TSHERING DORJEE LEPCHA Vs. CHIMBU LEPCHA

JUDGEMENT

(1.) This second appeal has meandered into this Court on the dis-satisfaction of the Appellant with the impugned Judgment and Decree, of the Learned District Judge, East Sikkim, at Gangtok, dtd. 30/9/2021, in Title Appeal No.02 of 2020 (Chimbu Lepcha and Another vs. Tshering Dorjee Lepcha and Others). The impugned Judgment set aside the Judgment and Decree of the Learned Trial Court, dtd. 30/4/2019, in Title Suit No.01 of 2016, (Tshering Dorjee Lepcha vs. Chimbu Lepcha and Others). The Learned Trial Court had decreed the suit of the Plaintiff, the Appellant herein.

(2.) To comprehend the matter in its entirety, the brief facts of the dispute are required to be considered. The Plaintiff (Appellant herein) filed a suit for Declaration and Specific Performance of Contract, under Sec. 10 of the Specific Relief Act, 1963 (hereinafter, the 'Specific Relief Act'), against the Defendants No.1 and 2 (Respondents No.1 and 2 herein), claiming that, the Defendant No.1 had sold him three plots of land, situated at Lingzey Block, Assam Lingzey, East Sikkim, with the consent of his son, the Defendant No.2, at a mutually fixed consideration value of ? 12,00,000/- (Rupees twelve lakhs) only. An advance payment of ? 2,20,000/- (Rupees two lakhs and twenty thousand) only, is said to have been made by the Plaintiff to the Defendant No.1, on 27/10/2014, reflected in Exhibit 1 'Dhan Rashid' (money receipt), in the presence of the wife of Defendant No.1, his daughter, his son and four other independent witnesses, whose names appear in the said document. Consequent upon such deposit, Exhibit 2, a Sale Deed document, was executed on 14/1/2015 between the Defendant No.1 as the seller and the Plaintiff as the purchaser, in the presence of two witnesses viz.; Tirtha Ram Sharma (PW-6) and Santosh Subba (PW-1). On the same day, i.e., 14/1/2015, another document Exhibit 3, a 'Bandobasta Patra' (Agreement), was executed between the same parties, in the presence of independent witnesses and the wife, son and daughter of the Defendant No.1. They had no objection to the registration of the sold property, in the name of the Appellant. A Certificate to that effect, Exhibit 4, was signed by the family members of the Defendant No.1 including one daughter and one son. Pursuant thereto, a spot verification was conducted by the 'Amin' (Surveyor), and a report, Exhibit 5 prepared. All relevant documents were then submitted in the Office of the Registrar/Sub-Registrar for registration of the suit land in the name of the Plaintiff, which however did not fructify as the Defendant No.2 objected to it. Notwithstanding the Plaintiff's appearance as summoned before the registering authority post the objection, the Defendant No.1 failed to enter appearance, despite several verbal requests made to them by the Plaintiff. That, the Plaintiff is willing to pay the balance amount of ? 9,80,000/-(Rupees nine lakhs and eighty thousand) only, upon which, the Defendant No.1 is duty bound to transfer the suit lands for performance of the contract. Hence, the prayers in the Plaint, seeking a decree declaring that the Defendant No.1 as the owner of the suit land had executed the Sale Deed in the Plaintiff's favour, and thereby has a right to register the Sale Deed in his name, that he has acquired right, title and interest over the suit land. That, the Defendant No.3 be directed to compulsorily register the Sale Deed.

(3.) The Defendants No.1 and 2 opposed the claims of the Plaintiff by averring that, in fact in October 2014, one Tirtha Ram Sharma (PW-6), had offered to loan an amount of ? 2,30,000/-(Rupees two lakhs and thirty thousand) only, to the wife of the Defendant No.1, to enable her to meet the educational expenses of her daughter. Later he approached her to sell him the disputed property. There being a legal bar to transferring the property of a tribal (the community to which the Defendants No.1 and 2 belong), Tirtha Ram Sharma sought to register the property in the name of the Plaintiff, Tshering Dorjee Lepcha, the Appellant herein. Consequently, on execution of the Sale Deed dtd. 14/1/2015, Tirtha Ram Sharma took the Parcha (Title Deed) from the possession of the Defendant No.1, which was later recovered from him on a complaint to the concerned Police Station. That, following the execution of Exhibit 2, neither possession nor interest over the disputed land was transferred to the Plaintiff but Tirtha Ram Sharma started constructing an approach road on it, despite the objection of the family members of the Defendant No.1.