THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
th
DATED : 26 March, 2024
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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.59 of 2023
Petitioner : Bishnu Maya Rai
versus
Respondents : Dr. Rameshwar Prasad and Others
Application under Article 227 of the Constitution of India
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Appearance
Mr. N. Rai, Senior Advocate with Mr. Yozan Rai and Ms. Tara
Devi Chettri, Advocates for the Petitioner.
Mr. Sudhir Prasad, Advocate for the Respondents No.1 and 2.
None present for the Respondent No.3.
Dr. (Mrs.) Doma T. Bhutia, Additional Advocate General with Mr.
S. K. Chettri, Government Advocate for the Respondents No.4 to
7.
Ms. Tamanna Chettri, Advocate for the Respondent No.8.
Mr. Dewen Sharma Luitel, Advocate (Legal Aid Counsel) for the
Respondent No.9.
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ORDER
Meenakshi Madan Rai, J.
1. Aggrieved by the Order dated 21-11-2023 of the Court
of the Learned Principal District Judge, at Gangtok, in Title Appeal
No.05 of 2022 (Dr. Rameshwar Prasad and Others vs. Chief Secretary,
Government of Sikkim and Others), which allowed an application filed
by the Respondents No.1, 2 and 3 herein, under Order XXVI Rule 9
and 10 read with Section 151 of the Code of Civil Procedure, 1908,
he Petitioner has invoked the jurisdiction
(hereinafter, the “CPC”), t
of this Court under Article 227 of the Constitution of India.
2. The Learned First Appellate Court having heard and
considered the application filed by the Respondents No.1, 2 and 3,
WP(C) No.59 of 2023 2
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
the Appellants before the said Court, under Order XXVI Rule 9 and
10 read with Section 151 of the CPC ordered inter alia as follows;
. Commission for local
“…………………………………
investigation can be made even at the appellate stage
to determine the identity/location/demarcation of the
suit property and also when there is conflicting in the
documentary and oral evidence about the suit
property (sic.).
For the reasons mentioned above and also
invoking Section 107 of the CPC, 1908, the
application is allowed in the interest of justice.
All the parties have agreed to the name of Shri
Pramit Chettri, Ld. Counsel to be appointed as a
Commissioner for making local investigation in this
case. The Commissioner shall accordingly verify the
location of plot no.882 and demarcate the same in the
presence of all the parties. Apart from the other
documents of this case, the cadastral survey records
of 1952-56 should be referred while making the local
investigation. A report along with maps and
photographs will be submitted before this Court on
28.12.2023.
…………………………………………………………………………”
3. Before this Court, Learned Senior Counsel for the
Petitioner contends that the Learned First Appellate Court has
appointed the Commissioner for local investigation for one of the
suit properties i.e., plot no.882, although many aspects of the said
plot of land have already been determined and attained finality.
That, there is enough oral and documentary evidence including the
admission of the Respondents No.1, 2 and 3 herein about the
physical location of the said plot. Reverting to the facts of the
case, it was urged by Learned Senior Counsel for the Petitioner that
initially Title Suit No.02 of 2010 (Dr. Rameshwar Prasad and Others
vs. Chief Secretary, Government of Sikkim and Others), was filed
before the Court of Learned District Judge, Special Division II,
–
East Sikkim, at Gangtok. Issues no.5 and 6 framed by the Learned
Court were as follows;
“…………………………………………………………………………………..
5. Whether the suit land falls under plot No.882? If
it does fall under plot No.882, then in whose
name the plot No.882 stands recorded?
WP(C) No.59 of 2023 3
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
6. Whether the plot No.882 measures only 38 feet
by 25 feet?
…………………………………………………………………………………..”
The Learned Court vide it Judgment dated 30-03-2011
concluded that plot no.882 which the Respondents No.1, 2 and 3
herein claimed to have been purchased by their ancestors,
on 10-03-1955. It also further
measures an area of 38’ x 25’
concluded that as far as continuous possession of the Respondents
No.1, 2 and 3 herein over the suit property is concerned, they have
not been able to prove their possession over the suit property since
plot no.882 measures an area of 38 feet x 25 feet only and not
2280 sq. feet. as claimed by them. The suit of the Respondents
No.1, 2 and 3 was ultimately dismissed.
(i) An Appeal against the dismissal was preferred before
this High Court being Regular First Appeal No.01 of 2011 (Dr.
