RSA-1059-2025 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-1059-2025(O&M) Decided on : 02.04.2025 Hans Raj ...... Appellant Versus Surjeeto Devi and another ...... Respondents CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL *** Present : Ms. Himani Anand, Advocate for the appellant. *** VIKRAM AGGARWAL , J (ORAL) CM-3768-C-2025 This is an application preferred by the applicant-appellant under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 for producing documents i.e. pronote/receipt of Rs.17,000/-, mortgage deed alongwith special power of attorney executed by the applicant-appellant in favour of the husband of the plaintiff and deposition of Balwinder Singh in Sessions Case No.119 of 2016 by way of additional evidence. It has been averred in the application that the said documents are relevant for the proper adjudication of the case and that despite due diligence, the same could not be produced before the learned trial Court as also the learned First Appellate Court. I have heard learned counsel for the applicant-appellant. Learned counsel submits that the documents now sought to be MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 2 produced on record by way of additional evidence are essential for the just decision of the case and that despite due diligence, the same could not be produced either before the learned trial Court or before the learned First Appellate Court. I have considered the submissions made by learned counsel for the applicant-appellant but find the same to be devoid of merit. The applicant-appellant seeks to produce three documents by way of additional evidence viz. Pronote/receipt of Rs.17,000/- (Annexure A-8) stated to have been executed on 08.10.2014 between Palwinder Singh and applicant- appellant, mortgage deed dated 11.05.2007 alongwith special power of attorney executed by the applicant-appellant (Annexure A-13) in favour of the husband of the plaintiff and the deposition of Balwinder Singh in Sessions Case No.119 of 2016 (Annexure A-5). The said documents are sought to be produced to show that there were financial dealings between Tek Chand and the applicant-appellant. These documents were well within the knowledge of the applicant-appellant and no effort was made to produce the same either before the learned trial Court or before the learned First Appellate Court. No plausible explanation for not producing the same before the two Courts has been furnished. This Court is also not convinced that the said documents would be essential for the decision of the case. Still further, the applicant-appellant has miserably failed to prove that despite due diligence, the said documents could not be produced before the learned trial Court or before the learned First Appellate Court. Such documents cannot be permitted to be produced merely to fill up the lacunae. That being so, the application is found to be devoid of merit and is accordingly dismissed. MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 3 RSA-1059-2025 (O&M) This is defendant No.1’s second appeal against the judgment and decree dated 05.02.2025, passed by the Court of learned Additional District Judge, Kurukshetra, dismissing the appeal filed by defendant No.1 against the judgment and decree dated 22.08.2019, passed by the Court of learned Civil Judge (Junior Division), Pehowa, vide which the suit for possession and for recovery of rent and mesne profits, filed by the plaintiff was partly decreed. 2. 2. For the sake of convenience and clarity, parties shall be referred to as per their original status. 3. The plaintiff instituted a suit for possession by way of ejectment with respect to residential house (fully described in the plaint) (hereinafter referred to as ‘the house in dispute’), situated at Saini Mohalla in Abadi of Village Ismailabad, Sub-Tehsil Ismailabad, District Kurukshetra. Recovery of Rs.42,000/- alongwith mesne profits was also sought. 4. The case set up by the plaintiff was that the plot over which the house in dispute had been constructed, was purchased by the plaintiff for a sale consideration of Rs.5,00,000/- from one Smt. Manjeet Kaur wife of Balwinder Singh vide registered sale deed dated 20.03.2012. Manjeet Kaur had purchased the said property from its previous owner Roshan Lal Saini vide registered sale deed dated 21.10.2008. When the plot was purchased, only one room was constructed whereafter construction was raised by the plaintiff. The house in dispute was taken on rent by the defendants in August, 2012 at the rate of Rs.3,000/- per month. The rent had not been paid since 01.06.2015 despite repeated requests. Requests to vacate the house in dispute were also not acceded to. MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 4 5. In fact, defendant No.2 (Raj Devi, wife of defendant No.1-appellant Hans Raj) got a false FIR No.78 dated 11.06.2016 registered against the husband of the plaintiff under Sections 376, 506 IPC at Police Station Ismailabad. In view of the same, the tenancy of the defendants was terminated by the plaintiff and a notice under Section 106 of the Transfer of Property Act, 1882 was given. Under the circumstances, the suit was filed. 