Holding

The Supreme Court held that the plaintiffs failed to establish title, the land had been lawfully acquired by the Sikkim Darbar and vested in the Government of Sikkim, and the Khasra entries could not be presumed correct, leading to dismissal of the appeal.

Summary

The appellants, successors of the late Chogyal Sir Tashi Namgyal, claimed ownership of plots 1013, 1014 and part of 1040 in Gangtok, alleging they formed part of the Chogyal's private estate. The respondents had constructed a hotel and other structures on the land, asserting that the plots had been acquired by the Sikkim Darbar in 1959 for a lump‑sum compensation and subsequently vested in the Government of Sikkim and, after the 1975 merger, in the Government of India under Article 371F. The plaintiffs relied primarily on entries in a 1954 Khasra (revenue record) to establish title, but the Supreme Court held that such records, not being statutory, do not confer title and can be rebutted by evidence of acquisition. The Court found that the plaintiffs failed to prove any continuing title and were estopped by the acceptance of compensation. Consequently, the appeal was dismissed, leaving the lower court’s decree in favour of the respondents intact.

Issues considered

The plaintiffs' predecessor-in-interest had a valid title over the disputed plots.
Whether the acquisition by the Sikkim Darbar transferred ownership to the Government of Sikkim, thereby extinguishing the private estate's title.
Whether entries in the Khasra (record of rights) are conclusive evidence of title under Section 35 of the Indian Evidence Act.
Whether the plaintiffs satisfied the burden of proving title over the land in question.

Legislation cited

Subjects

land titleprivate estateSikkim mergerArticle 371FKhasraevidencepresumption of correctnesseminent domaincivil suitencroachment

Judgment

M.T.W. TENZING NAMGYAL AND ORS. A
v.
MOTILAL LAKHOTIA AND ORS.

FEBRUARY 5, 2003

[V.N. KHARE CJ, S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] B

land laws:

Plaintiffe claiming title over suit land through their predecessor-in-
interest-Case based on title and not possession-Allegation that property C
acquired by Sikkim Government and consequently by Government of India--
Trial Court allowing the suit-High Court setting aside the same-Justification
of-Held, since plaintiffe failed to prove that land belonged to them and
records of right are not basis of determination of title as they are mainly
based on possession, order of High Court justified-Constitution of India, D
Article 371 F.

Plaintifrs predecessor-in-interest owned certain plots of land forming
part of his private estate which upon his death devolved on the plaintiff
and on his death upon the appellants. Respondent-defendant encroached
upon the land belonging to the plaintiff. Plaintiff filed suit for recovery of E
possession of the encroached land and permanent injunction. District
Judge dismissed the suit. High Court set aside the judgment and remitted
back the matter. District Judge then allowed the suit. However, High Court
set aside the order. Hence the present appeal.

Appellants contended that the High Court erred in holding that F
entries made in Khasra appearing in the name of plaintifrs predecessor-
in-interest did not belong to his private estate; and that plot No.1040 being
situated within the bazar area was acquired for a sum of Rs. 1,50,000 and
also that 'private estate' had not been mentioned against the plot Nos.1013
and 1040 in the Exhibit, the same had vested in the State of Sikkim. It
was further contended that as there had been no transfer of title from the- G
plaintiffs to the private estate in any manner whatsoever, the Government
of Sikkim did not derive any title thereto; and that the purported
acquisition of the suit land said to have been proved by the Exhibits does
not show that there had been any transfer of property which was
applicable to the State of Sikkim and in absence thereof the ownership of H
877
878 SUPREME COURT REPORTS (2003) I S.C.R. ·

A the plaintiffs in respect of plot Nos.1013 and 1040 continued with the
plaintiffs.

Respondent No. 1 contended that the defendants have constructed the
hotel building in accordance with the sanction accorded by the competent
authorities; that most of the documents, on which reliance had been placed
B by the High Court were produced by the plaintiffs and/or received from
the custody of their witnesses; and that having regard to the facts and
circumstances of the case no presumption can be raised as regards the
correctness of the entries made in the- Khasra.

