DURGA PRASAD PRADHAN Vs. PALDEN LAMA

JUDGEMENT

(1.) The suit giving rise to this Second Appeal for the second time was decreed by the trial Court ex parte. The First Appeal therefrom to the Court of the District Judge was dismissed as time-barred, but the Second Appeal to this Court was allowed and the case was remanded to the Court of the District Judge for hearing the First Appeal on merits. The learned District Judge having again dismissed the First Appeal, though this time on merits, the appellant has again come up in Second Appeal before us.

(2.) The facts, shorn of details not necessary for our present purpose, may briefly be stated. The Principal Respondent Palden filed the suit against the proforma Respondent Rangalal and the Appellant Durga Prasad on the allegation that Rangalal agreed to sell the suit land to him, received a portion of the consideration money executed a sale deed in his favour and submitted the deed for registration in the office of the Registrar on 10-2-1973. In accordance with the Rules relating to registration of documents in force in Sikkim, notices were issued inviting claims or objections, if any, to such registration, notifying that the document would be registered on 11-3-1973, if no claim or objection was received within that period. It does not appear from the records that any such claim or objection was received and the learned counsel for both the parties have also submitted that there was no such claim or objection. We have, therefore, failed to understand, nor the learned counsel appearing for the parties have been able to tell us, the reason as to why the document was not registered on 11-3-1973 or at any time thereafter before April next, when, according to the finding of both the Courts below, "the sale-document was destroyed by fire when the District Office was set on fire during the political disturbances in April, 1973 and consequently the registration of sale was held up". The case of the plaintiff further is, as it would appear from the judgment of the District Judge, that "taking advantage of the destruction of the original sale-document the defendant No. 1 (i.e., Rangalal Pro forma-Respondent before us) again sold the suit-land to Durga Prasad Pradhan, defendant No. 2 (i.e., the Appellant before us) sometime in the middle of 1974 by executing a sale-document which was submitted for registration to the office of the Registrar, West District. The plaintiff filed an objection to the registration of the said sale-deed on 5-6-1974 and the plaintiff was advised to seek remedy in the Civil Court and hence he filed the suit for declaration of title and restoration of possession of the suit land by compelling the defendant No. 1 to register the suit land in the name of the plaintiff by canceling the proposed sale-document in favour of Defendant No. 2". As already noted, the suit was decreed ex parte by the Civil Judge and the First Appeal therefrom, which was originally dismissed by the District Judge as time-barred, has again been dismissed by him on merits after the same was remanded to him by this Court for consideration on merits and the District Judge has affirmed the judgment of the Civil Judge whereby "the registration of the sale-deed in respect of" the suit-land "executed by the defendant No. 1 in favour of the defendant No. 2" was declared "null and void" and the defendant No. 2 was "ordered to effect registration of" the suit-land "in favour of the plaintiff" on receipt of the balance price and it was further ordered that otherwise the plaintiff would "deposit the remaining consideration amount with the office of the Registrar, West" who would "cause compulsory registration of the" "land in favour of the plaintiff". In other words, the Civil Judge decreed specific performance of the agreement to sell the suit-land by the Pro forma Respondent in favour of the Principal Respondent and in consequence, set aside the subsequent sale of the suit-land by the Pro forma Respondent in favour of the Appellant and the District Judge has also affirmed his judgment.

(3.) The first point that has been urged by Mr. Sarkar, appearing for the appellant, which also appears to have been urged by him before the District Judge, though without success, is that since the decree granted by the trial Judge was nor specific performance of the agreement to sell the suit-land made by the defendant-respondent No. 2 in favour of the plaintiff-respondent No. 1, the Civil Judge was wrong in passing the decree and the District Judge was equally wrong in affirming the same on appeal as the plaintiff did neither plead nor prove that be had always been ready and willing at all relevant time to perform his part of the contract.