PRAKASH BISTA CHETTRI Vs. RABIN RAI

JUDGEMENT

(1.) This is an appeal filed by the appellant/plaintiff against the impugned judgment dated 28-6-2008 in Title Suit No. 3 of 2007 passed by the learned District Judge, South & West Sikkim at Namchi, whereby a suit filed by him against the defendant who is the respondent in this appeal was dismissed.

(2.) The facts involved in the suit are quite brief. It was alleged by the appellant/plaintiff that the respondent/defendant had agreed to sell a piece of land measuring 40' x 40' bearing plot number 492 situated at Nandu Gaon, Poklok Block, South Sikkim, against which an advance of Rs. 1 lakh had been paid by him to the respondent/defendant. A document to that effect termed as "Dhan Rashid" marked as Ext. 1 was executed on 5-4-2007 by the respondent in presence of witnesses in which he had acknowledged the receipt of the said sum as advance and that he had agreed to sell the land to the appellant/plaintiff. It was the case of the appellant/plaintiff, that the respondent/defendant was expected to repay the loan taken by his deceased father, Bom Bahadur Rai, from the State Bank of India, Jorthang Branch, out of the said advance of Rs. 1 lakh, so that he could obtain a No Objection Certificate from the bank, necessary for getting the sale deed in respect of the land registered before the appropriate authority. It is the case of the appellant/plaintiff that the respondent/defendant resiled from the agreement Ext. 1 and also failed to keep his promise made therein of getting the land transferred in his name compelling him to issue a legal notice through his counsel and also filed a petition for appropriate action before the Sub-Divisional Magistrate, South Sikkim at Namchi. Having failed to move the respondent/defendant even thereafter, the appellant/plaintiff filed T.S. Case No. 3 of 2007 before the learned District Judge seeking for a decree for execution and registration of sale deed in respect of the suit-land in his name, interest upon the advance paid to the respondent/defendant, etc.

(3.) It is further the case of the appellant/ plaintiff that the respondent/defendant failed to appear before the learned trial Court despite having received notice issued by the Court and, was accordingly, proceeded ex parte. Affidavits of evidence were affirmed and filed by the appellant/plaintiff and two other witnesses which were confirmed in the absence of the respondent/defendant.