UDAI SAPKOTA Vs. LAXMI PRASAD SAPKOTA

JUDGEMENT

(1.) THIS Appeal arises out of the impugned judgment dated 31 -05 -2011, passed by the Learned District Judge, Special Division -1, Sikkim at Gangtok, in Title Suit No. 15 of 2010, whereby suit for declaration, recovery of possession, etc., filed by the Appellant against the Respondents was dismissed.

(2.) THE case of the Appellant as would be material for the purpose of this Appeal is that the Respondent No.2 who is the father of the Appellant, is the owner of Schedule "A" properties that includes Plots No. 303 and 313 purchased by him from one Shri Tara Nidhi Sapkota, his elder brother. It is stated that out of the Schedule "A" property a portion measuring about 20' x 20' and 40' x 75' out of Plot No. 404 were sold out to one Shri Budhilal Khulal and one Shri Khem Raj Koirala respectively of the same village. At the time when the suit was filed, the Appellant was still a minor and was represented by his mother and next friend, Smt. Deo Maya Sapkota. The genesis of the dispute is traced to April, 2004, when the Respondent No. 1 constructed a 'kutcha' house on Plot No.451 on being permitted to do so by the Defendant No. 2, the latter having pledged the said Plot to the father of the Respondent No. 1 against a sum of Rs.1661.55. When confronted, the Respondent No. 1 claimed that Plot No. 451, described in Schedule "B" to the plaint which is the suit land, was purchased by him from Respondent No. 2. It is stated that in the first place the Respondent No. 2 had never sold that suit land to the Respondent No. 1 and, in the second it was claimed to be his ancestral property inherited by his father, the Respondent No. 2, from Late Dharmananda Sapkota, the father of the Respondent No. 2 and the grandfather of the Appellant. Therefore, in the absence of consent of the Appellant and his mother, the sale is a nullity, void, illegal and inoperative in law. It is further averred that effots were made through the Panchayat and other village elders to settle the matter expressing his and his mother's readiness to repay the dues of his father to the Respondent No. 1 to get the suit land redeemed but, the Respondent No. 1 avoided taking part in the meetings. On the above causes, the Appellant prayed for various reliefs, principals of which were (a) declaration that the suit property is an ancestral and coparcenary property of the Appellant and his father, the Respondent No. 2,(b) for cancellation of sale of the suit land, if any, by the Respondent No. 2 in favour of the Respondent No. 1 and declaring the title of Respondent No. 2 over the Schedule "B" land and (c) for possession of the suit property in favour of the Appellant with a direction upon the Respondent No. 1 to remove his 'kutcha' house from the suit land.

(3.) IT is the case of the Respondent No. 1 that he had decided to settle at Linkey for which purpose he had constructed a pucca house there, but the Appellant's father, the Respondent No. 2 herein, also related to him as paternal uncle, asked him to live near him at Samdong and, as he was in dire need of money to run his house, offered a plot of land on sale for him to construct a house. In due regard to such offer and the wishes of his uncle, the Respondent No.1 shifted to Samdong in the year 2003 and stayed with the Respondent No. 2 until completion of his own house. In pursuance of his offer, the Respondent No. 2 sold him a dry field bearing Plot No. 451, i.e. the Schedule "B" land, on 01 -03 -2004 by a Sale Deed document duly executed by him in his house in presence of the Appellant, the Appellant's mother, the Respondent No. 2 himself and other witnesses. The Respondent No. 1 then constructed a pucca house on the land having four rooms with separate toilets and bathrooms by taking loans from his relatives which he repaid in the year 2005 after obtaining another one from the State Bank of India, Dickchu Branch. Having thus purchased the suit land, the Respondent No. 1 not only constructed the pucca house but also substantially developed it by planting fodder and fruit plants.