Regular Second Appeal No.58 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.58 of 2008 Date of decision:10.08.2009 Swaran Kaur widow of late Kartar Singh r/o village Jalmana, Tehsil and District Karnal, now r/o Gali No.1, Shiv Colony, Kaithal Road, Karnal. ..... Appellant. Versus 1. Ramesh son of Ram Kishan, 2. Rambir son of Ram Kishan, residents of village Kurlan, Tehsil and District Karnal. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Namit Sharma, Advocate for the appellant. Mr. Parminder Singh, Advocate for the respondents. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree Regular Second Appeal No.58 of 2008 -2- dated 12.05.2006, rendered by the Court of Civil Judge (Junior Division),Karnal, vide which it dismissed the suit of the plaintiff and the judgment and decree dated 18.09.2007, rendered by the Court of Additional District Judge, Karnal, vide which it dismissed the appeal. 2. The facts, in brief, are that the plaintiff/appellant claimed herself to be the owner of two shops alongwith some open courtyard, as fully described in the head note of the plaint, and shown in the site plan. It was stated that the said property was the ancestral property of the husband of the plaintiff. The husband of the plaintiff, during his life time, gave one shop, situated on the Southern side to defendant no.1 at a monthly rent of Rs.800/-. It was further stated that after the death of Kartar Singh, her husband, the plaintiff being his legal heir, became the owner thereof. The defendant started paying rent to the plaintiff, but in the month of Regular Second Appeal No.58 of 2008 -3- March, 1998, he became dishonest. It was further stated that on 06.03.1998, the defendant, came to the house of the plaintiff and wanted to obtain her thumb impressions, stating that the Haryana State Electricity Board had disconnected the electric connection, and, in order to get restored the same, he (defendant) wants to make an application before the appropriate authority. It was further stated that the plaintiff, being an illiterate lady, believed the version of defendant no.1, and thumb marked some stamp papers at his asking. In the month of September 1998, when she approached the defendants for payment of rent, they told that they had become owners thereof. Lateron, the plaintiff came to know that the papers upon which the defendants had obtained her thumb impressions, were converted into an agreement to sell. It was further stated that a criminal case was registered at Police Station Assandh. The defendants Regular Second Appeal No.58 of 2008 -4- forcibly demolished the structure of the said shops and now bent upon to raise the construction of new shops. It was further stated that the defendants were asked many a time, not to raise construction thereon, but to no avail. Ultimately, a suit for permanent injunction was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was pleaded that the plaintiff had no locus standi to file the suit; that the plaintiff had concealed the material facts from the Court; that no cause of action accrued in favour of the plaintiff; and that the plaintiff was estopped by her own act and conduct from filing the suit. It was stated that the agreement to sell dated 16.03.1998 was executed, in favour of the defendants, for a consideration of Rs.2,67,000/-, which they had paid and the possession thereof was delivered to them. It was further stated that in the criminal Regular Second Appeal No.58 of 2008 -5- case, a compromise had been effected between the parties, on the application, moved by the plaintiff. The remaining averments, contained in the plaint were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- Whether the plaintiff is owner of two shops alongwith court yard ?OPP 2- Whether the said shop is ancestral property in the hand of the plaintiff ?OPP 3- Whether the plaintiff has no locus standi to file the present suit?OPD 4- Whether no cause of action arose in favour of the plaintiff ?OPD. 5- Relief.” 5 The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the Regular Second Appeal No.58 of 2008 -6- case, the trial Court dismissed the suit. 6. Feeling aggrieved, an appeal was filed by the appellant-plaintiff, which was also dismissed by the Court of Additional District Judge, Karnal, vide its judgment and decree dated 18.09.2007. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 9. The Counsel for the appellant submitted that, originally Kartar Singh, husband of the plaintiff, was owner of the property, in dispute, and after his death, she became the owner thereof. He further submitted that the Courts below were wrong in coming to the conclusion, that the plaintiff had not been able to establish her ownership, over the property, in dispute, and, as such, was not entitled Regular Second Appeal No.58 of 2008 -7- to the permanent injunction. He further submitted that the agreement to sell, which was set up by the defendants (now respondents), was a forged and fabricated document. He further submitted that the judgments and decrees of Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that the Courts below were right in coming to the conclusion, that the plaintiff failed to prove either tenancy of the defendants or her ownership, in respect of the property, in dispute. He further submitted that the judgments and decree of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be Regular Second Appeal No.58 of 2008 -8- recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 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 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 the Courts below, is confined only to the hearing of substantial questions of law. Regular Second Appeal No.58 of 2008 -9- No rent note, if executed or the rent receipt was produced by the plaintiff to prove the creation of tenancy, in favour of the defendants, by her husband, in respect of the property, in dispute. The oral evidence produced by the plaintiff did not prove the creation of tenancy in favour of the defendants, in respect of the property, in dispute. Ex.DW2/A, dated 27,01.1998, Ex.DW2/B, dated 22.01.1998 and Ex.DW2/C dated 02.02.1998, the agreements to sell, were executed by the plaintiff, in favour of the defendants, after receipt of a sum of Rs.2,67,000/-, Rs.67,000/- and Rs.33,000/- respectively. These documents were duly proved by Anand Parkash, Deed Writer, (DW-2), M. P. Kaushik, Notary Public, Assandh, (DW-3) Puran Chand, (DW-4), and Rambir Singh, defendant no.2, who appeared as DW-5. These documents bore the thumb impressions of the plaintiff (now appellant) and duly signed by the attesting witnesses. No Regular Second Appeal No.58 of 2008 -10- doubt, no sale deed has been executed, in favour of the defendants/respondents, but on the basis of the agreements to sell, referred to above, they were put in possession of the property, in dispute, after receipt of the entire sale consideration, by the plaintiff. No evidence was produced by the plaintiff to prove that the agreements to sell were the result of fraud. In these circumstances, the Courts below were right in coming to the conclusion that the version set up by the plaintiff to the effect that the property, in dispute, was rented out to the defendants, was completely belied from the evidence, on record, and the defendants, being in possession of the property, in dispute, in part performance, of the agreements to sell, could not be restrained from raising construction thereon. The concurrent findings of fact, on the aforesaid points, recorded by the Courts below, being based on the Regular Second Appeal No.58 of 2008 -11- correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. The plaintiff/appellant, shall however, be entitled to file a suit for possession, if otherwise maintainable, under the provisions of law. ( Sham Sunder ) August 10, 2009 Judge dinesh