Mahesh Chand (Since Deceased) ... vs Ramesh Chand
2010 Latest Caselaw 5000 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment : 29.10.2010

+                         R.S.A.No.84/1994

MAHESH CHAND (since deceased)
Through L.Rs.                      ...........Appellant
                Through: Mr.R.K.Sharma, Advocate.

                    Versus

RAMESH CHAND                                     ..........Respondent

Through: Mr.A.P.Aggarwal & Mr.Y.R.Sharma, Advocates.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest?

Yes

INDERMEET KAUR, J.(Oral)

1. This appeal has impugned the judgment and decree dated

29.9.1994 which had endorsed the finding of the trial judge dated

6.1.1990 whereby the suit of the plaintiff Ramesh Chand seeking

possession of the suit property i.e. property bearing no.3958, Gali

Sattewali, Nai Sarak had been decreed in his favour.

2. The factual matrix of the case is as follows:

I. Plaintiff Ramesh Chand is stated to be the owner of the suit

property described hereinabove. Originally the suit property had

been tenanted out to Puran Chand at a monthly rent of Rs.10/-.

II. On 5.3.1974 notice had been sent to Puran Chand

terminating his tenancy with effect from 1.6.1974. This notice had

been served upon him on 13.3.1974.

III. Puran Chand died on 13.5.1981. He died leaving behind no

legal heir. Defendnat Mahesh Chand had unauthorisedly retained

possession of the suit property. Decree for possession along with

arrears of rent in the sum of Rs.100/- was claimed.

III. Defendant contested the suit. His contention was that there

was a relationship of landlord and tenant between the plaintiff and

himself; the suit was barred under the provisions of Delhi Rent

Control Act (DRCA). It was not disputed that the plaintiff is the

landlord. Rate of rent was also not disputed. Further contention

was that this was a joint tenancy which plaintiff had executed

between Puran Chand and his son Mahesh Chand and after Puran

Chand, Mahesh Chand had become the tenant in the suit property.

Defendant in 1976 had also got an electric meter installed in his

name in the shop which was known to the plaintiff. Receipt of

notice was denied.

V. Trial court framed five issues . They inter alia read as

follows:

1. Whether the plaintiff is the owner of the suit property?

2. Whether the relationship of landlord-tenant exists between the plaintiff and the defendant? OPD

3. Whether the suit for possession is barred under the provisions of DRC Act. OPD

4. Whether the plaintiff is entitled to recover any amount from the defendant? OPP

5. Relief.

Five witnesses were examined on behalf of the plaintiff and

six witnesses were examined by the defendant. In terms of sale

deed Ex.PW2/1, it was held that the plaintiff was the owner of the

suit property. Defence of the defendant that he was the son of

Puran Chand was disbelieved; defendant in his affidavit had

admitted that he is not the son of Puran Chand and that Puran

Chand was his uncle. Defendant was not permitted to blow hot

and cold; there was nothing on record to show that the tenancy

was a joint tenancy created by the plaintiff in favour of Puran

Chand and Mahesh Chand; there was no relationship of landlord

and tenant; defendant was unauthorized occupant. The suit was

accordingly decided in favour of the plaintiff.

3. The impugned judgment had endorsed the finding of the

trial judge.

4. This is a second appeal. After its admission, on 10.7.2008

the following substantial question of law were formulated; they

inter alia read as follows:

1. Whether the adopted son is covered in the order of succession as stated in Section 2, Sub Clause L of Delhi Rent Act?

2. The effect of the person living with the deceased tenant right from birth?

3. Can an oral evidence be considered against the documentary evidence?

4. The value of the documentary evidence in front of the oral statement of the witnesses.

5. Whether it is required to prove the actual adoption or ceremonies of adoption even when the necessary documents are before the court?

6. Whether the tenancy in such an event can be inherited by the adopted son living since birth with his father?

7. Whether suit for possession lies in the facts and circumstances of the case?

5. On behalf of the appellant, it has been urged that the

impugned judgment is perverse which had failed to take into

consideration that the appellant was the adopted son of deceased

Puran Chand and he was a legal heir entitled to inherit tenancy

from his deceased father in terms of Section 2(l) of DRCA. The

evidence before the court had clearly established that the

appellant was living with Puran Chand right from the inception of

the tenancy, vital evidence both oral and documentary has been

ignored. The Courts below have illegally ignored this aspect.

Attention has been drawn to the versions of DW1, DW2, DW3 as

also DW6. It is pointed out that DW1 was the clerk from the

election office who had produced the summoned electoral roll for

the year 1980 evidencing the name of Mahesh Chand as son of

Puran Chand. DW2 had been summoned from the department of

DESU evidencing the fact that as far back as on 13.5.1977 an

electricity meter had been established in the name of appellant

Mahesh Chand; said documents have been proved as Ex.DW2/A to

Ex.DW2/C. DW3 had produced the record of Mahavir Jain Senior

Secondary School wherein on 8.5.1973 i.e. the date of the

admission of the appellant he was shown as the son of Puran

Chand. DW6 was a neighbor who had also stated that Mahesh

Chand had performed the last rites of Puran Chand being his son.