6. The suit was opposed by defendant No.1-appellant. (Defendant No.2 did not contest the suit and was accordingly proceeded against ex parte). In the written statement, preliminary objections as regards maintainability, locus standi, jurisdiction, concealment of facts etc. were raised. On merits, the case set up was that the defendants had taken the house in dispute on rent from one Balwinder Singh. Balwinder Singh wanted to sell the house in dispute to the defendants. An oral agreement was entered into. Total sale consideration was fixed at Rs.7,45,000/-. Rs.50,000/- was paid as earnest money. However, the defendants could not arrange the total sale consideration and contacted Tek Chand, husband of the plaintiff for financial assistance. He agreed to provide financial assistance on the condition that the sale deed of the house in dispute would be executed in the name of a person of his choice. Accordingly, the defendants paid Rs.6,00,000/- whereas balance amount of Rs.95,000/- was paid by Tek Chand and sale deed was executed in favour of the wife of Tek Chand i.e. Surjeeto (plaintiff). 7. It was also averred that Tek Chand had an evil eye on defendant No.2 as a result of which he forced her to have physical relations with him. Under pressure, she had to agree to the same. However, a complaint was filed against Tek Chand but the same was dismissed by the Court of learned Additional Sessions Judge, Kurukshetra vide judgment dated 31.05.2017. A stand was also MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 5 taken that in 2016, an electricity connection had also been taken by the defendants in their name. 8. In the replication, the averments made in the written statement were denied and those made in the plaint were reiterated. 9. From the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for a decree for possession by way of ejectment in respect of the house in dispute as prayed for. OPP 2. Whether the plaintiff is entitled for a decree for recovery of ````42,000/- along with mense profit till the possession is handed over to the plaintiff or in the alternative a decree for possession along with mense profit, as prayed for. OPP 3. Whether the suit of the plaintiff is not maintainable as he has no locus standi to file and maintain the present suit. OPD 4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee ad jurisdiction. OPD 5. Whether the plaintiff has concealed the true and material facts from the Court. OPD 6. Relief. 10. Parties led their respective evidence. 11. The trial Court partly decreed the suit filed by the plaintiff and the appeal filed against the said decision was dismissed, leading to the filing of the present regular second appeal. 12. I have heard learned counsel for the appellant. 13. Learned counsel for the appellant-defendant No.1 has strenuously urged that both the Courts erred in decreeing the suit filed by the respondent- MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 6 plaintiff. Reference has been made to the documents sought to be produced on record by way of additional evidence. It has also been submitted that there was an oral agreement between the defendants and Tek Chand as a result of which, on the demand of Tek Chand, sale deed qua the house in dispute was executed in favour of the plaintiff. Learned counsel has also made reference to the FIR registered by defendant No.2 against the husband of the plaintiff namely Tek Chand. Learned counsel has referred to the judgments passed by the learned trial Court and the First Appellate Court and has submitted that the said judgments are not sustainable. Learned counsel has made detailed reference to the record i.e. the pleadings and the depositions and has submitted that there were financial dealings between the defendants and Tek Chand. It would be relevant to mention here that most of the depositions have been placed on record alongwith the appeal. 14. I have considered the submissions made by learned counsel for the appellant and have also perused the relevant record which was available with the learned counsel for the appellant and the statements annexed alongwith the appeal. 15. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab & Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Cout in the case of ‘Pankajakshi (Dead) through Rs and others versus Chandrika and others’, (2016) (6) SCC 157 followed by judgments of the Supreme Court in the cases of ‘Kirodi (Since Deceased) through his Lr. Versus Ram Parkash & Ors’, 2019 (3) R.C.R. (Civil) 168 and‘Sayender and Ors, Versus Saroj and Ors.’, 2022 (12) Scale 92. Relying upon the law laid down in the aforesaid judgments, no substantial question of law is required to be framed and MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 7 this Court shall proceed to answer the question which arises for consideration. 