Mehar Chand vs Sri Kishan Dass And Ors.
2006 Latest Caselaw 2001 Del

JUDGMENT

Mukundakam Sharma, J.

1. By this judgment and order we propose to dispose of the present appeal, which was filed by the appellant / defendant No. 2 being aggrieved by the judgment and decree dated 28th November, 1985 passed by the learned Single Judge whereby a preliminary decree was passed declaring that the properties bearing number 2858 and 2877, Sirkiwalan, Delhi belong to the plaintiff and the defendants No. 1 to 4 jointly and that each one of them would get 1/5th share in each of the aforesaid two properties. So far the tenancy rights in shop No. 5062, Bazar Sirkiwalan, Hauz Qazi, Gandhi Nagar, Delhi is concerned, it was held by the learned Single Judge that the defendant No. 1 is the sole tenant of the shop in question. The present appeal is filed by the appellant, who was defendant No. 2, only in respect of the aforesaid findings and conclusions reached by the learned Single Judge with respect to tenancy right and the order passed declaring the respondent No. 1/defendant No. 1 as the sole tenant in respect of the aforesaid shop in question. Therefore, our decision in the present appeal would be restricted to the aforesaid issue only.

2. A suit for a decree for partition was filed by the plaintiff contending, inter alia, that the properties number 2858 and 2877, Sirkiwalan, Delhi are joint family properties and, therefore, they are required to be partitioned by metes and bounds amongst the co-sharers. In the aforesaid suit, the present appellant as defendant No. 2 filed his written statement wherein he also contended that shop No. 5062, Bazar Sirkiwalan, Hauz Qazi, Gandhi Nagar, Delhi (described as suit property in the present appeal) was taken on rent by Kundan Lal, grand father of the plaintiff and defendants No. 1 to 4 and consequently the tenancy rights therein also get devolved on the plaintiff and the defendants No. 1 to 4 and that the said property should also be partitioned accordingly by metes and bounds amongst the parties. After filing of the said written statement, the plaint was amended to include shop No. 5062, Bazar Sirkiwalan, Delhi also as a suit property.

3. On the basis of the pleadings of the parties, altogether six issues were framed on 10th February, 1977. Subsequently, three additional issues were framed on 17th March, 1983. All the aforesaid issues have been set out in the impugned order and decree and, therefore, we do not intend to reiterate the same in the present judgment for the sake of brevity.

4. During the course of arguments, counsel appearing for the appellant has urged only one issue, which falls for our consideration and which is as follows:

2. Whether the following properties are the properties of the joint Hindu family and liable to partition?

(a) XXX XXX XXX

(b) Tenancy right in shop No. 5062, Bazar Sirkiwalan, Delhi.

5. The present appeal revolves around only the aforesaid issue and, therefore, our enquiry would also be limited and restricted to the aforesaid issue for the purpose of deciding the present appeal.

6. Witnesses were examined in support of their respective cases during the course of which the appellant as also the respondent No. 1 examined themselves along with other witnesses. After recording the evidence adduced by the parties, the learned Single Judge heard the learned Counsel appearing for the parties and by the impugned judgment and order disposed of the suit holding that the respondent No. 1 / defendant No. 1 alone is the sole tenant of the shop No. 5062, Bazar Sirkiwalan, Delhi. The learned Single Judge also passed a preliminary decree declaring that the properties No. 2858 and 2877, Sirkiwalan, Delhi belong to the plaintiff and the defendants No. 1 to 4 jointly and that each one of them would get 1/5th share in the aforesaid two properties. All the parties, it appears, accepted the aforesaid decree in respect of properties bearing number 2858 and 2877, Sirkiwalan, Delhi, and the present appeal is directed only against the judgment and decree pertaining to the findings and the conclusions recorded in respect of shop No. 5062, Bazar Sirkiwalan, Delhi.