C Respondent No.2 contended that the plaintiffs have not been able to
prove their title over plot No. 1040.

Dismissing the appeal, the Court

HELD: I. I. The plaintifrs _predecessor-in-interest was late Chogyal
D of Sikkim. Therefore, there is no question of plaintifrs having any
documents of title. The only document of title which was produced by the
plaintiffs in support of their claim is the Khasra in which entries against
different plots, inter alia, have been made in the name of 'Sarkar' as also
in the name of plaintifrs predecessor-in-interest. Certain plots have also
been recorded as 'Private Estate'. High Court recorded a finding to the
E effect that all lands which were entered in the Khasra in the name of
plaintifrs predecessor in interest did not belong to his private estate. The
finding may not be correct in view of the fact that admittedly his lands in
suit were subject matter of acquisition. Therefore, this Court assumed that
the said finding of High Court is incorrect. (883-G, H; 884-E, F)

F 1.2. State of Sikkim merged with the Union of India in terms of an
agreement on 26.4.1975. After merger the proposal to construct a hotel
started. The records of the case clearly demonstrate that for the purpose
of construction of hotel the defendants not only sought for but also were
granted additional lands. They took permission for construction of the
G hotel from the appropriate authorities. (885-A, DI

t.3. The plaintiffs claimed title over the suit land on the basis of their
title thereupon and not on previous possession. Their case, thus, must stand
or fall on their own pleadings. The plaintiffs proceeded on the basis that~
they were owners of a part of plot No. I 040. They did not specify the extent
H thereof. They did not say how and to what extent a part of plot No.1040
M.T.W. NAMGYAL v. MOTILAL LAKHOTIA 879
belonged to them. They did not question the settlements made by the A
Sikkim Darbar in favour of the respondents and various other persons.
In fact, the plaintiffs' predecessor held shares in the defendant No.2
company. In the facts and circumstances of the case it was obligatory on
the part of the plaintiffs to prove that the lands allegedly encroached upon
by the defendants belong to them. Plaintiffs have miserably failed to prove
the same. Furthermore, indisputably the bazar area had been acquired B
by the Sikkim Darbar. The other documents, namely, the Exihibits are
also clear pointers to the fact that certain properties over which plaintifrs
predecessor-in-interest had been claiming right as its private estate were
acquired by the Sikkim Darbar of which he was the head. The owner of
the land accepted the amount of compensation without any demur C
whatsoever and in that view of the matter he as well as his successors-in-
interest are estopped and precluded from contending that the said
properties did not vest in the Sikkim Darbar and consequently in the
Government of India. The submission that the plaintiffs continued to have
title in respect of the lands in question despite acquisition thereof cannot
be accepted. (888-H; 889-A, B; E-F] D
l.4. It is not in dispute that Sikkim prior to its merger with the Union
of India was a sovereign State. Plaintifrs predecessor-in-interest was the
owner of the entire properties. Evidently the lands were recorded in
different names. If Chogyal of Sikkim exercised his right of 'Eminent E
Domain' in relation to the suit properties which were said to be belonging
to his private estate, no registered deed of sale was required to be executed
in his favour. In any event, once the said lands are held to have vested in
the Sikkim Darbar, the same consequently vested in the Government of
Sikkim for the purpose of the Government. (889-G-H; 890-A]
F
1.5. The khasra and khatian have not been prepared under a statute.
The question as to whether the same would be historical material or
instrument of title or otherwise, would depend upon either the statute
governing the same or the practice prevailing in the State. In the event,
however, the records of right were not prepared under a statute, a
presumption of correctness may be raised only in terms of Section 35 of G
the Evidence Act. However, ordinarily records of right cannot be treated
to have any evidentiary value on the question of title inasmuch as such
records are prepared mainly based on possession. The entries in the
Khasra must, therefore, be construed keeping the principles of law in view.
(890-A, B, q H
880 SUPREME COURT REPORTS [2003) I S.C.R.

