NAR BAHADUR SUBBA Vs. DHAN BAHADUR RAI

JUDGEMENT

(1.) The Petitioner, the Plaintiff before the learned trial Court, (hereinafter "Petitioner"), filed an application under Order VII Rule 11(a) read with Section 151 of the Code of Civil Procedure, 1908 (for short "CPC, 1908"), before the said Court praying that the Counter Claim of the Respondents No. 1 and 2, the Defendants No. 1 and 2 before the learned trial Court (hereinafter "Respondents No. 1 and 2"), be rejected as it did not disclose a cause of action. The learned trial Court, on hearing submissions on both sides, passed the impugned Order dated 12.05.2017 rejecting the prayer of the Petitioner, who is consequently before this Court praying that the impugned Order be set aside.

(2.) The facts of the case may briefly be traversed for clarity on the issue.

(3.) The Petitioner filed a suit for declaration of title, eviction, recovery of possession and other consequential reliefs against the Respondents No. 1 and 2. The Petitioner's case inter alia is that, he is the absolute owner of the landed property at Sirwani Block, East Sikkim being Plot No.143, 145, 146 and 147 as per the Survey Operations of 1950-52 and renumbered as Plot No.220, 225, 226 and 228 respectively, as per the Survey Operations of 1979-80. The Respondent No. 2 is the Petitioner's blood sister and the Respondent No. 1 is his brother-in-law, having married the Respondent No. 2 in the year 1957-58. They were residing on a plot of land gifted to her by her father. The Petitioner's parents having passed away early in his life, his paternal uncle raised him till the year 1971-72. The same year i.e. 1971-72, the Respondent No. 2 sold out the plot of land gifted to her, to the Forest Department, Government of Sikkim and received compensation. Both Respondents then returned to the house of the Petitioner on Plot No.220. The Petitioner got married in 1998 and in 2003, shifted with his family to a house constructed by him on Plot No.225 and 226. The Respondents continued to remain on Plot No.220. Before shifting house from Plot No.220, an Agreement "Bandobast Kagaz" Annexure P-3 was drawn between the Petitioner and the Respondents in the presence of witnesses by which it was agreed that the Respondent No. 1 would construct a house for the Petitioner on the Petitioner's land. The Respondent No. 1 failed to do so. On such failure, the Petitioner perforce had to sell a piece of land from Plot No.225 to one Phigu Bhutia and utilize the money for constructing his house. Vide the same "Bandobast Kagaz" Annexure P-3 the Petitioner had also agreed to gift a "piece" of land from Plot No.220 to the Respondent No. 1. Taking advantage of this document, the Respondent No. 1 transferred the entire Plot No.220 in his name which the Petitioner came to learn of only in January, 2013 when the Respondents No. 1 and 2 started constructing an RCC building over Plot No.220. The transfer allegedly had been effected in the year 2001 itself. The Petitioner therefore prayed for the reliefs reflected in Paragraph 19 of the Plaint.