Shortly stated, the said suit was filed on the following allegations Plot Nos.
therein.
On companyent and sufficient reasons it did number accept the statements of the witnesses examined on behalf of the plaintiffs.
Another passage existed behind the aforesaid two buildings which is said to be a private gully being Plot No.
The Management was requested to obtain formal permission therefor.
D 1 is the letter from the Executive Officer, GMC to M s Denzong Cinema Ltd, Gangtok.
The said suit was initially dismissed by the District Judge, Gangtok by a judgment and decree dated 29th March, 1985 whereagainst the plaintiffs preferred an appeal before the High Court.
P 11 is the letter of the companynsel for the appellant to Respondent No.
which was accepted by the defendants but according to the plaintiffs the same was 13, 503.60 sq.
31 1 77 Ex.
7 12 76 Ex.
Certain plots have also been recorded as Private Estate.
Their case, thus, must stand or fall on their own pleadings.
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 companystruction on certain terms and companyditions.
P 1 companytains the companyments offered by the Executive Officer of the GMC, recommending the proposal of extension to the present companystruction of Denzong Cinema companyplex.
D 3 is the report of the Corporation Engineer indicating that companystruction of the hotel Building and the ramp are according to plan.
1,50,000/ .
P 12 is the letter for an on behalf of Prince G., Vapshi Yuthok to the Secretary, Local Self Government, Gangtok, regarding encroachment on the boundary of Yuthok building Note that numbercomplaint that companystruction was on Private Road .
The said finding, however, may number be companyrect in view of the fact that admittedly his lands in suit were subject matter of acquisition.
P 15 is the letter from Respondent No.2 to the Minister for Local Self Government, Sikkim.
The High Court further took into companysideration various documents as to how the Government had treated Plot No.
Allegedly, one pucca building was companystructed on Plot No.
1,50,000/ .
and the total area of companystructions made by defendant Nos.
The only document of title which was produced by the plaintiffs in support of their claim is the aforementioned Khasra Exhibit P 36 .
31 1/2 2/77 Ex.
1,50,000/ to the private estate, so that the same may vest in the Sikkim Darbar.
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The plaintiffs claimed title over the suit land on the basis of their title thereupon and number on previous possession.
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10 9 76 Ex.
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.
30 6 77 Ex.
Allegedly there was a retaining wall on the west of Plot No.
1010 and 1013, the same was acquired by the Government and, thus, ceased to be the private estate on and from 1959.
Defendant companyplained to GMC regarding removal of barbed wire fencing from the gully.
12 10 77 Ex.
P 2 is the site plan for addition and alteration to the Hotel Building 5th and 6th floors which was approved by the GMC.
P 1 is the letter from the Managing Director, Denzong Cinema Limited to the Chairman, GMC for according permission for extension to the present companystruction of Denzong Cinema companyplex to companystruct a tourist hotel.
1040, the area companyered by the Denzong Cinema, the Tashi Delek Hotel and the exact location of all other companystructions in a map.
7 1 77 Ex.
1 regarding encroachment of his clients land.
Note that there is numbercomplaint regarding encroachment into Private Estate 10.
D 20 is the letter from the Under Secretary, Local Self Govt.
D 12 is the rough sketch of the site allotted to Respondent No.1 by the Government on 7.1.1977 and D 13 is the letter from the Under Secretary, Local Self Government Department, Gangtok to Respondent number1 forwarding the same to him.
P 13 companytains numberings of the Chairman, GMC, O., D.M. BP plan for companystruction of the hotel on the additional site was approved by the GMC.
D 11 is the letter from the Joint Secretary, Local Self Government Department, Gangtok to M s Denzong Cinema Ltd. allotting additional site for extension of the hotel under companystruction.
The High Court in its judgment also took into companysideration the report of the Second Advocate Commissioner and relied thereupon.
D 2 is letter from P.W. 2, Executive Officer of GMC, enclosing therewith a report of the Corporation Engineer.
1040 measures 0.69 acres out of which the land allotted to the defendants was 13, 879 sq.
A Division Bench of the High Court, however, in appeal reversed the said judgment and decree by a judgment dated 30th June, 1994.
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 number belong to his private estate.
5 2 77 Ex.
18 3 77 Ex.
Plaintiffs have miserably failed to prove the same.
1013, 1014 and 1040 part situated at Gangtok belonged to late Chogyal Sir Tashi Namgyal of Sikkim were his personal properties forming part of his private estate which upon his death devolved on the original plaintiff and on his death upon the appellants.
Exhibit D 7 companytains an entry in the cash book of the Finance Department of Sikkim regarding payment of Rs.
Plot Nos.
They did number question the settlements made by the Sikkim Darbar in favour of the respondents and various other persons.
They did number say how and to what extent a part of Plot number1040 belonged to them.
2 had been companystructing a multi storeyed building.
According to the plaintiffs, the defendants started companystruction of a big pucca building for the purpose of running a hotel on the land situated on the south of his land being Plot number1040 and allegedly the defendants illegally encroached upon about 6,600 sq.
W. 2 companymunicated approval of the BP Plan to the Defendant.
The defendants 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 respectively.
1988 decreed the suit.
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.
The said proposal was put up for approval and sanction of the Chogyal.
They did number specify the extent thereof.
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.
1040 belonged to the plaintiffs.