7. Counsel appearing for the appellant vehemently submitted that the tenancy rights in shop No. 5062, Bazar Sirkiwalan, Delhi was a joint right of the entire family and the said right devolves on the plaintiff as also on defendants No. 1 to 4 and, therefore, the said tenancy right is also required to be partitioned amongst all the co-sharers. In support of the said contention, the counsel for the appellant relied upon the rent receipts exhibit D2/1 to exhibit D2/9. The aforesaid rent receipts were purported to have been issued on some dates during the period from 9th June, 1929 to 1st June, 1938. The appellant has also relied upon the teh bazari receipt, which is exhibited as Ex.DW/10, which was purportedly issued by the M.C.D. on 8th March, 1934. The learned Single Judge rejected the aforesaid contention, which was raised before him also, after scrutinising the evidence adduced in the suit itself. After elaborately discussing the evidence in the suit, the learned Single Judge finally held that there is no cogent evidence adduced by the appellant / defendant No. 2 from which it could be deduced and held that the tenancy rights of the shop were acquired by Manohar Lal, the father of the plaintiff and defendants No. 1 to 4. According to the appellant, it was Kundan Lal who had for the first time taken the shop on rent and from whom the tenancy rights devolved on Manohar Lal and after his death on his heirs. It was held by the learned Single Judge that, if at all Manohar Lal had any such right in the said shop, it would be deemed that Manohar Lal had surrendered his tenancy rights in favor of Sri Kishan Dass, respondent No. 1/defendant No. 1,. The learned Single Judge further held that it stands proved that the landlord of the shop had also recognised the defendant No. 1 alone as the sole tenant of the shop at least from the year 1968 onwards and, therefore, it is conclusively proved that the defendant No. 1 alone was the sole tenant of the shop in question.

8. Let us now examine the evidentiary value of the aforesaid exhibits, which were heavily relied upon to establish that the tenancy right in respect of the aforesaid shop was joint family right and that all the co-sharers are entitled to a share in the said tenancy right. Ex.D2/1 to Ex.D2/9 are receipts towards rent for a shop in the Bazar Sirkiwalan, Delhi. In the receipt Ex.D2/5, even the location of the shop for which the rent receipt is issued is not given. We have perused the said rent receipts in order to enable us to appreciate the worth and evidentiary value of the said rent receipts. The contents of one of such receipts are extracted herein below. The contents of all other receipts are almost similar and, therefore, extraction of the contents of one, in our considered opinion, would suffice for the present.

Received Rs. 5/2/6 from Kundan Lal Bharboonja through Shri Bhoja Ram rent for one month for one shop in Sirki Walan for Miti Jeth Sudi 1, 1992.

Receipt Executed for use at the time of needs.

sd/ Ram Lal

10.6.35

9. The signatory to the aforesaid rent receipt or his legal heir has not been examined by the appellant nor any oral evidence has been led to connect any of the aforesaid receipts with the shop in dispute i.e. shop No. 5062, Bazar Sirkiwalan, Delhi. Counsel for the appellant submitted before us that those documents should be and could be admitted in evidence under the provisions of Section 90 of the Evidence Act and, therefore, they are sufficient proof in support of the claim of the appellant. We are, however, unable to accept the aforesaid submission of the counsel appearing for the appellant as in our considered opinion, there is no connection or relationship established between the aforesaid rent receipt and the shop in question. None of the aforesaid rent receipts bears the shop number. The owner of the shop has also not come forward to say that any person from their family has executed the aforesaid rent receipt.

10. In view of the aforesaid position, we are of the considered opinion that those rent receipts which are relied upon by the appellant are of no evidentiary value and they do not throw any light or prove that the tenancy right was a joint right of all the co-sharers / coparceners of the joint Hindu family. The learned Single Judge also considered as to whether or not the aforesaid rent receipt could be said to be proved to be 30 years old as envisaged by Section 90 of the Evidence Act so as to admit them in evidence without formal proof. After considering the ratio of the decision of the Andhra Pradesh High Court in Pinnika Lakshmaiah v. Pinnika Venkateswarlu and Ors. reported as , it was held that the appellant / defendant No. 2 did not adduce any evidence to show that these receipts actually existed for more than 30 years. Rather, the facts and circumstances as borne out from the records go to point out to the contrary. In the aforesaid decision, the Andhra Pradesh High Court held that presumption under Section 90 would arise only if the document is proved to be 30 years old and in order to prove that a document is 30 years old, merely referring to the date is not sufficient to come within that part of that section. It was further held that at least a prima facie case must be made out by the person trying to prove the document that the said document is 30 years old. The learned Judge also appreciated the fact that Mehar Chand, the appellant herein, who examined himself as DW-2, stated in evidence that he has not seen his grand father, Kundan Lal, and that he died some time prior to the time when defendant No. 2 attained the age of 4 or 5 years.

11. From the aforesaid evidence, which was considered by the learned Single Judge, it is established that Kundan Lal died some time prior to 1929 but the the aforesaid receipts, which were shown to have been issued in favor of Kundan Lal, are shown to have been issued to Kundan Lal from 1929 up to 1938. Definitely, therefore, there is some doubt about the genuineness and authenticity of the aforesaid documents, which are sought to be proved as Ex.D2/1 to Ex.D2/9.

