Sikkim HC Dismisses Forest Department's Appeal After It Fails to Prove Reserved Forest Claim Over 3.23 Acres

The Sikkim High Court upheld a landowner's title over 1.7560 hectares at Samardung, finding the Forest Department produced no cogent evidence that the disputed area was reserved forest land.

The High Court of Sikkim at Gangtok has dismissed an appeal filed by the Divisional Forest Officer (T), Department of Forest, Environment and Wildlife Management, and three other State authorities, after finding that they could not establish by any documentary evidence that 3.23 acres of land registered in the name of a private buyer constituted reserved forest. Justice Meenakshi Madan Rai, sitting singly, confirmed the title of Ashok Tshering Bhutia over plot nos. 311, 312 and 313, measuring a total area of 1.7560 hectares at Samardung, District Namchi, South Sikkim. The judgment, pronounced on 15 May 2026 in RFA No. 09 of 2020, also held that the Forest Department's counter-claim, dismissed by the trial court, had attained finality because no separate appeal was filed against that dismissal.

The Dispute Before the High Court

Ashok Tshering Bhutia purchased three plots of land, plot no. 311 measuring 0.5960 hectares, plot no. 312 measuring 0.0460 hectares, and plot no. 313 measuring 1.1140 hectares, from one Jhumki Doma Bhutia on 09-10-2012. The lands were registered in his name on 17-01-2013 after verification, and he demarcated and fenced them. His ownership was further supported by a letter dated 01-12-2016 from the Sub-Registrar/SDM, Office of the District Collectorate, Namchi (Appellant No. 4), confirming that land measuring 1.7560 hectares under khatiyan No. 116 was recorded in his name.

Two No Objection Certificates had been issued by the Forest Department itself: Exbt 21 dated 08-12-2012 and Exbt 23 dated 27-05-2015, both certifying that the land in question did not fall within forest land and that there was no encroachment into forest land by the Respondent or his predecessor.

In 2016, the Energy and Power Department (Appellant No. 3) identified the Respondent's land for construction of a 66 KV Sub-Station for M/s. Power Grid Corporation of India, Limited, with the rate for acquisition fixed at Rs. 490/- per sq. ft. When Appellant No. 3 sought an NOC from Appellant No. 1 for this acquisition, the Forest Department instead issued a letter dated 30-06-2017 (Exbt-12) to the Respondent, claiming that a joint inspection on 21-10-2016 had found 3.23 acres out of the total 4.33 acres to be forest land encroached upon by the Respondent, and demanding his immediate eviction.

The Respondent challenged this letter, filed a legal notice, and then instituted Title Suit No. 02 of 2017 before the District Judge, South Sikkim, Namchi, seeking a declaration of absolute ownership and a permanent injunction. The Forest Department and the PCE-cum-Secretary of the Forest Department filed a joint written statement and a counter-claim asserting that they were the exclusive owners of the excess 3.23 acres, relying on cadastral survey records of 1950-52 which showed the original plot nos. 170/171 as measuring only 1.10 acres in the name of Hari Krishna Sharma.

Trial Court Findings and the Remand

The District Judge decided eight issues. On the central question of whether the 3.23 acres was reserved forest land, the trial court found that the Forest Department had failed to prove ownership or that the suit land fell within reserved forest. It declared the Respondent the absolute owner of the suit land, held that the letter dated 30-06-2017 was issued without authority, declared that letter null and void, and dismissed the counter-claim of the Forest Department.

The Forest Department and the other State authorities appealed. A Single Bench of the High Court, comprising Bhaskar Raj Pradhan, J., vide Order dated 12-04-2022, invoked Order XLI Rule 25 of the Code of Civil Procedure, 1908, and framed three additional issues for trial: whether the suit land was originally plot no. 170/171 as per the 1950-52 cadastral survey measuring only 1.10 acres; whether the same plot was renumbered as 311/312/313 in the 1979-80 survey with an excess area of 3.23 acres of forest land included; and whether the subsequent transfers of the suit land to the extent of the excess 3.23 acres could be rendered void. The onus on all three issues was placed on the Forest Department. The trial court was directed to take additional evidence and return findings within six months.

On remand, the trial court recorded the evidence of four additional witnesses for the Appellants and four for the Respondent. In its Order dated 30-09-2023, the trial court concluded that the Appellants could not prove any of the three additional issues with cogent evidence, and that they had failed to establish that there was an excess area of 3.23 acres of forest land.

How the Bench Reasoned

Justice Meenakshi Madan Rai examined the evidence and the findings of both the original trial and the remand proceedings in detail.