A 1.6 Having regard to the fact that the plaintiffs never claimed any·
right over the entire plot No. 1040 and further having regard to the fact
that only a toilet was said to have existed thereupon, as also having regard
to the subsequent events which took place, namely, acquisition of land,
the entry in the khasra is not of much value for the purpose of showing
that the plaintiffs continued to have title over the said property.
B Furthermore, the plaintiffs claimed title over the suit land. The trial Court
in a case of this nature was bound to enquire or investigate into the
question of title and could not have decreed the suit merely on the basis
of the entries in the revenue records. [890-G, H; 891-A, BJ

Nagar Pa/ika v. Jagat Singh, Advocate, (1995) 3 SCC 426 and Sita
C Ram Bhau Patil v. Ramchandra Nago Patil (Dead) By Lrs. and Anr., (1977)
2 sec 49, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9265 of -~
1995.
D From the Judgment and Order dated 30.6.1994 of the High Court of
· Sikkim at Gangtok in Civil FA 4/89.

G.L. Sanghi, Shri Narain, Sandeep Narain, T.B. Thapa, Bhuvnesh
Kumari and Ms. Anajali Jha for M/s. S. Narain and Co. for the Appellants.

E Jayant Mitra, Radha Rangaswamy, Bhaskar P. Gupta, A.T. Patra, Sanjiv
Sen and N.K. Malhotra for M/s. OP Khaitan & Co. for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J . The appellants herein are successors in interest of late
F Chogyal Sir Tashi Namgyal of Sikkim.

A suit was filed by Mewang Tobgyal Wangchuk Tenzing Namgyal son
of late Chogyal Palden Thondup Namgyal and others against the defendants-
respondents herein praying for the following reliefs :

(a) recovery of possession of the encroached portion of the land 1·
G
shown in the annexed plan if required, by demolishing the
construction made thereon;

(b) permanent injunction restraining the defendants from using the
aforesaid 12 feet wide passage or making any construction
H whatsoever over the same;
M.T.W. NAMGYAL v. MOTILAL LAKHOTIA [S.B. SINHA, J.] 881

(c) pending disposal of the suit an order for restraining the defendants A
from construction of the flyover or blocking the passage and also
restraining the defendants from carrying on with further work ctf
construction on the encroached land shown in the attached plan;

(d) cost of the suit;
(e) any other relief or reliefs to which the plaintiff may be found B
entitled to under law and equity.

Shortly stated, the said suit was filed on the following allegations :

Plot Nos. 1013, 1014 and 1040 (part) situated at Gangtok belonged to
late Chogyal Sir Tashi Namgyal of Sikkim were his personal properties fanning C
part of his private estate which upon his death devolved on the original
plaintiff and on his death upon the appellants. Allegedly, one pucca building
was constructed on Plot No. I014 situated at New Market Road, Gangtok
which was let out to the tenants. On the adjacent land to the same building,
there existed a private passage of 12 feet width made of steps and further on D
the adjacent south thereto, there was another building known as Yuthok
building situated on Plot No. 1012. Another passage existed behind the
aforesaid two buildings which is said to be a private gully being Plot No.
1013. There are two wooden buildings used as kitchen, latrines and godown
for the use of tenants occupying Nayabazar building and Yuthok building.
E
Allegedly there was a retaining wall on the west of Plot No. 1040 (part)
which was the boundary between the land of the Plaintiffs' private estate and
the land of defendant No. 2.

According to the plaintiffs, the defendants started construction of a big
pucca building for the purpose of running a hotel on the land situated on the F
south of his land being Plot No. 1040 and allegedly the defendants illegally
encroached upon about 6,600 sq. ft. therein.

