Regular Second Appeal No.2594 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2594 of 2008 Date of decision: 07.08.2009 Smt. Savita Yadav wife of Sh. Dev Dutt, r/o Economy Type Flat No. 97, HEWO Apartment Sector 31/32 Gurgaon. ..... Appellant. Versus Ram Chander s/o Sh. Bakhtawar Singh r/o Chandigarh through his General Power of Attorney Subhash Deswal son of Shri Ranbir Singh, r/o 63, HSEB Colony, Jharsa Road Gurgaon, Tehsil and District Gurgaon. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Sanjay Vij, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree Regular Second Appeal No.2594 of 2008 -2- dated 07.01.2008, rendered by the Court of Civil Judge (Junior Division), Gurgaon, vide which it decreed the suit of the plaintiff for recovery and the judgment and decree dated 26.03.2008, rendered by the Court of Additional District Judge, Gurgaon,vide which it dismissed the appeal. 2. The facts, in brief, are that Ram Chander, plaintiff, claimed himself to be the owner of flat no.97 alongwith common scooter parking Nos. 97 to 104, situated at ground floor, Sectors 31-32, Haryana Employees Welfare Organization apartments, Gurgaon, as the same was allotted to him by the Haryana Urban Development Authority. The possession of the flat, aforesaid, was delivered to the plaintiff, vide letter dated 02.06.2002. The flat, in dispute, was rented out to the defendant on 01.06.2002, at the rental of Rs.4500/- per month, by Subhash Deswal, General Power of Regular Second Appeal No.2594 of 2008 -3- Attorney of the plaintiff. The defendant was also required to pay maintenance charges amounting to Rs.200/- per month, alongwith water, sewerage and electricity charges. The defendant paid the monthly rent at the rate of Rs.4500/-, for the months of June and July, 2002 and, thereafter, did not make payment thereof despite several demands. It was stated that an amount of Rs.54000/- as arrears of rent from 01.08.2002 to 31.7.2003 became due against the defendant. It was further stated that the defendant also filed a suit for permanent injunction, against the plaintiff and his General Power of Attorney Subhash Deswal on 04.08.2003, which was pending in the Court of Civil Judge (Senior Division), Gurgaon. Since the plot, in question, fell beyond the limits of Municipal Committee, Gurgaon, the provisions of Haryana Urban ( Rent Control and Eviction) Act, 1973, were not applicable. Accordingly, a notice under Regular Second Appeal No.2594 of 2008 -4- Section 106 of the Transfer of Property Act, terminating the tenancy of the defendant on 29.09.2003 was served. On the final refusal of the defendant, to make the payment of the arrears of rent and vacate the demised premises, left with no alternative, a suit for possession by way of ejectment and recovery of the amount, in question, was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing the written statement, wherein, it was pleaded that he paid a sum of Rs.5,00,000/- to Subhash Deswal, General Power of Attorney of the plaintiff, who agreed to transfer the plot, in question, in his favour. It was further stated that no written agreement was executed, as the ownership of flat, could not be transferred for a certain period. It was further stated that all the documents concerning the flat, were handed over to the defendant alongwith possession Regular Second Appeal No.2594 of 2008 -5- thereof. It was further stated that the defendant had been in possession of the said flat since then, on the basis of oral agreement, which was entered into between him and the plaintiff, through his attorney and not as a tenant. It was denied that the flat, in question, was rented out on payment of Rs.4500/- per month. The remaining averments, contained in the plaint, were denied, being wrong. 4. In the counterclaim, the defendant claimed that the flat was liable to be transferred, in her name, as she had already paid the entire consideration thereof to the plaintiff through his General Power of Attorney. 5. From the pleadings of the parties, the following issues, were struck by the trial Court :- “1- Whether the plaintiff is entitled a decree for possession by way of the defendant from the flat in question ?OPP Regular Second Appeal No.2594 of 2008 -6- 2- Whether the plaintiff is entitled for recovery of Rs.81,000/- as arrears of rent/mesne profits alongwith interest as alleged, in the plaint ?OPP 3- Whether the plaintiff is estopped from filing the present suit by his own act and conduct ?OPD 4- Relief.” 5-A. Vide order dated 23.11.2007, following issue regarding counterclaim was also framed by the trial Court: “ Whether defendant is entitled to get the ownership of plot, in question, transferred in her name ?OPD” 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial decreed the suit. 7. Feeling aggrieved, an appeal was preferred by the appellant-defendant, which was also dismissed by the Court of Regular Second Appeal No.2594 of 2008 -7- Additional District Judge, Gurgaon, vide its judgment and decree dated 26.03.2008. 8. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/defendant. 9. I have heard the Counsel for the appellant, and have gone through the documents on record, carefully. 10. The Counsel for the appellant, submitted that the appellant was in possession of the flat, on the basis of the oral agreement to sell, entered into between her and the plaintiff, through his General Power of Attorney. He further submitted that the appellant paid the entire sale consideration of flat, amounting to Rs.5,00,000/- to Subhash Deswal, General Power of Attorney of the plaintiff, who agreed to transfer the flat, in question, in her favour, but the same (flat) could not be legally transferred, in her favour. He further submitted that the original Regular Second Appeal No.2594 of 2008 -8- receipt regarding payment of the price of flat, in question, however, could not be produced by him, on the record. He further submitted that the appellant was never inducted as a tenant, in the flat, in dispute, and, as such, the plaintiff was not entitled to the decree for possession as also for recovery of the amount. He further submitted that the Courts below, did not properly appreciate the evidence, on record, and, thus, illegally decreed the suit. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be 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 Regular Second Appeal No.2594 of 2008 -9- 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. It was not denied by the defendant (now appellant) in the written statement that the plaintiff was allotted the flat, in question, vide allotment letter dated 18.05.2001, Ex.P-2. She also admitted his possession in the flat, in question. According to the defendant(now appellant), she came into possession of the flat, in Regular Second Appeal No.2594 of 2008 -10- question, on the basis of oral agreement agreement to sell, which was entered into between her and Subash Deshwal, General Power of Attorney, of the plaintiff and that she paid the entire sale consideration of Rs.5,00,000/-. No receipt, regarding the payment of the aforesaid amount, was produced and proved, on record, by the defendant (now appellant). The Courts below, were right in holding that the defendant was inducted in the flat, in question, as a tenant at a monthly rental of Rs.4500/- and she paid the rent only for a period of two months and thereafter, she failed to do so. The Courts below were also right in holding that a notice under Section 106 of the Transfer of Property Act, was duly served upon the defendant and her tenancy was terminated. The Courts below were also right in coming to the conclusion that the plaintiff was entitled to the decree for possession, as also recovery of the amount with interest. The Regular Second Appeal No.2594 of 2008 -11- concurrent findings of facts, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. 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. ( Sham Sunder ) August 07.2009. Judge dinesh