Sikkim HC Dismisses Forest Department's Appeal, Upholds Landowner's Title Over 1.7560 Hectares at Samardung

The Sikkim High Court dismissed the Forest Department's appeal after finding it failed to prove that 3.23 acres of privately registered land at Samardung constituted reserved forest or had been encroached upon.

Justice Meenakshi Madan Rai, sitting singly at the High Court of Sikkim at Gangtok, dismissed RFA No.09 of 2020 filed by the Divisional Forest Officer (T), Department of Forest, Environment and Wildlife Management and three other State authorities. The appeal challenged a trial court judgment dated 24 December 2019 and a subsequent remand order dated 30 September 2023, both of which had declared Ashok Tshering Bhutia the absolute owner of Plot Nos. 311, 312 and 313, measuring a total area of 1.7560 hectares at Samardung, District Namchi, South Sikkim. The Forest Department's central contention — that 3.23 acres of that land was reserved forest that had been encroached upon — was found unproved at every stage of litigation, and the High Court found no reason to disturb those concurrent findings.

The Dispute Before the High Court

Ashok Tshering Bhutia purchased the three plots from one Jhumki Doma Bhutia on 9 October 2012. After necessary verification, the lands were registered in his name on 17 January 2013. He demarcated and fenced the property. His ownership was recorded in khatiyan No. 116, and the Sub-Registrar/SDM, Namchi, confirmed the registration based on records maintained in that office.

Critically, the Forest Department itself had issued a No Objection Certificate (NOC) on 8 December 2012 — Exhibit 21 — certifying that Plot Nos. 311, 312 and 313 did not fall within forest land. A second NOC dated 27 May 2015 — Exhibit 23 — issued by the same department again certified that the land belonging to Ashok Tshering Bhutia was not forest land and that there was no encroachment into forest land. A spot verification report dated 23 April 2010 — Exhibit 20 — issued by a Survey Inspector of the Land Revenue Department following a joint inspection on 5 April 2010, had similarly recorded that no forest land was encroached upon by the then-owner Donkala Bhutia.

The situation changed in 2016 when the Energy and Power Department identified the Respondent's land for construction of a 66 KV Sub-Station for M/s. Power Grid Corporation of India, Limited. The rate for acquisition was fixed at ₹490 per sq. ft. When the Energy and Power Department sought an NOC from the Forest Department in May 2017, the Forest Department reversed its earlier position. By letter dated 30 June 2017 — Exhibit 12 — the Divisional Forest Officer informed the Respondent that a joint inspection on 21 October 2016 had found that out of 4.33 acres registered in his name, 3.23 acres was forest land that had been encroached upon, requiring immediate eviction.

The Respondent disputed the letter, contending that no such joint inspection had taken place on 21 October 2016 and that the Forest Department's own earlier NOCs contradicted the eviction demand. He filed 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 other State authorities filed a joint written statement and a counter-claim asserting that 3.23 acres was reserved forest and seeking a declaration that they were the exclusive owners of that excess area.

The Forest Department's Case and Its Evidentiary Gaps

The Forest Department's case rested on the cadastral survey of 1950-52. It contended that Plot Nos. 170/171 as per that survey measured only 1.10 acres and were recorded in the name of Hari Krishna Sharma. When the cadastral survey of 1979-80 renumbered those plots as 311, 312 and 313, the area had grown to 4.33 acres in the name of Bishnu Prasad Sharma — an excess of 3.23 acres which, the Department argued, could only be explained by encroachment into the adjacent Tsalumthang reserved forest. The Department relied on a topographical map bearing No. 78 A/8/4 prepared by the Survey of India — marked as “Document-T” — to show the boundaries of the reserved forest.

That topographical map became a central point of failure for the Department's case. During the examination of the Department's own witness, it was admitted that Document-T was a copy, not an original, and was not certified by any competent authority. The trial court rejected an application filed under Section 151 of the Code of Civil Procedure, 1908, by which the Department sought to have the document re-marked as an exhibit rather than a mere document. The trial court's order rejecting that application was never challenged and attained finality. The High Court noted that the toposheet was therefore never exhibited and carried no probative value.

The Department's witness K. B. Ghalay, a retired Divisional Forest Officer, certified the joint inspection report dated 21 October 2016 — Exhibit D-1 — but admitted during cross-examination that he was absent when the alleged inspection took place and that the report was submitted to him after the inspection. He further admitted that there are no conclusive records of the lands of the Forest Department and that the Department is dependent on the compilation made by the Land Revenue Department.

