977 (Ex; D28) that the gully was the sole property of the Government maintained and looked after by the Gangtok Municipal Corporation and no individual would have any claim over such gully.
As a result of the above discussion, we hold that the khasra entries in respect of plots Nos. 1013and 1040 mention ''Shri Panch Maharaj Sir Tashi Namgyal'' as ruler holding the plots for the purpose of the Government of Sikkim and not as his Private Estate and the plaintiffs-respondents have failed to prove that any portion of plot No. 1040 over which defendants Nos. 1 and 2 have raised constructions belonged to them. The plaintiffs have also failed to prove that the gully on plot No. 1013 is their private gully. On the other hand, defendants Nos. 1 and 2 have proved that they have raised constructions on plot, No. 1040 after getting the land validly allotted from the Government and after getting the blue print plans sanctioned from the Gangtok Municipal Corporation and that the gully in plot No. 1013 is a public gully.
In the result, the appeal is allowed, the impugned judgment and decree of the learned trial Court is set aside and the suit is dismissed with costs in both the Courts, counsel fee in each Court is assessed at Rs. 5000/-.