The defendants filed their written statement denying and disputing the
allegations made in the plaint. The defendants although admitted the existence
of the pucca building and the flight of steps but contended that the latter G
belonged to Gangtok Municipality which was meant to serve as the exclusive
passage to the plot on which defendant No. 2 had been constructing a multi-
storeyed building. It was alleged that beyond the structures of the plaintiffs
a precipitated hill edge exists on the eastern boundary of the defendants' land
and the same was all through in their exclusive possession. The defendants H
882 SUPREME COURT REPORTS [2003] I S.C.R.

A claimed settlement of their land by reason of three documents which were
marked as Exhibits D-9, D-10 and D-11 of the years 1961, 1975 and 1977 'r
respectively .

.The said suit was initially dismissed by the District Judge, Gangtok by
a judgment and decree dated 29th March, 1985 whereagainst the plaintiffs
B preferred an appeal before the High Court. By a judgment dated 11.8.1986
while setting aside the judgment and decree of the learned District Judge the
matter was remanded with a direction to appoint another Commissioner to
make local investigation with reference to the cloth survey map and on actual
measurement on the spot so as to ascertain the actual area.of Plot No. 1040,
C the area covered by the Denzong Cinema, the Tashi Delek Hotel and the
exact location of all other constructions in 2 map. An opportunity was also
given to the parties to re-examine their witnesses to clear the anomalies
indicated in the said judgment.

Pursuant to or in furtherance of the said direction contained in the said
D judgment, the learned District Judge appointed another Commissioner who,
inter alia, found that Plot No. 1040 measures 0.69 acres out of which the land
allotted to the defendants was 13, 879 sq. ft. and the total area of constructions
made by defendant Nos. 1 and 2 being the Denzong Cinema, two shop
houses and hotel comes to 13, 616.46 sq. ft., which was accepted by the
defendants but according to the plaintiffs the same was 13, 503.60 sq. ft.
E
The learned District Judge, Gangtok by a judgment and decree dated
26.2. 1988 decreed the suit. A Division Bench of the High Court, however,
in appeal reversed the said judgment and decree by a judgment dated 30th
June, 1994.

F The appellants are before us in appeal questioning the correctness or
otherwise of the said judgment.

Mr. G.L. Sanghi, learned senior counsel appearing on behalf of the
appellants, inter alia, submitted that the High Court etmmitted a serious error
in construing the Khasra (Exhibit P-36) in so far as it held that entries appearing
G in the name of Sir Tashi Namgyal did not belong to his private estate. The
learned counsel would contend that the High Court further fell in error in
holding that his Plot No. 1040 being situated within the bazar area was ~
acquired for a sum of Rs. 1,50,000. It was submitted that as there had been
no transfer of title from the plaintiffs to the private estate in any manner
H whatsoever, the Government of Sikkim did not derive any title thereto.
M.T.W. NAMGYALr. MOTi LAL LAKHOTIA [S.B. SINHA. J.] 883

Mr. Sanghi would contend that the purported acquisition of the suit A
land said to have been proved by Exhibits D-7, D-14 and D-23/12 does not
show that there had been any transfer of property within the meaning of
Section 54 of the Transfer of Property Act which was applicable to the State
of Sikkim and in absence thereof the ownership of the plaintiffs in respect of
Plot Nos. 1013 and 1040 continued with the plaintiffs. Drawing our attention B
to certain findings of the High Court in Civil Appeal No. 2 of 1985, the
learned counsel would argue that the High Court in its judgment arrived at
an erroneous conclusion that as 'private estate' had not been mentioned against
the Plot Nos. 1013 and 1040 in Exhibit P-36, the same had vested in the State
of Sikkim.

