C.R.P. No. 02 of 2016. Case: Udor Cho Sum of the Tashiding Monastery Vs Udor Cho Sum of the Karma Rabtenling Monastery. Sikkim High Court
| Case Number | C.R.P. No. 02 of 2016 |
| Counsel | For Appellant: Doma T. Bhutia, Rachhitta Rai and Babita Rai, Advocates and For Respondents: Jorgay Namka, Panila Theenga and Pema Bhutia, Advocates |
| Judges | Meenakshi Madan Rai, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11(a); Indian Contract Act, 1872 - Section 25; Specific Relief Act, 1963 - Sections 16, 16(c), 6; Transfer of Property Act, 1882 - Section 54 |
| Judgement Date | March 14, 2017 |
| Court | Sikkim High Court |
Order:
Meenakshi Madan Rai, J.
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The Petitioner in this Revision Petition, assails the findings of the learned Trial Court in Title Suit No. 03 of 2015, dated 29.03.2016, rejecting its prayers in a Petition filed under Order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908.
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It is urged before this Court that the Respondents herein failed to disclose a cause of action before the learned Trial Court, inasmuch as although it was claimed that the Suit was under Section 6 of the Specific Relief Act, 1963, however, no averment was made in terms of the provision of Section 16(c) to the effect that the Respondent has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. To buttress her submissions on this aspect, learned Counsel for the Petitioner, placed reliance on Pt. Pretn Raj vs. The D.L.F. Housing and Construction (Private) Ltd. and another AIR 1968 SC 1355.
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It was also canvassed that the Suit is barred by Law, as documents relied on by the Respondents viz. an "Agreement" allegedly drawn up between the Petitioners and Respondents on 15.04.2015, and a "Hathay Chltta" (Hand Note) purporting to be a Sale Deed document, have not been registered either in terms of the Sikkim State Rules, Registration of Document, 1930, or the provisions of Section 54 of the Transfer of Property Act, 1882, and is, therefore, invalid in the eyes of Law. That, as per the Circular of the Department of Ecclesiastical Affairs, Government of Sikkim dated 15th May, 1992, any action taken by any individual or the "Duchi" collectively concerning monastery lands, without clearance from the Ecclesiastical Department will be considered as unauthorized action, liable to be treated as null and void. Further, Section 25 of the Contract Act, 1872, lays down that an agreement without consideration is void unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay the debt barred by limitation law. No consideration was made when the alleged agreement was drawn up and in fact, it is the case of the Respondents that the Suit property was sold by two monks, which is unsubstantiated by any proof. That, the Suit is vexatious and filed for the purpose of grabbing the land of the Petitioners and that the learned Trial Court erred in concluding that the Law point was confined only to the Law of Limitation, hence, the assailed Order be set aside.
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Per contra, repudiating the submissions of the Petitioner, learned Counsel for the Respondent while on the one hand conceding that no specific averment as required under Section 16(c) of the Specific Relief Act, 1963, has been made in the Plaint, contended that nonetheless perusal of the prayers in the Plaint would clearly indicate that the Plaintiff also sought a decree, inter alia, as follows;
"18............................................................................................
(a) A decree declaring that the Plaintiff is/was the legal owner in possession of the wooden house measuring.0120 Hectares constructed on Plot No. 712 under Parcha Khatian No. 14 standing in the name of the Tashiding Monastry (sic), West Sikkim.
(b) A decree...
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