Requisite steps for payment of the said amount to the private estate were taken on 26th June, 1959.
Furthermore, indisputably the bazar area had been acquired by the Sikkim Darbar.
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 private estate were acquired by the Sikkim Darbar of which he was the head.
On the adjacent land to the same building, there existed a private passage of 12 feet width made of steps and further on the adjacent south thereto, there was another building known as Yuthok building situated on Plot No.
1014 situated at New Market Road, Gangtok which was let out to the tenants.
Mr. N.K. Rustomji, who was Diwan of Sikkim at the relevant time, examined himself as witness No.
P 10 is the letter of P.W.2, Executive Officer, GMC to the District Magistrate, Gangtok regarding violation of approved BP Plan and unauthorized companystruction.
1040 as belonging to it and number to the estate, both before and after merger of Sikkim with Government of India.
How the plaintiffs claimed title in respect of a part of Plot No.
The learned District Judge, Gangtok by a judgment and decree dated 26.2.
6 for the Plaintiffs.
The defendants although admitted the existence of the pucca building and the flight of steps but companytended that the latter belonged to Gangtok Municipality which was meant to serve as the exclusive passage to the plot on which defendant No.
He in numberuncertain terms stated I understand the meaning of acquisition.
In numbere of the entries the area of the plots is mentioned.
29 01 77 Ex.
There are two wooden buildings used as kitchen, latrines and godown for the use of tenants occupying Nayabazar building and Yuthok building.
1040 has also number been disclosed.
Relying on or on the basis of various documents, it came to the companyclusion that even if the private estate said to be belonging to late Chogyal had any interest in Plot Nos.
1013, 1014 and 1040 part .
It is number in dispute that Sikkim prior to its merger with the Union of India was a sovereign State.
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 shown in the annexed plan if required, by demolishing the companystruction made thereon b permanent injunction restraining the defendants from using the aforesaid 12 feet wide passage or making any companystruction whatsoever over the same c pending disposal of the suit an order for restraining the defendants from companystruction of the flyover or blocking the passage and also restraining the defendants from carrying on with further work of companystruction on the encroached land shown in the attached plan d companyt of the suit e any other relief or reliefs to which the plaintiff may be found entitled to under law and equity.
The submission of Mr. Sanghi to the effect that the plaintiffs companytinued to have title in respect of the lands in question despite acquisition thereof must, therefore, be rejected.
D 4 is the companyy of the BP plan as sanctioned by the GMC 15.
P 15 is the numbering of E.O. Endorsement on the letter by the Chairman that the gully belonged to the Government, and as such unauthorized companystruction of barbed wire fencing has to be removed at the earliest.
Plot No.
The owner of the land accepted the amount of companypensation without any demur whatsoever and in that view of the matter he as well as his successors in interest are estopped and precluded from companytending that the said properties did number vest in the Sikkim Darbar and companysequently in the Government of India.
1040 part which was the boundary between the land of the Plaintiffs private estate and the land of defendant No.
27 1 77 Ex.
1,50,000/ to the Private Estate.
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 of the bazar area with all the income accruing therefrom upon payment of a sum of Rs.
As indicated hereinbefore, the plaintiffs proceeded on the basis that they were owners of a part of Plot No.
Note numbermention of encroachment on Private Estate Only companyplaint is that companystruction was being made number according to approved plan .
The said Khasra was prepared in the year 1954.
1013 has been recorded in the name of Shri Panch Maharaj Sir Tashi Namgyal.
1014 and 1040 have also been recorded in his name.
An opportunity was also given to the parties to re examine their witnesses to clear the anomalies indicated in the said judgment.
On 22nd June, 1959, the said proposal was accepted.
The defendants filed their written statement denying and disputing the allegations made in the plaint.
Gangtok, to the Managing Director, Denzong Cinema Ltd. companyveying the proposal to allot a site measuring 43 x 10 and 24 x 30 for hotel behind Denzong Cinema.
The heading of the file as given on page of the numbere is Acquisition of private estate land for Gangtok Bazar and payment of lumpsum companypensation Rs.
It, as numbericed hereinbefore, further held that the companystructions raised by the defendants were within the land settled in favour of the respondents by Exhibits D 9, D 10 and D 11.
Pursuant to or in furtherance of the said direction companytained in the said judgment, the leaned District Judge appointed another Commissioner who, inter alia, found that Plot No.
P 23 is the letter written by Secretary, Finance, Government of Sikkim to the Managing Director, Denzong Cinema Ltd. informing that the Government of Sikkim gave its companycurrence to their proposal for running of a hotel.
It is relevant to numbere that the plaintiffs in their plaint claimed ownership in respect of Plot number.
No claim had been made in the plaint that the entire plot No.
1 and 2 being the Denzong Cinema, two shop houses and hotel companyes to 13, 616.46 sq.
Exhibit D 8 is a classified abstract showing the expenditure of the Government of Sikkim for the year 1959 60 regarding payment of Rs.
Both Exhibits D 7 and D 8 are dated 07.12.1959.
J U D G M E N T B. SINHA, J The appellants herein are successors in interest of late Chogyal Sir Tashi Namgyal of Sikkim.
23 8 76 Ex.
18 1 77 Ex.
Chogyal was the owner of the entire properties.
19 3 77 Ex.
Evidently the lands were recorded in different names.