16. Coming to the appeal in hand, the version of the defendants is oral. The stand that they had some financial dealings with Tek Chand was not proved by way of any evidence worth its name except for the bald statements of defendant No.1 Hans Raj who appeared as DW4 as also Balwinder Singh (DW5) and Palwinder Singh (DW6). The plaintiff became the owner of the house in dispute vide registered sale deed dated 20.03.2012. Hans Raj defendant No.1 while appearing in the witness box, admitted in his cross examination that they were in possession of the house in dispute since 2007-2008 as tenants of Manjeet Kaur and the rent earlier was Rs.1200/- per month. At the cost of repetition, it needs to be mentioned that no evidence worth its name was produced by the defendants to prima facie prove their case. 17. Under the circumstances, the trial Court, while rightly relying upon the sale deed in favour of the plaintiff held that the defendants were not tenants under the plaintiff but could be taken to be unauthorized occupants as the plaintiff was unable to prove that they were tenants under the plaintiff. Accordingly, the suit was rightly partly decreed and a decree for possession was passed alongwith a direction to the defendants to pay mesne profits @ Rs.1200/- per month from the date of filing of the suit till realization. The First Appellate Court also returned the same findings and upheld the judgment passed by the learned trial Court. 18. There is another aspect of the matter. Though, for the purposes of decision of the civil suit, the same may not be relevant to the extent of relying upon the same, but would definitely show the conduct of the defendants. FIR No.78 dated 11.06.2016 was registered under Sections 376, 506 IPC at Police Station Ismailabad, on a complaint submitted by defendant No.2 levelling MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 8 allegations of rape against Tek Chand, husband of the plaintiff. Tek Chand was acquitted by the Court of learned Additional Sessions Judge, Kurukshetra vide judgment dated 31.05.2017 and strong observations were recorded against defendant No.2. This fact does show one thing that the defendants are in the habit of levelling false allegations and raising false claims. The claim of the defendants as regards financial dealings with Tek Chand and the sale deed having been executed in favour of the plaintiff at the instance of Tek Chand fell to the ground on account of no evidence having been led to prove the same. Both the Courts examined the matter from the correct perspective and recorded pure findings of fact and decreed the suit. 19. I do not find any illegality whatsoever in the concurrent findings of facts recorded by both the Courts warranting interference in second appeal. In view of the above, I do not find any merit in the present appeal and the same is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly. (VIKRAM AGGARWAL) JUDGE 02.04.2025 mamta Whether speaking/reasoned Yes/No Whether Reportable Yes/No MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-1059-2025(O&M) Decided on : 02.04.2025 Hans Raj ...... Appellant Versus Surjeeto Devi and another ...... Respondents CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL *** Present : Ms. Himani Anand, Advocate for the appellant. *** VIKRAM AGGARWAL , J (ORAL) CM-3768-C-2025 This is an application preferred by the applicant-appellant under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 for producing documents i.e. pronote/receipt of Rs.17,000/-, mortgage deed alongwith special power of attorney executed by the applicant-appellant in favour of the husband of the plaintiff and deposition of Balwinder Singh in Sessions Case No.119 of 2016 by way of additional evidence. It has been averred in the application that the said documents are relevant for the proper adjudication of the case and that despite due diligence, the same could not be produced before the learned trial Court as also the learned First Appellate Court. I have heard learned counsel for the applicant-appellant. Learned counsel submits that the documents now sought to be MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 2 produced on record by way of additional evidence are essential for the just decision of the case and that despite due diligence, the same could not be produced either before the learned trial Court or before the learned First Appellate Court. I have considered the submissions made by learned counsel for the applicant-appellant but find the same to be devoid of merit. The applicant-appellant seeks to produce three documents by way of additional evidence viz. Pronote/receipt of Rs.17,000/- (Annexure A-8) stated to have been executed on 08.10.2014 between Palwinder Singh and applicant- appellant, mortgage deed dated 11.05.2007 alongwith special power of attorney executed by the applicant-appellant (Annexure A-13) in favour of the husband of the plaintiff and the deposition of Balwinder Singh in Sessions Case No.119 of 2016 (Annexure A-5). The said documents are sought to be produced to show that there were financial dealings between Tek Chand and the applicant-appellant. These documents were well within the knowledge of the applicant-appellant and no effort was made to produce the same either before the learned trial Court or before the learned First Appellate Court. No plausible explanation for not producing the same before the two Courts has been furnished. This Court is also not convinced that the said documents would be essential for the decision of the case. Still further, the applicant-appellant has miserably failed to prove that despite due diligence, the said documents could not be produced before the learned trial Court or before the learned First Appellate Court. Such documents cannot be permitted to be produced merely to fill up the lacunae. That being so, the application is found to be devoid of merit and is accordingly dismissed. MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 3 RSA-1059-2025 (O&M) This is defendant No.1’s second appeal against the judgment and decree dated 05.02.2025, passed by the Court of learned Additional District Judge, Kurukshetra, dismissing the appeal filed by defendant No.1 against the judgment and decree dated 22.08.2019, passed by the Court of learned Civil Judge (Junior Division), Pehowa, vide which the suit for possession and for recovery of rent and mesne profits, filed by the plaintiff was partly decreed. 