Rameshwar Prasad and Others vs. The Chief Secretary, Government of
Sikkim and Others), where this High Court in Paragraph 27 of its
Judgment dated 30-06-2011 was pleased to determine as follows;
It is also clear from the above that the
“27.
house purchased by the ancestors of the appellants
vide sale deed, Ext.2 was only a double storied
wooden house measuring 38 x 25 bearing plot
’ ’
no.882. Even assuming that the appellants and their
ancestors were in possession of the vacant land
surrounding that wooden house as claimed by them,
no right would flow in their favour for want of their
title and ownership over the land, as the seller lacked
the necessary saleable right over it. At best they can
in law be termed as squatters on Government land
who would be liable to be evicted by the Government
under the relevant provisions of law. The site allotted
to respondent no.4 is a distinct and separate plot on
plot no.881.
”
(ii) It was further submitted that against the Judgment of
this Court, Special Leave to Appeal (Civil) No(s).24765/2011 (Dr.
Rameshwar Prasad and Others vs. Chief Secretary, Government of
Sikkim and Others), was filed before the Hon’ble Supreme Court of
WP(C) No.59 of 2023 4
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
India, which came to be dismissed in limine vide Order dated 06-
02-2012. Hence, the findings in the suit attained finality.
(iii) That, the present suit being Title Suit No.12 of 2014
(Dr. Rameshwar Prasad and Others vs. Chief Secretary, Government of
Sikkim and Others), has been filed by the Respondents No.1, 2 and
3 herein, before the Court of Learned Civil Judge, East Sikkim, at
Gangtok, alleging encroachment of plot no.882 by the Petitioner
while furthering the construction of her building on plot no.881,
after the disposal of the previous suit. That, the matter having
reached finality on plot no.882, the Learned First Appellate Court
was in error in allowing the appointment of a Commissioner to
make local investigation, hence the assailed Order of the Learned
Principal District Judge, at Gangtok, be set aside.
(iv) The Petition under Article 227 of the Constitution of
India is accompanied by an application for Stay wherein the
Petitioner prays that the operation of the Order of the Learned First
Appellate Court, dated 21-11-2023 be stayed until further orders.
4. Learned Counsel for the Respondents No.1 and 2 on
the other hand submits that no error arises in the impugned Order
of the Learned First Appellate Court, dated 21-11-2023 as
admittedly this High Court has held in its Judgment, dated 30-06-
2011 (supra) referred to by Learned Senior Counsel for the
Petitioner that a double storied wooden house, measuring 38 feet x
25 feet stood on plot no.882 which was purchased by the ancestors
of the Respondents No.1, 2 and 3 vide Sale Deed, Exhibit 2. That,
although in their application under Order XXVI Rule 9 and 10 read
with Section 151 of the CPC before the Learned First Appellate
Court the Respondents No.1, 2 and 3 have prayed for
WP(C) No.59 of 2023 5
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
ascertainment of the true location of plot no.882 and to demarcate
plot no.882 as per Exhibit 33 (Map of 1952-56) leaving the road
reserve area on the eastern side, set back area and boundaries on
all four sides, however now they seek to confine their prayer only
to demarcation of the area of 38 feet x 25 feet on which a double
storied wooden house existed on plot no.882, based on the finding
of this High Court in Paragraph 27 of the Judgment dated 30-06-
2011 (supra).
5. The parties also filed their respective applications
before this Court seeking to place additional documents on record,
being I.A. No.02 of 2024 by the Respondent No.2 and I.A. No.03 of
2024 by the Petitioner. These documents admittedly have already
been exhibited before the Learned Trial Court and are not fresh
additional documents. These documents I find at this juncture do
not require perusal, the issue before this Court being circumscribed
to whether at the Appellate stage an application under Order XXVI
Rule 9 and 10 read with Section 151 of the CPC can be considered
by the Learned First Appellate Court.
6. Learned Additional Advocate General for the State-
Respondents No.4 to 7 for her part submitted that she has no
objection to the appointment of the Commissioner as ordered by
the Learned First Appellate Court in the impugned Order. Learned
Counsel reasoned that there is Government land around the
disputed plots between the private parties which are being
encroached by all and sundry and demarcation of the area as
prayed for by Respondents No.1, 2 and 3 would give the matter
finality and closure and in fact would not be adverse to any party.
WP(C) No.59 of 2023 6
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
7. Learned Counsel for the Respondents No.8 and 9 had
no specific submissions to make.