Mr. Mitra, the learned senior counsel appearing on behalf ofrespondent
c
•
no. I, on the other hand, would submit that the conspectus of events found by
the High Court in the judgment under appeal would clearly establish that the
defendants have constructed the hotel building in accordance with the sanction
accorded by the competent authorities. It was submitted that most of the
documents, whereupon reliance had been placed by the High Court were D
produced by the plaintiffs and/or received from the custody of their witnesses.
Mr. Mitra would contend that having regard to the facts and circumstances
of this case no presumption can be raised as regards correctness of the entries
made in Khasra (Exhibit P-36). In support of the said contention, strong
reliance has been placed 011 Sita Ram Bhau Patil v. Ramchandra Nago Patil
(Dead) By l.Rs. and Anr., [1977] 2 SCC 49. E
Mr. Bhaskar Gupta, the learned senior counsel appearing on behalf of
respondent No. 2 would submit that as in the instant case, the plaintiffs have
not been able to prove their title over Plot No. 1040, an independent
investigation thereof with reference to the defendants' title was not necessary. F
The learned counsel in support of the said contention placed strong reliance
on Nagar Palika, Jind v. Jagat Singh, Advocate, [1995] 3 SCC 426.

The Plaintiffs' predecessor in interest was late Chogyal Sir Tashi
Namgyal of Sikkim. There is, therefore, no question of plaintiffs' having any
document of title. G
The only document of title which was produced by the plaintiffs in
support of their claim is the aforementioned Khasra (Exhibit P-36). In Exhibit
P-36 entries against different plots, inter alia, have been made in the name
of 'Sarkar' as also in the name of 'Shri Panch Maharaja Sir Tashi Namgyal
of Sikkim'. Certain plots have also been recorded as 'Private Estate' Plot No. H
884 SUPREME COURT REPORTS [2003] I S.C.R. ·

A 1013 has been recorded in the name ofShri Panch Maharaj Sir Tashi Namgyal.
Plot Nos. 1014 and 1040 have also been recorded in his name. In none of the Y--
entries the area of the plots is mentioned. It is relevant to note that the
plaintiffs in their plaint claimed ownership in respect of Plot Nos. I 013, 1014
and I 040 (part). No claim had been made in the plaint that the entire plot No.
B I 040 belonged to the plaintiffs.

How the plaintiffs·claimed title in respect o~ a part of Plot No. I 040 has
also not been disclosed. The said Khasra was prepared in the year 1954.
However, admittedly a suggestion to acquire the said land was mooted to the
effect that a lump-sum payment ·may be made to the 'private estate' in lieu
C of the bazar area with all the income accruing therefrom upon payment of a
sum of Rs. 1,50,000 to the private estate, so that the same may vest in the
Sikkim Darbar.

The said proposal was put up for approval and sanction of the Chogyal.
On 22nd June, 1959, the said proposal was accepted. Requisite steps for
D payment of the said amount to the private estate were taken on 26th June,
1.959. Exhibit D-7 contains an entry in the cash book of the Financ~ Department
of Sikkim regarding payment of Rs. 1,50,000. Exhibit D-8 is a classified
abstract showing the expenditure of the Government of Sikkim for the year
1959-60 regarding payment of Rs. 1,50,000. Both Exhibits D-7 and D-8 are
dated 07.12.1959.
E
The High Court recorded a finding to the effect that all lands which
were entered in the Khasra (Exhibit P-36) in the name of Sir Tashi Namgyal
did not belong to his private estate. The said finding, however, may not be
correct in view of the fact that admittedly his lands in suit were subject
F matter of acquisition.

We, therefore, may proceed on the assumption that the said finding of
the High Court is incorrect.

The question which, therefore, ought to have been raised was· not that
as to how the said property was treated prior to 24.6.1959 but how the said
G property has been treated thereafter. It is not in dispute that the Sikkim
Darbar granted settlement of piece and parcel of land measuring (166' x 66'
+ 24'/2 x 16') in favour of the first respondent for construction of Cinema '*
Hall on I 0-4-1961. Several letters appear to have been passed between the
Executive Officer, Bazar Department of Government of Sikkim and the
H respondents herein with regard to the constructions on the said land. Admittedly
M.T. W. NAMGYAL v. MOTILAL LAKHOTIA [S.B. SINHA. J.] 885

·the original plaintiff held shares in Denzong Cinema Limited. It is also beyond A
any dispute that construction of the Cinema Hall started in t~e year 1969. The
State of Sikkim merged with the Union of India in terms of an agreement on
26th April, 1975.