2. 2. For the sake of convenience and clarity, parties shall be referred to as per their original status. 3. The plaintiff instituted a suit for possession by way of ejectment with respect to residential house (fully described in the plaint) (hereinafter referred to as ‘the house in dispute’), situated at Saini Mohalla in Abadi of Village Ismailabad, Sub-Tehsil Ismailabad, District Kurukshetra. Recovery of Rs.42,000/- alongwith mesne profits was also sought. 4. The case set up by the plaintiff was that the plot over which the house in dispute had been constructed, was purchased by the plaintiff for a sale consideration of Rs.5,00,000/- from one Smt. Manjeet Kaur wife of Balwinder Singh vide registered sale deed dated 20.03.2012. Manjeet Kaur had purchased the said property from its previous owner Roshan Lal Saini vide registered sale deed dated 21.10.2008. When the plot was purchased, only one room was constructed whereafter construction was raised by the plaintiff. The house in dispute was taken on rent by the defendants in August, 2012 at the rate of Rs.3,000/- per month. The rent had not been paid since 01.06.2015 despite repeated requests. Requests to vacate the house in dispute were also not acceded to. MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 4 5. In fact, defendant No.2 (Raj Devi, wife of defendant No.1-appellant Hans Raj) got a false FIR No.78 dated 11.06.2016 registered against the husband of the plaintiff under Sections 376, 506 IPC at Police Station Ismailabad. In view of the same, the tenancy of the defendants was terminated by the plaintiff and a notice under Section 106 of the Transfer of Property Act, 1882 was given. Under the circumstances, the suit was filed. 6. The suit was opposed by defendant No.1-appellant. (Defendant No.2 did not contest the suit and was accordingly proceeded against ex parte). In the written statement, preliminary objections as regards maintainability, locus standi, jurisdiction, concealment of facts etc. were raised. On merits, the case set up was that the defendants had taken the house in dispute on rent from one Balwinder Singh. Balwinder Singh wanted to sell the house in dispute to the defendants. An oral agreement was entered into. Total sale consideration was fixed at Rs.7,45,000/-. Rs.50,000/- was paid as earnest money. However, the defendants could not arrange the total sale consideration and contacted Tek Chand, husband of the plaintiff for financial assistance. He agreed to provide financial assistance on the condition that the sale deed of the house in dispute would be executed in the name of a person of his choice. Accordingly, the defendants paid Rs.6,00,000/- whereas balance amount of Rs.95,000/- was paid by Tek Chand and sale deed was executed in favour of the wife of Tek Chand i.e. Surjeeto (plaintiff). 7. It was also averred that Tek Chand had an evil eye on defendant No.2 as a result of which he forced her to have physical relations with him. Under pressure, she had to agree to the same. However, a complaint was filed against Tek Chand but the same was dismissed by the Court of learned Additional Sessions Judge, Kurukshetra vide judgment dated 31.05.2017. A stand was also MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 5 taken that in 2016, an electricity connection had also been taken by the defendants in their name. 8. In the replication, the averments made in the written statement were denied and those made in the plaint were reiterated. 9. From the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for a decree for possession by way of ejectment in respect of the house in dispute as prayed for. OPP 2. Whether the plaintiff is entitled for a decree for recovery of ````42,000/- along with mense profit till the possession is handed over to the plaintiff or in the alternative a decree for possession along with mense profit, as prayed for. OPP 3. Whether the suit of the plaintiff is not maintainable as he has no locus standi to file and maintain the present suit. OPD 4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee ad jurisdiction. OPD 5. Whether the plaintiff has concealed the true and material facts from the Court. OPD 6. Relief. 10. Parties led their respective evidence. 11. The trial Court partly decreed the suit filed by the plaintiff and the appeal filed against the said decision was dismissed, leading to the filing of the present regular second appeal. 12. I have heard learned counsel for the appellant. 