RSA No.3356 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3356 of 1987 Date of decision:29.4.2011 Smt. Harbans Kaur ...Defendant/Appellant Versus Smt. Pritam Kaur and another ...Plaintiff/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: None for the appellant. Mr.R.D.Bawa, Advocate, for the respondents. -.- JITENDRA CHAUHAN, J. The present appeal is directed against the judgment and decree dated 13.10.1987 passed by the learned Additional District Judge, Sirsa, whereby the judgment and decree dated 15.12.1986, passed by the learned trial Court decreeing the suit of Pritam Kaur, plaintiff for possession, was maintained. The brief facts of the present case are that the plaintiff Smt. Pritam Kaur alongwith her husband Darshan Singh purchased the House No.6/236 at Begu Road, Sirsa, for a consideration of Rs.30,000/-, from one Shri Shiv Dayal vide registered sale-deed dated 10.2.1969. Thereafter in the year 1972-73, her husband Darshan Singh constructed the upper portion of the said house. In the year 1980-81, her husband rented out the upper portion to the defendants Harbans Kaur and Tara Singh, wife and husband. They continued to be in occupation of the upper portion. The RSA No.3356 of 1987 2 plaintiff further averred that her husband filed a rent petition for the ejectment of the defendants. However, the same was withdrawn as the relationship of landlord-tenant was denied. The plaintiff also took the stand that in the family settlement, the share of the entire house fell to the share of the plaintiff. The said settlement was recognised by the Court in Civil Suit No.473 of 1984. In spite of that, the defendants are not vacating the upper floor and therefore, the plaintiff filed the suit for possession of the portion in dispute. In the written statement, the defendant No.1 took the stand that the portion in dispute was never rented out to her. The house in dispute was purchased by Darshan Singh, with whom defendant No.1 had been residing as a wife for the last 22-23 years. The defendant No.1 also pleaded that the portion in dispute was constructed by Darshan Singh for which the funds were provided by her. She also took the stand that from their union, four children were born. The defendant No.1 further pleaded that the plaintiff was not owner of the house in dispute and in fact she was the owner and had been residing therein being owner and as wife of Darshan Singh. Defendant Harbans Kaur also filed a counter claim, wherein she reiterated the facts as mentioned in the written statement. In replication, the plaintiff controverted the pleadings of the defendants as mentioned in written statement as well as counter claim. After hearing both the parties, the learned trial Court vide judgment and decree dated 15.12.1986 decreed the suit of the plaintiff by observing that the plaintiff is the absolute owner of the house in dispute and defendant Harbans Kaur is not residing therein as wife of Darshan Singh. RSA No.3356 of 1987 3 Feeling aggrieved by the judgment and order of the learned trial Court, the defendant/appellant preferred an appeal, which was dismissed by the learned first appellate court by holding that the appellant/defendant failed to prove that she is co-owner of the disputed premises or that four children were born to her from the loins of Darshan Singh. Hence, the present appeal, which was admitted on 5.2.1988. No body caused appearance of behalf of the appellant. On 18.4.2011 Sh. G.S.Bawa, learned counsel for the appellant withdrew from the case as Sh.Dheeraj Narula, Advocate was engaged as counsel and he has obtained no objection from Sh.G.S.Bawa, Advocate, on 6.4.2011, which was also placed on record. So the hearing was deferred to 28.4.2011. None appeared on behalf of the appellant on 28.4.2011 and the matter was deferred for today 29.4.2011. Today again, Mr.G.S.Bawa, Advocate, showed inability to argue the case, as the party had taken brief from him. Mr.Dheeraj Narula, Advocate, did not appear though his name was displayed on the display board. Mr.R.D.Bawa, Advoate, submitted that this RSA is of the year 1987, the respondent is in illegal occupation of the house and it is delaying tactics. In this situation, this Court left with no option but to hear the appeal on merits in the interest of justice. Learned counsel for the plaintiff/respondent has submitted that her husband Darshan Singh rented out the portion in dispute to the appellant in the year 1980-81. It has further been submitted that in a family settlement, the entire house fell to the share of the plaintiff, which is evident from the court’s order passed in Civil Suit No.473 of 1984. Learned counsel has also submitted that it is not established that appellant had given any money to Darshan Singh for the purchase, renovation and construction RSA No.3356 of 1987 4 of the house. The appellant had been