Raj Kishore vs Shyam Sunder Sharma Now ...
2010 Latest Caselaw 4532 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment : 27.09.2010

+            RSA No.169/2007 & C.M.Appl.8676/2007


RAJ KISHORE                                     ...........Appellant
                   Through:    Mr.V.B.Andley, Sr.Adv. with
                               Mr.Rajinder Mathur, Advts.
                   Versus

SHYAM SUNDER SHARMA
NOW REPRESENTED BY
RAMESH CHAND SHARMA                 ..........Respondent

Through: Mr.Suryakant Singh, Advocate.

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. The judgment impugned is the judgment and decree dated

30.5.2007. This judgment and decree had endorsed the finding of

the trial judge dated 29.4.1995 whereby the suit for possession

filed by the plaintiff/respondent had been decreed.

2. This is a second appeal. The substantial questions of law

have been formulated on page 36 of the paper book. They are 11

in number. They all border on the proposition that Sona Devi, the

successor-in-interest of the defendant/appellant Raj Kishore had

died leaving behind a duly probated registered will dated

16.7.1981, by virtue of which she had adopted Gopal. Gopal in

terms of this will being the adopted son of Sona Devi had become

a tenant of the plaintiff having inherited this tenancy; as such the

findings of the two courts below that the plaintiff Shyam Sunder

Sharma was entitled to a decree of possession was an illegality;

the aspect of the tenancy having been inherited by Gopal who was

the legally adopted son of Sona Devi had not been considered; the

gamut of the aforestated arguments have been formulated in the

aforenoted 11 substantial questions of law which find mention in

the body of the appeal.

3. A suit for possession and recovery of Rs.30/- had been filed

by the plaintiff Shyam Sunder Sharma against Raj Kishore. The

case of the plaintiff was that Sona Devi was a tenant with the

plaintiff. The suit property comprised of two kothas and one dalan

situated on the first floor in property no.3361, Kucha Kashgari,

Bazar Sita Ram, Delhi at the rate of Rs.6/- per month. The tenancy

commenced from the first day of each calendar month; it was for

residential purpose; tenancy was terminated vide notice dated

29.5.1981 with effect from 30.6.1981. Sona devi died on 1.7.1983;

she had no legal heir. Defendnat Raj Kishore was stated to be

living with Sona Devi. After the demise of Sona Devi he had no

right to live in the suit property; he had become an unauthorized

occupant; suit for possession was accordingly filed.

4. In the original written statement, the case of the defendant

was that tenancy of Sona Devi was not validly terminated and

notice was not served upon her. Subsequently, his written

statement was amended. In the amended written statement he

had raised a plea that the tenancy of Sona Devi was inherited by

Gopal whom she had adopted, in terms of his registered will dated

16.7.1981.

5. Trial judge had framed eight issues. All the issues were

decided in favour of the plaintiff and against the defendant. There

was no bar either of Section 19 of the Slum Area Act, 1971 or of

Section 50 of Delhi Rent Control Act, 1958. Gopal was held not to

be a necessary party. Tenancy of Sona Devi was validly

terminated.

6. Issue no.7 is relevant for decision of this appeal. The finding

on this issue is inter alia recorded as follows:

"Issue No:7(OPP) The case of the pltff is that the deft is an unauthorized occupant of the premises since Sona Devi the tenant had expired leaving behind no heirs of her own. Admittedly the defts had been living with Sona Devi whose tenancy had been terminated during her life time and hence he has no right to remain in the possession of the premises and is liable to give the possession of the same to the pltff.

The case of the deft is that he is the legal heir of Sona Devi who was the tenant of the premises. The deft has raised the plea that his son Master Gopal had been duly adopted by Smt. Sona Devi during her life time and he is fully entitled to reside in the suit premises and is also entitled to the protection under the DRC Act being the heirs of Lt. Smt. Sona Devi. The perusal of the record shows that the defts has filed as many as three written statements which were amended from time to time. In his 1st WS he has not allowed any adoption of his son but had in fact taken a plea that he was the son of Smt. Sona Devi. Later on after the amendments he alleged that adoption of his son Gopal. However, for the purposes of the present case it is only the last WS filed by the defts which is relevant.

The case of the plaintiff is that the adoption of the Gopal has not been proved in accordance with law and admittedly no adoption deed was executed and even the wife of the deft has not been produced as witness to prove the various adoption ceremonies. I have gone through the evidence on record. DW1 has in his testimony stated that his son was adopted by Sona Devi and the only documentary evidence produced on record is the copy of the will of Smt. Sona Devi where in she has stated that she has adopted Gopal who was at that time one year old. This will has been executed on 16/7/89 and as per the documents on record there is a presumption that the notice of the plaintiff terminating the tenancy of Sona Devi had been served upon her prior to that and as per the date on the regd. A/D which was only end of May, 81 i.e. 30.5.81. The only evidence placed on record to prove the adoption is the testimony of Dw2 who has contradicted the Dw1. According to Dw2 at the time of adoption ceremony in the year 1980 Gopal was 5/6 years old. However, Dw1 has stated that Gopal was born in the year 1980, hence I am not inclined to rely upon the testimony of Dw2 to that extent.

The defendant has also produced Rajinder Kumar as Dw2 who has in his testimony stated that he use to take tuitions from Sona Devi but in his cross-examination the

witness has stated that he had been told this fact to the deft and is also unable to tell the names of other children who use to take tuitions with him. He has though mentioned the name of the counsel for the pltff as one of the students who used to take tuitions but in his cross examination the witness has not told his correct age and year and also unable to tell the year of the birth of the counsel. In my view Dw3 has purposely not stated this since he had earlier stated that the counsel for the plaintiff and he were of the same age group and later on when asked about his date of birth he has not stated his correct age. I am not inclined to rely upon the statement of DW2, on the grounds that he is not a trustworthy witness.