13. Learned counsel for the appellant-defendant No.1 has strenuously urged that both the Courts erred in decreeing the suit filed by the respondent- MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 6 plaintiff. Reference has been made to the documents sought to be produced on record by way of additional evidence. It has also been submitted that there was an oral agreement between the defendants and Tek Chand as a result of which, on the demand of Tek Chand, sale deed qua the house in dispute was executed in favour of the plaintiff. Learned counsel has also made reference to the FIR registered by defendant No.2 against the husband of the plaintiff namely Tek Chand. Learned counsel has referred to the judgments passed by the learned trial Court and the First Appellate Court and has submitted that the said judgments are not sustainable. Learned counsel has made detailed reference to the record i.e. the pleadings and the depositions and has submitted that there were financial dealings between the defendants and Tek Chand. It would be relevant to mention here that most of the depositions have been placed on record alongwith the appeal. 14. I have considered the submissions made by learned counsel for the appellant and have also perused the relevant record which was available with the learned counsel for the appellant and the statements annexed alongwith the appeal. 15. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab & Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Cout in the case of ‘Pankajakshi (Dead) through Rs and others versus Chandrika and others’, (2016) (6) SCC 157 followed by judgments of the Supreme Court in the cases of ‘Kirodi (Since Deceased) through his Lr. Versus Ram Parkash & Ors’, 2019 (3) R.C.R. (Civil) 168 and‘Sayender and Ors, Versus Saroj and Ors.’, 2022 (12) Scale 92. Relying upon the law laid down in the aforesaid judgments, no substantial question of law is required to be framed and MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 7 this Court shall proceed to answer the question which arises for consideration. 16. Coming to the appeal in hand, the version of the defendants is oral. The stand that they had some financial dealings with Tek Chand was not proved by way of any evidence worth its name except for the bald statements of defendant No.1 Hans Raj who appeared as DW4 as also Balwinder Singh (DW5) and Palwinder Singh (DW6). The plaintiff became the owner of the house in dispute vide registered sale deed dated 20.03.2012. Hans Raj defendant No.1 while appearing in the witness box, admitted in his cross examination that they were in possession of the house in dispute since 2007-2008 as tenants of Manjeet Kaur and the rent earlier was Rs.1200/- per month. At the cost of repetition, it needs to be mentioned that no evidence worth its name was produced by the defendants to prima facie prove their case. 17. Under the circumstances, the trial Court, while rightly relying upon the sale deed in favour of the plaintiff held that the defendants were not tenants under the plaintiff but could be taken to be unauthorized occupants as the plaintiff was unable to prove that they were tenants under the plaintiff. Accordingly, the suit was rightly partly decreed and a decree for possession was passed alongwith a direction to the defendants to pay mesne profits @ Rs.1200/- per month from the date of filing of the suit till realization. The First Appellate Court also returned the same findings and upheld the judgment passed by the learned trial Court. 18. There is another aspect of the matter. Though, for the purposes of decision of the civil suit, the same may not be relevant to the extent of relying upon the same, but would definitely show the conduct of the defendants. FIR No.78 dated 11.06.2016 was registered under Sections 376, 506 IPC at Police Station Ismailabad, on a complaint submitted by defendant No.2 levelling MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh RSA-1059-2025 (O&M) 8 allegations of rape against Tek Chand, husband of the plaintiff. Tek Chand was acquitted by the Court of learned Additional Sessions Judge, Kurukshetra vide judgment dated 31.05.2017 and strong observations were recorded against defendant No.2. This fact does show one thing that the defendants are in the habit of levelling false allegations and raising false claims. The claim of the defendants as regards financial dealings with Tek Chand and the sale deed having been executed in favour of the plaintiff at the instance of Tek Chand fell to the ground on account of no evidence having been led to prove the same. Both the Courts examined the matter from the correct perspective and recorded pure findings of fact and decreed the suit. 19. I do not find any illegality whatsoever in the concurrent findings of facts recorded by both the Courts warranting interference in second appeal. In view of the above, I do not find any merit in the present appeal and the same is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly. (VIKRAM AGGARWAL) JUDGE 02.04.2025 mamta Whether speaking/reasoned Yes/No Whether Reportable Yes/No MAMTA MALHOTRA 2025.04.03 18:29 I attest to the accuracy and authenticity of this order/judgment Chandigarh