Article 371 F(h) of the Constitution of India reads thus:
B
"371 F. Special provisions with respect to the State of Sikim.
Notwithstanding anything in this Constitution, -

(h) all property and assets (whether within or outside the territories
comprised the State of Sikkim) which immediately before the
appointed day were vested in the Government of Sikkim or in any C
other authority or in any person for the purposes of the Government
of Sikkim shall, as from the appointed day, vest in the Government
of the State of Sikkim."

After merger of Sikkim in the Union of India, the proposal to construct
a hotel started. The records of the case clearly demonstrate that for the purpose D
of construction of hotel the defendants not only sought for but also were
granted additional lands. They took permission for construction of the hotel
from the appropriate authorities.

In this connection, it will be relevant to notice the following important E
documents:-

I. 24-6-76 to 22-7-76: Ex. P-24, P-25 and P-26 are extracts taken
out from N.S. page 29 of File No.4(6)1962-
63, 76-77 which contain the request of
Managing Director, Denzong Cinema Ltd., F
Gangtok for grant of permission for running
a hotel in the extension of the back side
block of cinema premises and for
diversification of investment of the Denzong
Cinema towards hotel business and the
•
recommendations of the Secretary, Finance, G
Chief Secretary and the Chief Minister
thereon.

2. 24-7-76 Ex. P-23 is the letter written by Secretary,
Finance, Government of Sikkim to the H
Managing Director, Denzong Cinema Ltd.
886 SUPREME COURT REPORTS [2003) I S.C.R.

A informing that the.Government of Sikkim
gave its concurrence to their proposal for
running of a hotel. The Management was
requested to obtain formal permission
therefor.

B 3. 23-8-76 Ex. P-1 is the letter from the Managing
Director, Denzong Cinema Limited to the
Chairman, GMC for according permission
for extension to the present construction of
Denzong Cinema complex to construct a
tourist hotel.
c
4. 23-8· 76 Ex. P- I contains the comments offered by
the Executive Officer of the GMC,
recommending the proposal of extension to
the present construction of Denzong Cinema
D complex.

5. 10-9-76 Ex. P-2 is the site plan for addition and ..
alteration to the Hotel Building (5th and
6th floors) which was approved by the l.
GMC.
E
6. 15-9-76 Ex. P-3 is the letter from the Executive
Officer, GMC to the Managing Director,
Denzong Cinema Ltd. informing that GMC
approved their BP Building Plan and
permitted construction on certain terms and
F conditions.

7. 7-12-76 Ex. D-20 is the letter from the Un'der
Secretary, Local Self Govt. Dept. Gangtok,
to the Managing Director, Denzong Cinema
Ltd. conveying the prvposal to allot a site
G measuring 43' x IO' and 24' x 30' for hotel
behind Denzong Cinema.

8. 7-1-77 Ex. D-1 I is the letter from the Joint
Secretary, Local Self Government
Department, Gangtok to Mis Denzong ...
H
M.T.W. NAMGYAL v. MOTi LAL LAKHOTIA [S.B. SINHA. J.] 887
Cinema Ltd. allotting additional site for A
extension of the hotel under construction.

9. 18-1-77 Ex. P-11 is the letter of the counsel for the
appellant to Respondent No. 1 regarding
encroachmeni of his client's land. (Note that
there is no complaint regarding B
encroachment into Private Estate)

10. 27-1-77 Ex. P-12 is the letter for and on behalf of
Prince T.G., Vapshi Yuthok to the Secretary,
Local Self Government, Gangtok, regarding C
encroachment on the boundary of Yuthok
building: (Note that no complaint that
construction was on Private Road).