On the question of documentary proof, the Court found that the Respondent had established his title through a chain of registered sale deeds and title documents. The original owner Bishnu Prasad Sharma had sold to Ong Tshering Bhutia (Exbt-15), who sold to Donkala Bhutia (Exbt-17), who sold to Jhumki Doma Bhutia (Exbt-19), who sold to the Respondent (Exbt-1). In each transaction, the plot numbers and area remained consistent: plot nos. 311, 312 and 313 measuring 0.5960, 0.0460 and 1.1140 hectares respectively. The parcha khatiyan (Exbt-2) and mutation order (Exbt-22) corroborated this chain. A spot verification report dated 23-04-2010 (Exbt-20), issued by the Survey Inspector, Namchi, following a joint inspection on 05-04-2010 in the presence of the land owner, representatives of the Forest Department, LANCO Private Limited and the Land Revenue Department, had also confirmed that no forest land was encroached by the then owner Donkala Bhutia.

The Court took care to note, however, that mutation in revenue records neither creates nor extinguishes title and carries no presumptive value on title, citing Sawarani v. Inder Kaur and Others, (1996) 6 SCC 223, and Bhimabai Mahadeo Kambekar (dead) through Legal Representative v. Arthur Import and Export Company and Others, (2019) 3 SCC 191. The title in this case rested on the registered deeds of conveyance, not on mutation entries alone.

Against this, the Forest Department's case rested principally on the Joint Inspection Report Exbt D-1 and a topographical sheet bearing No. 78 A/8/4 (marked as “Document-T”). The Court found both to be of no probative value. The topographical sheet had been marked only as “Document-T” and not as an exhibit. The trial court had, on 07-11-2019, rejected an application by the Forest Department under Section 151 of the CPC to have it re-marked as an exhibit, after finding that the witness for the Forest Department had herself stated it was a copy and not an original, and that it was not certified by any competent authority. That order was never challenged and had attained finality.

The Forest Department's own witness, K. B. Ghalay, a retired Divisional Forest Officer who had certified Exbt D-1, admitted that he was absent when the alleged joint inspection of 21-10-2016 took place and that the document was submitted to him after the inspection. He further admitted that there are no conclusive records of the lands of the Forest Department, which is dependent on the compilation made by the Land Revenue Department. The Respondent's witness G. B. Subba admitted there was no written documentation to establish that the Land Revenue Department does not have jurisdiction over forest lands.

The Court also addressed the argument that the suit land had changed hands four times since 1990 without any objection from the Forest Department at the time of any registration, and that the claim of encroachment was raised only after the Energy and Power Department sought to acquire the land for the Power Grid project in 2016-17.

On the relevance of the 1950-52 survey records, the Court disagreed with the Respondent's submission that those records had no relevance after the 1979-80 survey came into force. Referring to the Government Gazette Notification dated 29-11-1983 (which notified that the old land records of 1951 would cease to be in operation and the new land records of 1979-80 would come into force), and to its own earlier decision in K. B. Bhandari v. Laxuman Limboo and Another, 2017 SSC OnLine Sikk 122, the Court held that the 1950-52 records are not shut out for the purpose of corroborating possession of property held by different individuals, since the external boundaries of land owned by a person would continue to be the same. The change was one of measurement units (from acres to hectares) and renumbering of plots, not an erasure of earlier records for verification purposes.

That said, the Court found that the Forest Department had simply not discharged the burden placed on it. The argument that 1.10 acres in the name of Hari Krishna Sharma in 1950-52 had grown to 4.33 acres in the name of Bishnu Prasad Sharma was not proved by any documentary evidence. The toposheet was not furnished in original or exhibited. The alleged encroachment by the series of private owners was not established despite the Forest Department's verbal claims.

The Counter-Claim and the Specific Relief Act

The Court also addressed the Forest Department's counter-claim, which had sought a declaration that it was the absolute owner of the excess 3.23 acres and that the Respondent be evicted. The trial court had dismissed this counter-claim in its Judgment dated 24-12-2019. The Forest Department did not file any separate appeal against that dismissal. The Court held that as a consequence, the dismissal of the counter-claim had attained finality.

Separately, the Court found that the counter-claim was also defective under the proviso to Section 34 of the Specific Relief Act, 1963. The Forest Department had sought only a declaration of title without also praying for recovery of possession, even though it claimed to have been dispossessed of the suit land due to the faulty survey operations of 1979-80. Where a party is able to seek further relief than a mere declaration of title, the court cannot grant a bare declaration. The absence of a prayer for recovery of possession was fatal to the counter-claim on this ground as well.

The Court further held that under Order VIII Rule 6A(2) of the CPC, a counter-claim has the same effect as a cross-suit, and the party filing it bears the same burden of proof as a plaintiff. The Forest Department had not discharged that burden. Relying on Ramesh Chand v. Om Raj and Others, 2022 SCC OnLine HP 2094, the Court confirmed that the failure to challenge the dismissal of the counter-claim meant that judgment had obtained finality.

Outcome

Justice Meenakshi Madan Rai dismissed RFA No. 09 of 2020 in its entirety. The impugned Judgment dated 24-12-2019 and the impugned Order dated 30-09-2023, both passed in Title Suit No. 02 of 2017 by the District Judge, South Sikkim, Namchi, were held to warrant no interference. Parties were directed to bear their own costs. A copy of the judgment was directed to be transmitted to the trial court forthwith along with its records. All pending applications, if any, were disposed of.