12. In view of the aforesaid position, we are in complete agreement with the findings recorded by the learned Single Judge that the aforesaid rent receipts could not be admitted in evidence under Section 90 of the Evidence Act. So far Ex.DW/10 is concerned, the same is a teh bazari receipt, which was issued by the M.C.D. for the period 1.1.34 to 31.3.34 on 8th March, 1934. The aforesaid document was given exhibit mark treating the document to be more than 30 years old and, therefore, admissible under Section 90 of the Evidence Act. In our considered opinion, the said document also has no relevance to the facts of the present case as teh bazari receipt is granted by a civic authority to a person occupying Government land for the purpose of doing some business. The aforesaid receipt is shown to have been issued by the Delhi Municipality with respect to one takht for the period 1st January, 1934 to 31st March, 1934. The said receipt does not give any particulars of the premises in respect of which the takht was placed. The shop in question was a private property and, therefore, there was no scope for issuing any teh bazari receipt by the Delhi Municipality in respect of the aforesaid private shop.

13. We have also very carefully perused the evidence adduced by the appellant herein as DW-2. He has stated in evidence herein as DW-2 that shop No. 5062, Bazar Sirkiwalan, Delhi was taken on rent by his grand father and his father Manohar Lal had carried on the business of sale of purchase of gram in that shop. According to him, his father died in the year 1962 and defendants No. 1 to 4 continued to do business in that shop after 1963-64. As against the aforesaid statement, we have considered the statement of Narain Dass, D5W6. He had stated that Sri Kishan Dass, respondent No. 1/defendant No. 1 had started the business of steel buckets in the shop in the lifetime of his father, Manohar Lal. The aforesaid statement, therefore, proves that the respondent No. 1/defendant No. 1 was carrying on independent business from the aforesaid shop. The learned Single Judge has appreciated the entire oral evidence adduced by the parties and on careful scrutiny thereof, he has held that there is no cogent evidence led by the appellant to prove that the tenancy rights of the shop were acquired by Manohar Lal and his heirs.

14. The plaintiff, who is arrayed as respondent No. 2 and who is also co-sharer, has now supported the case of the respondent No. 1. The plaintiff is also one of the sons of Manohar Lal. He has stated that his father Manohar Lal used to sit at the shop and that he had handed over the shop to Sri Kishan Dass about 30 years ago. He also stated that the shop does not belong to the parties and that the respondent No. 1 had been running that shop for the last 30 years. He admitted in his evidence that respondent No. 1 is the tenant of this shop. Before us also he supported the case of the respondent No. 1. Therefore, as of present, it is only the appellant, who is claiming the said tenancy right as a joint family property, which claim is not being supported by any other alleged co-sharer.

15. As against the aforesaid evidence adduced by the appellant/ defendant No. 2, the defendant No. 1 has produced rent receipts Ex.D1W1/1 to Ex.D1W1/6. The aforesaid rent receipts are duly proved through his own statement. It is also proved that the said documents in the nature of rent receipts were issued by the landlord in his favor alone with respect to the shop in question as rent for different periods starting from 1st October, 1968 to 30th September, 1979. The respondent No. 1/defendant No. 1 has also proved in evidence the original verification certificate from the Department of Industry and Labour, Delhi Administration, which is dated 14th January, 1957 and proved in the suit as Ex.D1W1/7. It is also brought on evidence and could not be disputed by the appellant / defendant No. 2 that the respondent No. 1 / defendant No. 1 was in exclusive possession of the shop in dispute and had been carrying on business from there exclusively for at least 5-6 years during the life time of his father, Manohar Lal. Therefore, the learned Single Judge rightly held that the tenancy right in respect of the aforesaid shop was exclusively with the respondent No. 1 / defendant No. 1 and if any other person had any right in the aforesaid shop, the same was surrendered.

16. Having considered the entire evidence and after minutely scrutinising the judgment and decree passed by the learned Single Judge, we are of the considered opinion that the learned Single Judge was right and justified in coming to the conclusion as recorded by him in the impugned judgment and order that the respondent No. 1 / defendant No. 1 alone is the sole tenant of the shop in question. We find no reason to interfere with the aforesaid findings recorded by the learned Single Judge. In our considered opinion, the appeal has no merit and is dismissed with costs.