The counsel for the deft has also placed on record the copy of the probate obtained from the court of District Judge, Delhi on the basis of will of Smt. Sona Devi however, the counsel for the pltff has objected to the same. Probate is a public document and this court can always looking this documents for the purposes of corroboration.

The deft has also not produced his wife as witness to prove the adoption ceremony. There is no adoption deed on record and the deft has failed to show that the ceremony of the adoption has taken place and hence I hereby hold that the Gopal is not duly adopted son of Smt.Sona Devi and that in view of the earlier findings there has been a valid termination of tenancy of Smt.Sona Devi and the defendant is in authorized possession of the premises. This issue is decided in favour of the plaintiff and against the deft and I hereby hold that the plaintiff is entitled to the decree for possession."

7. This finding of the trial judge was endorsed by the first

appellate court vide the impugned judgment and decree.

8. Learned counsel for the appellant has vehemently urged

that the findings of the courts below are a perverse finding. The

minor variation in the testimony of DW1 and DW2 was not by itself

sufficient to discard their version and to endorse a finding that

Gopal had not been validly adopted by Sona Devi. Attention has

been drawn to Section 5, 6, 10 & 11 of the Hindu Adoption and

Maintenance Act (hereinafter referred to as HAM Act). It is

pointed out that the finding of the trial judge that the wife of the

defendant had not been produced or there being no adoption deed

to evidence the ceremony of adoption is perverse findings in view

of statutory provisions as contained in Section 8 and the proviso of

Section 11 of the HAM Act. It is pointed out that the provisions of

Section 8, 9 and 10 had been adequately met and in fact this is an

undisputed position; as per the proviso of Section 11 no formal

adoption ceremony of "datta homam" is also necessary. The

courts below have erred and have given a perverse finding while

dealing with this issue. Even otherwise, the will of Sona Devi was

a probated will. It is a judgment in rem and binding on one and

all. In these circumstances, the legality of the adoption also could

not have been questioned. It has lastly been pointed out that the

letting out purpose i.e. the purpose for which the suit property

had been let out had also not been detailed; all these are

substantial questions of law.

9. Arguments have been countered by learned counsel for the

respondent.

10. Present suit is a suit for possession and claim of Rs.30/-.

Para 1 has specifically recited that the tenancy of Sona Devi is for

a residential purpose and the premises was always being used for

herself. This last submission of learned counsel for the appellant is

answered accordingly.

11. It is not in dispute that will is a probated will. In AIR 2008

SC 295 Basanti Devi vs. Raviprakash Ramprasad Jaiswal, the

Supreme Court had held that the Probate Court, undisputably,

exercises a limited jurisdiction; it is not concerned with the

question of title. In (2008) 4 SCC 300 Krishan Kumar Birla vs.

Rajender Singh Lodha & Ors., it has been reiterated by the

Supreme Court that the question of title and the construction of a

will relating to the right, title and interest of any person are

beyond the jurisdiction of the probate court.

12. The defence set up by the defendant that Gopal had been

adopted by Sona Devi was raised for the first time in the amended

written statement; this had to be established by cogent evidence;

evidence was adduced in the form of two witnesses i.e. DW-1 and

DW-2; the courts below chose to disbelieve the said witnesses as

they have given contrary versions and as has been noted in the

finding of the trial court herein reproduced above. Versions of

DW1 & DW-2 on the date of birth of Gopal; he having been born in

the year 1980; adoption ceremony having taken place in 1980;

DW-2 deposing that Gopal was six to seven years old at the time of

the adoption ceremony was an evidence which was in conflict and

contrary to DW-1 which had destroyed the credibility and veracity

of both the defence witnesses constraining the courts below to

disbelieve these versions.

13. In no manner can it be said that these findings are perverse

or that they call for an interference in a second appeal. They do

not raise any substantial question of law.

14. The Supreme Court time and again has reiterated that even

if there is an erroneous finding given by the Courts below or the

evidence which has been adduced before the Courts below is

insufficient, the sufficiency of the evidence cannot be gone into by

the second appellate court; the second appellate court cannot

chose to interfere even if the second appellate court would have

arrived at a finding different from the two courts below on the

same set of evidence. In AIR 1999 SC 2213 Kondiba Dagadu

Kadam vs. Savitribai Sopan Gujar the Supreme Court has held

that in a case where from a given set of circumstances two

inferences are possible, the one drawn by the lower appellate

court is binding on the High Court in second appeal. Adopting any

other approach is not permissible. The High Court cannot

substitute its opinion for the opinion of the first appellate court

unless it is found that the conclusions drawn by the lower

appellate court were erroneous being contrary to the mandatory

provisions of law applicable or its settled position on the basis of

pronouncements made by the Apex Court or was based upon

inadmissible evidence or arrived at without evidence. This is not

the case in the instant scenario.

15. The impugned judgment had examined the evidence both

oral and documentary in deep detail; it found no reason to differ

from the trial court; in this exercise of its fair and judicious

discretion, it had dismissed the first appeal.

16. Contentions urged before this court have already been

delved into; this not a second fact finding court. There is no merit

in the appeal; appeal as also the pending application is dismissed

in limine.

INDERMEET KAUR, J.

SEPTEMBER 27, 2010 rb