residing in the upper portion in dispute as a tenant. I have heard the learned counsel for the respondent and perused the record. The question arises for consideration is “whether the judgments and decrees of the courts below are perverse”. It is admitted fact that vide sale-deed, Exhibit P.1, Darshan Singh alongwith his wife Pritam Kaur, plaintiff/respondent, purchased the house in question. This fact is further proved from the statement of Joginder Singh, who deposed that sale-deed, Ex.P1, was scribed by his father. The case of the appellant is that she had been residing in the upper portion of the said house as wife of Darshan Singh for the last 22-23 years and she provided funds to Darshan Singh for construction of portion in dispute after selling her agricultural property. However, from the perusal of record, there is not an iota of evidence except her bald statement with regard to her assertion. However, it is well established from Exhibit PW1/A (copy of decree-sheet) that the house known as `Ashram' was transferred by Darshan singh in favour of Pritam Kaur, the plaintiff. In this regard, Darshan Singh, PW3, deposed that he suffered the said decree. It is admitted fact that the appellant has been residing in upper portion of the house in dispute alongwith her four children, namely Kulwinder Kaur, Kartar Singh, Daljeet Singh and Iqbal Singh. But it is not established that she has been residing as a wife of Darshan Singh in the house. There is no evidence which shows that Darshan Singh married the appellant and four children were born from the loins of Darshan Singh. However, as per the RSA No.3356 of 1987 5 statement of that Gian Singh, PW2, (neighbourer of the defendant/appellant) four children, as mentioned above, were born to the appellant from the loins of Darshan Singh. But in cross-examination, this witness admitted that none of the children was born in his presence and the appellant never legally wedded Darshan Singh. Though the various documents have been filed by the appellant to prove that Darshan Singh is the father of her children, but after going through these documents, I agree with the findings recorded by the courts below. However, it is well established that appellant is wife of Tara Singh and the children, as mentioned above, were born out from the loins of Tara Singh. In the application forms, Exhibit P.1 and P.3, which were for issuance of Ration Card, the name of appellant is mentioned as wife of Tara Singh and the same were also signed by Tara Singh and Kuldeep Singh, respectively. This fact is further proved from the copy of the order dated 1.8.1986, Ex.P7 and voters' list, Ex.P.11, wherein the husband's name of the appellant is mentioned as Tara Singh. As per birth certificate, Ex.P.12, issued by the CMO, the father's name of Daljeet Singh is mentioned as Tara Singh. The appellant has miserably failed to prove as in what capacity she is occupying the property. She has no right, title or interest whatsoever in the property. Her possession is illegal. It is not understandable as to how Harbans Kaur, the appellant, can claim to be the wife of Darshan Singh, when her husband Tara Singh is alive and the wife of Darshan Singh, namely, Pritam Kaur, the plaintiff, is also alive. It is a strange plea which is not corroborated by any oral or documentary evidence. Both the courts below have concurrently held Pritam Kaur to be owner of the house in dispute. It was held by the trial Court that it is not RSA No.3356 of 1987 6 proved that the children of Harbans Kaur were born from the loins of Darshan Singh. This finding of fact was affirmed by the learned first Appellate Court. This Court taking the entire record into consideration is of the view that the findings of both the courts below are well reasoned and based on correct appreciation of documentary and oral evidence. The findings recorded by both the courts below are well reasoned and are not perverse. In the circumstances, the relations between the appellant and Darshan Singh has not been proved on record and accordingly, the appellant is not co-owner of the disputed property. No other substantial question of law arises for determination in the second appeal. There is no scope to interfere in concurrent findings of facts recorded by the courts below. In Madvan Nair V. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 S.C.C. 270, H.P. Pyareja v. Dasappa, AIR 2006 SC 1144: (2006) 2 SCC 496, and Gurdev Kaur and others v. Kaki and others, J.T. 2006(5) S.C. 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of Courts below, is confined only to the hearing of substantial questions of law. 17. In view of the above, no interference is called for in the RSA No.3356 of 1987 7 findings of the courts below. Accordingly, the instant appeal is dismissed with costs. 29.4.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No