It has been pointed out that he was an independent witness. This

documentary evidence has been misconstrued in the impugned

judgment which is a perversity. The appellant was the adopted

son of Puran Chand although not his natural son. In this view of

the matter, it is clear that the finding of the Trial Judge that the

appellant was an unauthorized occupant is liable to be set aside.

He was adequately protected as a tenant being a lawful legal heir

of his deceased father Puran Chand.

6. Arguments have been countered by the learned counsel for

the respondent. It is submitted that the findings of fact by the two

courts below cannot be interfered with. The substantial questions

of law as formulated by this Court on 10.7.2008 are all fact based.

7. The findings in the impugned judgment qua this issue have

been dealt with as under:

"10. Ld. counsel for the appellant has pointed out that DW1 is a clerk from the election office. He has proved the electoral rolls of the year 1980 and 1983, wherein the name of appellant Mahesh Chand is mentioned as the son of Puran Chand on the address of the suit premises. He has pointed out that DW2 has proved the documents Ex.DW2/A to Ex.DW2/C i.e. affidavit, agreement to sell and undertaking dated 13.5.77 given by Mahesh Chand, wherein his father's name is mentioned as Puran Chand. He has further pointed out that DW3 is a witness from the school, who has stated that on 8.5.73 Mahesh Chand was admitted in the school and his

father's name is mentioned as Puran Chand alongwith the address of the tenancy premises. A certificate in this regard is Ex.DW3/A, issued by the school authorities. Similarly, DW3 has stated that he knew Puran Chand for the last 15-20 years. Mahesh Chand was his son and he conducted the last rites of Puran Chand. He has further stated that Gomti Devi was the wife of Puran Chand and Mahesh Chand was born from Gomti Devi.

11. Ld.counsel for appellant has also drawn my attention to another school leaving certificate which is dated 19.3.69, wherein Mahesh Chand is mentioned as the son of Puran Chand. Ld.counsel for appellant Shri Ashok Chhabra has pointed out that all these documents have come on record from the institutions or Govt.Department. These documents are so old that their authenticity cannot be doubted. He has further argued that when these documents were prepared, there was no dispute between the parties and hence there could not be any occasion for the appellant to manipulate these documents. He has further pointed out that learned trial judge has not given any reason to reject these documents.

12. The next contention of learned counsel the appellant is that, that the learned trial judge has based his conclusion on the affidavits Ex.PWR1/1 and Ex.PX1, which was filed by Puran Chand and the appellant respectively. In the affidavit Ex.PWR1/1 which is of Puran Chand, it is mentioned that his nephew Mahesh Chand is residing with him and was never employed in any factory since his childhood. Similar is the affidavit of Mahesh Chand Ex.PX1 wherein it is mentioned that he is residing with Puran Chand who is his uncle, in the suit premises. He has pointed out that the said affidavits are in English language. PWR1 has stated that he did not know whether Puran Chand was literate or illiterate. He has further admitted that he did not know whether Puran Chand and Mahesh Chand knew English. They may not be knowing English at all. So, he pointed out that the possibility cannot be ruled out that relationship of Mahesh Chand and Puran Chand might have been wrongly typed in the affidavits and both of them signed the same without knowing this fact.

13. On the other hand, ld.counsel for the respondent Shri Kailash Narain has argued that at the initial stage the case of the defendant/appellant was that he is the son of deceased Puran Chand. Later on, the appellant has filed an application for amendment of the plaint alleging therein that as a matter of fact he is the adopted son of deceased Puran Chand and he be allowed to amend the plaint accordingly. But the said application was not pressed for and was dismissed on 11.10.1987.

14. He has further pointed out that Ganga Saran DW5 is a witness produced by the appellant/defendant. The said Ganga Saran has stated that the defendant is his cousin brother. He has further stated that the name of the wife of Puran Chand was Gomti Devi. He has admitted that the defendant/appellant was not born out of the union of Puran Chand and Gomti Devi. Ultimately, he has admitted that the name of the father of the defendant was Charan Singh. He has further pointed out that the aforesaid affidavits filed by Puran Chand and defendant were not refuted by the defendant while deposing as a witness in the court.

15. In the cross examination of DW4 i.e. the appellant, he has admitted that power of attorney filed by the counsel Shri M.M.Madan bears the signatures of Puran chand. He has also admitted that the affidavit, certified copy of which is Ex.PX1, bears the signatures of Puran Chand. However, he has denied that he is the son of Charan Singh, rather that Charan Singh was his maternal uncle.

