Appeal in a possession suit dismissed. Court affirmed lower courts' findings that the appellant was a tenant holding over after non-payment of rent, not a purchaser under an oral agreement due to lack of proof of payment.
Appeal dismissed with costs; original decree for possession and recovery of arrears upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Regular Second Appeal No.2594 of 2008
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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
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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.
Regular Second Appeal No.2594 of 2008
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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
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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.
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
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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.
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
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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”
Regular Second Appeal No.2594 of 2008
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Additional District Judge, Gurgaon, vide its judgment and decree dated 26.03.2008.
the instant Regular Second Appeal, has been filed, by the appellant/defendant.
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
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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.
others (JT 2006 (5) SC, 72, while
Regular Second Appeal No.2594 of 2008
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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
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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
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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.
above, the appeal being devoid of merit, must fail and the same stands dismissed with costs.
August 07.2009. dinesh
( Sham Sunder ) Judge
2 issues framed by the court
Whether the High Court can interfere with the concurrent findings of fact on the nature of possession and payment of rent by the tenant-defendant?
Whether the court below was right in holding the defendant was inducted as a tenant and not as a purchaser under an alleged oral agreement?
Colour shows how this judgement treated each authority
Madvan Nair Vs. Bhaskar PillaiReferred¶57
(2005) 10 SCC 533 · Who else cites this
Harjeet Singh Vs. Amrik SinghReferred¶57
(2005) 12 SCC 270 · Who else cites this
H.P. Pyarejan Vs. DasappaReferred¶57
JT 2006(2), SC, 228 · Who else cites this
Gurdev Kaur and others Vs. Kaki and othersReferred¶57
JT 2006 (5) SC, 72 · Who else cites this
2 provisions across 2 enactments
Smt. Savita Yadav
Ram Chander
Sham Sunder
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