II. 29-01-77 Ex. P-10 is the letter of P.W.2, Executive
Officer, GMC to the District Magistrate, D
Gangtok regarding violation of approved BP
Plan and unauthorized construction. (Note
no mention of encroachment on Private
Estate: Only complaint is that construction
was being made not according to approved
plan). E

12. 31-112-2177 Ex. P-13 contains notings of the Chairman,
GMC, E.O., D.M.: BP plan for construction
of the hotel on the additional site was
approved by the GMC. F
13. 31-1-77 Ex. D-1 is the letter from the Executive
Officer, GMC to M/s Denzong Cinema Ltd,
Gangtok. P.W. 2 communicated approval
of the BP Plan to the Defendant.
G
14. 5-2-77 Ex. D-4 is the copy of the BP plan as
, sanctioned by the GMC

15. 18-3-77 Ex. P-15 is the letter from Respondent No.2
to the Minister for Local Self Government,
Sikkim. Defendant complained, to GMC H
- 888 SUPREME COURT REPORTS [2003) I S.C.R.

A regarding removal of barbed wire fencing
~
from the gully.

16. 19-3-77 Ex. P-15 is the noting of E.O. Endorsement
on the letter by the Chairman that the gully
belonged to the Government, and as such
B unauthorized construction of barbed wire
fencing has to be removed at the earliest. r r

17. 30-6-77 Ex.D-2 is letter from P. W. 2, Executive
Officer of GMC, enclosing therewith a
report of the Corporation Engineer. D-3 is
c the report of the Corporation Engineer
indicating that construction of the hotel
Building and the ramp are according to plan.

18. 12-10-77 Ex. D-12 is the rough sketch of the site
allotted to Respondent No. I by the
D
Government on 7 .1.1977 and D-13 is the
letter from the Under Secretary, Local Self
Government Department, Gangtok to
_..._ ....
Respondent no. I forwarding the same to
him.
E
The High Court discussed the evidence brought on records by the parties
in great details. On cogent and sufficient reasons it did not accept the statements
of the witnesses examined on behalf of the plaintiffs. Relying on or on the
basis of various documents, it came to the conclusion that even if the private
estate said to be belonging to late Chogyal had any interest in Plot Nos. I 0 I 0 ...,_
F and I 013, the same was acquired by the Government and, thus, ceased to be
the private estate on and from 1959. The High Court further took into
consideration various documents as to how the Government had treated Plot
No. 1040 as belonging to it and not to the 'estate', both before and after
merger of Sikkim with Government of India. It, as noticed hereinbefore,
further held that the constructions raised by the defend~nts were within the
G
lapd settled in favour of the respondents by Exhibits D-9, D-10 and D-11.

The High Court in its judgment also took into consideration the report
of the Second Advocate Commissioner and relied thereupon.

The plaintiffs claimed title over the suit land on the basis of their title ·
H
M.T.W. NAMGYAL v. MOTILAL LAKHOTIA [S.B. SINHA, J.) 889

thereupon and not on previous possession. Their case, thus, must stand or fall A
on their own pleadings. As indicated hereinbefore, the plaintiffs proceeded
on the basis that they were owners of a part of Plot No. I040.· They did not
specify the extent thereof. They did not say how and to what extent a part
of Plot no.1040 belonged to them. They did not question the settlements
made by the Sikkim Darbar in favour of the respondents and various other
persons. In fact, the plaintiffs' predecessor held shares in the defendant No. B
2 company. In the facts and circumstances of the case it was obligatory on
-.; the part of the plaintiffs to prove that the lands allegedly encroached upon by
the defendants belonged to them. Plaintiffs have miserably failed to prove the
same. Furthermore, indisputably the bazar area had been acquired by the
Sikkim Darbar. Mr. N.K. Rustomji, who was Diwan of Sikkim at the relevant C
time, examined himself as witness No. 6 for the Plaintiffs. He in no uncertain
terms stated:
-'r
"I understand the meaning of 'acquisition'. The heading of the file as
given on page of the note is "Acquisition of private estate land for D
Gangtok Bazar and payment of lumpsum compensation Rs. 1,50,000
to the Private Estate".