8. I have given due consideration to the submissions put
forth by Learned Counsel for the parties and perused the pleadings
and all documents on record.
9. In the context of the matter at hand it would be
advantageous to refer to
M.P. Rajya Tilhan Utpadak Sahakari Sangh
Maryadit, Pachama, District Sehore and Others vs. Modi Transport
1
, where the Supreme Court observed as follows;
Service
37. Order 26 Rule 9 of the Code gives wide
“
powers to the court to appoint a Commissioner to
make local investigations which may be requisite or
proper for elucidating any matter in dispute,
ascertaining the market value of any property,
account of mesne profit or damages or annual net
profits. Under Order 26 Rule 11, the court has the
power to issue a commission in a suit, in which
examination of adjustment of accounts is necessary,
to a person as it thinks fit directing him to make such
examination or adjustment. When a court issues such
a commission to such a person, it can direct the
Commissioner to make such an investigation,
examination and adjustment and submit a report
thereon to the court. The Commissioner so appointed
does not strictly perform a “judicial act which is
binding” but only a “ministerial act”. Nothing is left
to the Commissioner’s discretion, and there is no
occasion to use his judgment or permitting the
Commissioner to adjudicate and decide the issue
involved; the Commissioner’s report is only an
opinion or noting, as the case may be with the details
and/or statement to the court the actual state of
affairs. Such a report does not automatically form
part of the court’s opinion, as the court has the
power to confirm, vary or set aside the report or in a
given case issue a new commission. Hence, there is
neither abdication nor delegation of the powers of
functions of the court to decide the issue. Sometimes,
on examination of the Commissioner, the report forms
part of the record and evidence.
[A. Nagarajan v. A.
Madhanakumar, 1996 SCC OnLine Mad 17 ] The parties can
contest an expert opinion/Commissioner’s report,
and the court, after hearing objections, can
determine whether or not it should rely upon such an
expert opinion/Commissioner’s report. Even if the
court relies upon the same, it will merely aid and not
bind the court. In strict sense, the Commissioners’
reports are “non-adjudicatory in nature”, and the
courts adjudicate upon the rights of the parties.”
(emphasis supplied)
1
(2022) 14 SCC 345
WP(C) No.59 of 2023 7
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
10. Earlier in time in
Suryanarayana Reddy and Others vs.
2
, the Supreme
Nawab Md. Kabiruddin Khan (Dead) by Lrs. and Others
Court was pleased to hold as follows;
3. The power to appoint a Commission to
“
make local investigation conferred on the Court by
Order 26 Rule 9 CPC is available to be exercised by
the trial court and also by any court of appeal.
Whether the High Court would interfere with the
findings of fact or not, is a question which will be gone
into at the time of final hearing and all the pleas
which are sought to be urged before this Court, are
available to be urged before the High Court.
”
(emphasis supplied)
11. In light of the said pronouncements and bearing in
mind the purpose of the application, the Commissioner appointed
by the Learned First Appellate Court as agreed to by the parties,
shall now demarcate the area measuring 38 feet x 25 feet on which
a double storied wooden house stood on plot no.882, in terms of
the finding of this Court in Paragraph 27 of its Judgment, dated 30-
06-2011, in Regular First Appeal No.01 of 2011 (Dr. Rameshwar
Prasad and Others vs. The Chief Secretary, Government of Sikkim and
Others) already extracted hereinabove.
12. As elucidated in
M.P. Rajya Tilhan Utpadak Sahakari Sangh
(supra), the parties can
Maryadit, Pachama, District Sehore and Others
contest , and the Learned Court, after
the Commissioner’s report
hearing objections, can determine whether or not it should rely
up That, even if the Court relies
on the Commissioner’s report.
upon the same, it will merely aid and not bind the Court as the
not be adjudicatory in nature as the
Commissioner’s report would
Courts adjudicate upon the rights of the parties. The assistance of
the cadastral survey records of 1952-56 can be referred to while
demarcating the above stated area. The assailed Order of the
2
(2004) 13 SCC 703
WP(C) No.59 of 2023 8
Bishnu Maya Rai vs. Dr. Rameshwar Prasad and Others
Learned First Appellate Court, dated 21-11-2023, stands modified
to the extent detailed above.
13. Petition stands disposed of accordingly as also all other
pending applications.
14. Copy of this Order be forwarded to the Learned Court
below for information.
( Meenakshi Madan Rai )
Judge
26-03-2024
Approved for reporting : Yes
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