16. I may mention here that DW5 Ganga Saran is the most crucial witness in the present case, as he is the cousin of

the appellant being the son of the brother of Gomti Devi. Being a relative, he is the only person who was likely to know whether the appellant is the real son of Puran Chand or not. This witness although was produced by the appellants, but has not supported his version and has clearly stated that the appellant was not born out from the wedlock of Puran Chand and Gomti Devi, but was the son of Charan Singh. He has stated that Charan Singh and mother of appellant are still alive.

17. Although, it is difficult to brush aside all the documents i.e. school leaving certificates and the affidavits etc. filed before the DESU authorities produced by the appellant, but the statement of DW5 who is closely related to the appellant, carries much weight. If DW5 would have been a witness of respondent, it could be said that he has been won over by the respondent. But DW5 has been produced by the appellant himself and he has deposed the truth. Moreover, the appellant and his alleged father Puran Chand have filed two affidavits. In both the affidavits, it is mentioned that appellant is the nephew of deceased Puran chand.

18. The cumulative effect of the aforesaid evidence discussed above is that I can reach at a conclusion that the appellant was the nephew of Puran Chand residing with him and was also probably adopted by Puran Chand.

19. Ld.counsel for the appellant has pointed out even if the appellant was adopted by Puran Chand, he need not mention himself as an adopted son, because after the adoption for all practical purposes, the appellant has become the son of deceased Puran Chand. Even in the capacity of an adopted son the appellant can inherit the tenancy rights of deceased Puran chand. I do not agree with the argument of ld.counsel for appellant because in such a case the respondent/plaintiff has no opportunity to dislodge the fact by evidence or otherwise that the appellant was not adopted by Puran Chand or the adoption, if any, was not legal or as per the provisions of Hindu Adoption & Maintenance Act. The fact that the appellant has filed an application U/o 6 Rule 17 CPC mentioning therein that he was the adopted son of Puran Chand, also indicates that probably he was the adopted son of Puran Chand. It was for the appellant who alleged this fact and proved the adoption deed and ceremonies of adoption as per the provisions of Hindu Adoption Act were conducted. That has not been done. I hold that appellant has failed to prove that he is the son or the adopted son of deceased Puran Chand. Therefore, the appellant has no right to inherit the tenancy right of deceased Puran Chand and the present suit is not barred under the provisions of D.R.C. Act."

8. It is relevant to point out that the appellant/defendant had

moved an application under Order VI Rule 17 of the Code of Civil

Procedure for amendment of his written statement (page 319 of

the trial court record) wherein he had taken a plea that he is the

adopted son of Puran Chand and is living with him from the time

of his birth. However, before the application could be adjudicated

the counsel for the appellant had withdrawn the application. This

is clear from the order dated 10.11.1987. As such there was no

plea before the trial court that the appellant/defendant was the

adopted son of Puran Chand. This plea has now been contended

for the first time before this court. The substantial questions of

law had been formulated in terms of this submission although

admittedly this plea was not there before the two courts below. At

this stage, it is also relevant to state that in a previous litigation

between Prabha Devi and Puran Chand, two affidavits had been

filed i.e. of Puran Chand and of Mahesh Chand. The affidavit of

the deceased Puran Chand in the said litigation had been proved

before the trial judge as Ex.PWR-1/1. Para 7 of this affidavit

clearly states that Mahesh Chand is his nephew; Ex.PX1 is the

affidavit of Mahesh Chand filed in the same litigation. Para 1 of

this affidavit states that Mahesh Chand is living with his uncle

Puran Chand. This documentary evidence had weighed in the

mind of the first appellate court while returning a categorical

finding that Mahesh Chand is not the son of Puran Chand. The

cross examination of DW6 had also been adverted to wherein DW6

had stated that Puran Chand was married to Gomti Devi but

Mahesh Chand was not borne out of the wedlock of Puran Chand

and Gomti Devi; DW5 a cousin of the appellant had also made a

deposition to the effect that Mahesh Chand was not born out the

wed-lock of Puran Chand and Gomti Devi; he was the son of

Charan Singh and Charan Singh and his wife were alive.

9. The impugned judgment had correctly weighed the evidence

in the balance holding that the tilt more heavily weighed towards

the side of the plaintiff thereby drawing a correct conclusion that

Mahesh Chand was the nephew of Puran Chand and not his son.

This was clear from the deposition of the witnesses of the plaintiff

himself as also the documentary evidence which was the affidavits

of Puran Chand and Mahesh Chand.

10. This court not being a third fact finding court, it cannot

interfere with facts unless they are perverse. These findings can

in no manner be said to be perverse; they call for no interference.

The substantial questions of law as framed by this court on

10.7.2008 are answered accordingly.

11. Appeal is without any merit; it is dismissed.

INDERMEET KAUR, J.

OCTOBER 29, 2010 rb/nandan