The original owner Hari Krishna Sharma, examined as a witness for the Respondent, stated that Plot Nos. 170/171 as per the 1950-52 survey were renumbered as 311, 312 and 313 in the 1979-80 survey and that the area was more than 1.10 acres. He denied the entries in Exhibit D-8 as he was aware the plot was bigger than what those records reflected. 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 land, and that jurisdiction concerning forest lands is governed by the toposheet issued by the Central Government — a document the Department had failed to produce in original.

The Remand and the Additional Issues

The appellants had first approached the High Court against the trial court's judgment of 24 December 2019. A Single Bench comprising Bhaskar Raj Pradhan, J., by order dated 12 April 2022, found it appropriate to invoke 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 and measured only 1.10 acres (onus on the Forest Department).
• 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 (onus on the Forest Department).
• Whether the subsequent transfers of the suit land to the extent of the excess 3.23 acres could be rendered void (onus on the Forest Department).

The trial court was directed to take additional evidence if required and return its findings within six months. Four additional witnesses were examined on each side. The trial court's remand order dated 30 September 2023 concluded that the Forest Department could not prove any of the three additional issues with cogent evidence. It found that the suit land was originally numbered as Plot No. 170/171 per the 1950-52 survey but was renumbered as 311, 312 and 313 in the 1979-80 survey, and that the subsequent transfers were done following due process and in view of the NOCs, and therefore could not be rendered void.

Before the High Court, the Additional Advocate General argued that the trial court had returned no findings on the additional issues despite the direction. Justice Meenakshi Madan Rai rejected that argument. A reading of Paragraphs 9 to 11 of the remand order showed that findings, though not happily worded, had been returned. The trial court had addressed each issue and concluded that the Department had failed to discharge the onus placed on it.

How the High Court Reasoned

The High Court examined the chain of title carefully. The suit land had changed hands four times from 1990 onwards — from Bishnu Prasad Sharma to Ong Tshering Bhutia, then to Donkala Bhutia in 2005, to Jhumki Doma Bhutia in 2011, and finally to Ashok Tshering Bhutia in 2012. At no point during any of these transfers did the Forest Department raise any objection to registration. The registered sale deeds, parcha khatiyan (title deeds), and mutation orders consistently reflected Plot Nos. 311, 312 and 313 with the same area across all transactions.

The Court acknowledged the settled legal position 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. However, the Court observed that the contra position required the Forest Department to furnish documentary evidence establishing its own ownership or demonstrating that the land was reserved forest. That burden was not discharged.

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. The Government Gazette Notification dated 29 November 1983 had notified that the old land records of 1951 would cease to be in operation and the new records would come into force. The Court held, however, that this did not mean the 1951 records were shut out entirely for the purpose of corroborating possession. Since land was measured in acres before 1979-80 and in hectares thereafter, with plot numbers renumbered, the earlier survey could still be used to verify the area of land held by a particular owner, as the external boundaries would continue to be the same. The Court relied on its own earlier decision in K. B. Bhandari v. Laxuman Limboo and Another, 2017 SSC OnLine Sikk 122, for this proposition.

The Court also addressed the counter-claim filed by the Forest Department. The trial court had dismissed it, and no appeal was filed against that dismissal. The High Court held that the dismissal of the counter-claim had therefore attained finality. Separately, the counter-claim was also defective under the proviso to Section 34 of the Specific Relief Act, 1963: the Department had sought only a declaration of title without including a prayer for recovery of possession, even though it claimed to have been dispossessed due to faulty survey operations. A court cannot grant a bare declaration of title where the plaintiff is able to seek further relief such as recovery of possession but omits to do so.

The Additional Advocate General had sought during oral submissions to file an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to exhibit the original topographical sheet. No such application was ultimately filed. The Court noted this without further comment.

The Appellants' reliance on the Supreme Court's judgment in T.N. Godavarman Thirumulkpad v. Union of India and Others, (1997) 2 SCC 267, for the proposition that “forest land” under Section 2 of the Forest Conservation Act, 1980, includes any area recorded as forest in government records, did not assist the Department. The Court's reasoning was that the Department had failed to produce any government record — original or certified — recording the suit land as forest land. The principle in Godavarman presupposes the existence of such a record; without it, the argument could not be sustained on the facts of this case.

Outcome

The High Court dismissed RFA No. 09 of 2020. The impugned judgment dated 24 December 2019 and the impugned order dated 30 September 2023, both in Title Suit No. 02 of 2017, were held to warrant no interference. Ashok Tshering Bhutia's declaration as absolute owner of Plot Nos. 311, 312 and 313 measuring a total area of 1.7560 hectares at Samardung, Burul Block, South Sikkim, stands. The letter dated 30 June 2017 issued by the Divisional Forest Officer demanding eviction remains declared null and void. Parties were directed to bear their own costs. The judgment is approved for reporting and a copy is to be transmitted to the trial court forthwith along with its records. Pending applications, if any, stand disposed of.