The other documents referred to hereinbefore, namely, Exhibits D-7,
D-14, and D-23 to D-23/12 are also clear pointers to the fact that certain
properties over which late Chogyal of Sikkim had been claiming right as its E
private estate were acquired by the Sikkim Darbar of which he was the head.
The owner of the land accepted the amount of compensation without any
demur whatsoever and in that view of the matter he as well as his successors
in interest are estopped and precluded from contending that the said properties
did not vest in the Sikkim Darbar and consequently in the Government of
India. F

The submission of Mr. Sanghi to the effect that the plaintiffs continued
to have title in respect of the lands in question despite acquisition thereof
must, therefore, be rejected.
G
• It is not in dispute that Sikkim prior to its merger with the Union of
India was a sovereign State. Chogyal was the owner of the entire properties.
Evidently the lands were recorded in different names. If Chogyal of Sikkim
exercised his right of 'Eminent Domain' in relation to the suit properties
which were said to be belonging to his private estate, no registered deed of
sale was required to be executed in his favour. H
890 SUPREME COURT REPORTS [2003) I S.C.R.

A In any event, once the said lands are held to have vested in the Sikkim
Darbar, the same consequently vested in t.he Government of Sikkim for the
. purpose of the Government.

The khasra and khatian have not been prepared under a statute. The
question as to whether the same wo~ld be historical material or instrument
B of title or otherwise, would depend upon either the statute governing the
same or the practice prevailing in the State. In the event, however, the records
;,--
of right were not prepared under a statute, a presumption of correctness may
be raised only in terms of Section 35 of the Indian Evidence Act.

However, ordinarily records of right cannot be treated to have any
c evidentiary value on the question of title inasmuch as such records are prepared
mainly based on possession.
--.,·
The entries in the Khasra (Exhibit P-36) must, therefore, be construed
keeping the aforementioned principles of law in view.
D
In Sita Ram Bhau Patil (supra), this Court held :

"With regard to the record of rights Counsel for the appellant said
that presumption arises with regards to its correctness. There is no
abstract principle that whatever will appear in the record of rights
E will be presumed to be correct when it is shown by evidence that the
/ entries are not correct. Apart from the intrinsic evidence in the record
of rights that they refer to facts which are untrue it also appears that
the record of rights have reference to the mutation entry that was
made by the Circle Officer on January 30, 1956. Counsel for the
respondent rightly contended that no presumption could arise for two
F principal reasons. First, the oral evidence in this case nullified the
entries in the record of rights as showing a state of affairs opposed
to the real state of affairs and, second, no notice was ever given to
the respondent with regard to mutation proceedings. Therefore the
respondent is right in contending that no presumption can validly
G arise from the record of rights."

Having regard to the fact that the plaintiffs never claimed any right
over the entire Plot No. 1040 and further having regard to the fact that only
a toilet was said to have existed thereupon, as also having regard to the
subsequent events which took place, namely, acquisition of land, we are of
H the opinion that the entry in Exhibit P-36 is not of much value for the
M.T.W. NAMGYAL v. MOTILAL LAKHOTIA [S.B. SINHA, J.) 891

purpose of showing that the plaintiffs continued to have title over the l>ftid A
property.

Furthermore, the plaintiffs claimed title over the suit land. The trial
Court in a case of this nature was bound to enquire or investigate into the
question of title and could not have decreed the suit merely on the basis of
the entries in the revenue records [See Nagar Palika Vs. Jagat Singh (supra)]. B

• For the reasons aforementioned, we are of the opinion that no case has
been made out for our interference with the judgment and decree under
appeal. This appeal is, therefore, dismissed but in the facts and circumstances
of the case, there shall be no order as to costs.
c
N.J . Appeal dismissed.

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