Delhi High Court
Davinder Kumar vs Ram Kaur on 20 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 12/2013
% 20th May, 2014
DAVINDER KUMAR ......Appellant
Through: Mr. Sudhamu Palo and Mr. Bhavesh
Kr. Sharma, Advs.
VERSUS
RAM KAUR ...... Respondent
Through: Mr. Naveen Kumar Goyal, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This second appeal is filed under Section 100 CPC impugning
the concurrent judgments of the courts below; of the trial court dated
06.02.2010 and the first appellate court dated 20.10.2010; by which the suit
of the respondent/plaintiff for possession and damages has been decreed
against the appellant/defendant with respect to the property bearing no. A-
179, Harijan Basti, Kondli, Delhi-110096 shown in red in the site plan,
Exhibit PW1/D. Respondent/plaintiff has also been granted user and
occupation charges with effect from 01.11.1999.
RSA 12/2013 Page 1 of 7
2. The case of the respondent/plaintiff, and who is alleged by the
appellant/defendant to be his adoptive mother, was that the suit property was
purchased by the respondent/plaintiff by means of the documentation of the
year 1987. These documents have during the course of trial been approved
and exhibited by the respondent/plaintiff as Ex.PW1/A to Ex. PW1/C. The
respondent/plaintiff also stated that the appellant/defendant was let out the
suit property at Rs.800/- per month as a tenant and on account of non-
payment of rent a petition under Section 14(1)(a) of the Delhi Rent Control
Act,1958 was filed but this petition was subsequently withdrawn as the suit
property was not covered under the Delhi Rent Control Act, 1958. The
respondent/plaintiff claimed that the appellant/defendant falsely claimed that
he was adopted by the respondent/plaintiff and her husband Nathu Singh
Bodh but there was no adoption. Accordingly, the respondent/plaintiff
prayed for decree of possession/damages with respect to the suit property.
3. The appellant/defendant had contended in his written statement
that he was the adopted son of the respondent/plaintiff and her husband Shri
Nathu Singh Bodh. It was also claimed in the courts below by the
appellant/defendant, though it was not argued before me, that the suit
property was purchased in the name of the respondent/plaintiff from the
RSA 12/2013 Page 2 of 7
funds received on sale of a property in the name of the husband of the
respondent/plaintiff and therefore the appellant/defendant was a co-owner
with respondent-plaintiff. Essentially, the suit was prayed for being
dismissed because respondent/plaintiff was not to be the sole owner of the
suit property as also the appellant/defendant is the co-owner with the
respondent/plaintiff as he is the adopted son of the respondent/plaintiff and
her husband Sh.Nathu Singh Bodh.
4. The courts below have held that the appellant/defendant failed
to establish his case of alleged adoption. The first appellate court noted this
aspect in paras 12 and 13 of the impugned judgment which read as under:-
"12. DW-1 defendant was cross examined. In his
cross examination he has stated that he did not know
whether the suit property was in the name of the
plaintiff. He stated that he did not have any document
in his possession to show that the suit property was
ever standing in the name of Sh. Nathu Singh Bodh.
He has admitted that he had filed a suit for injunction
against the plaintiff which was dismissed by the Court
of Sh. Sanatan Prasad, Civil Judge in the year 2002
due to lack of evidence. DW-1 has not produced any
documents to show that the suit property was
purchased from the sale proceeds of property at
Kundan Nagar, Laxmi Nagar, Delhi. No document of
sale of property no. 471, Kundan
RSA 12/2013 Page 3 of 7
Nagar, Laxmi Nagar, Delhi has been filed or prove by
the defendant. Defendant has not placed on record any
deed of adoption.
13. DW-2 is Sh. Jagroshni who is the wife of
defendant. She has deposed by way of affidavit EX.
DW2/A which is identical to the affidavit of her
husband DW-1. In her cross examination she has
admitted that she was not present when the defendant
was adopted by Sh. Nathu Singh Bodh. She admitted
that she did not have any personal knowledge of the
events which took place before her marriage with the
defendant. Apart from these two witnesses defendant
has not produced any other witness to produce that he
was adopted by late Sh. Nathu Singh Bodh. There is
no evidence to show that suit property was purchased
from the fund generated from sale of property at
Kundan Nagar, Laxmi Nagar, Delhi. There is no
evidence to show that Sh. Nathu Singh Bodh was
owner of the property at Kundan Nagar, Laxmi Nagar,
Delhi. In view of these facts, Ld. Trial Court has
rightly held that the defendant could not prove that he
is adopted son of Sh. Nathu Singh Bodh and that the
suit property was purchased out of the sale proceeds
of property at Kundan Nagar, Laxmi Nagar, Delhi.
These issues were thus rightly decided in favour of the
plaintiff and against the defendant by the Ld. Trial
Court."
5(i) I completely agree with the aforesaid conclusion of the
courts below because the appellant/defendant failed to lead any
RSA 12/2013 Page 4 of 7
credible evidence whatsoever, much less documentary evidence, to
show his adoption by the respondent/plaintiff and her husband Sh.
Nathu Singh Bodh. Once the case for adoption is not proved the
appellant/defendant cannot be held to be the co-owner of the suit
property along with the respondent/plaintiff on the ground that the suit
property is in fact the property of both the appellant/defendant and the
respondent/plaintiff inasmuch as the respondent/plaintiff had
purchased the suit property from the funds of the property standing in
the name of the husband of the respondent/plaintiff Shri Nathu Singh
Bodh.
(ii) I may also state that the case of the appellant/defendant being a
co-owner on the ground that the suit property was purchased from the
funds of a property owned in the name of Nathu Singh Bodh, husband
of respondent/plaintiff is also misconceived because such a claim
would be barred by the provisions of Benami Transactions
(Prohibition) Act, 1988 because there is no case pleaded on behalf of
the appellant/defendant that there existed an HUF.
(ii) Therefore, looking at in any manner of the appellant/defendant
having failed to prove the case of adoption or the fact that the suit
RSA 12/2013 Page 5 of 7
property is in the name of the respondent/plaintiff as an exclusive
owner, appellant/defendant had no right in the suit property.
6. Learned counsel for the appellant sought to argue before
this court that the suit property was in fact of 100 sq. yards and
therefore decree be passed only of 50 sq. yards with respect to which
the documents Exhibits PW1/A to PW1/C exist. This argument of the
appellant/defendant is misconceived because the documents Exhibits
PW1/A to PW1/C by which the respondent purchased the suit
property shows that the suit property is of an area of 50 sq. yards and
only with respect to which possession is claimed. How the
appellant/defendant claims that the property is of 100 sq. yards is not
understood because I do not find any plea in any pleading of the
appellant/defendant or any discussion by the courts below which
shows that the suit property is of 100 sq. yards. Therefore, the
argument of the appellant/defendant that he should be entitled to
continue in occupation of the balance 50 sq.yards is wholly frivolous
and misconceived. I, therefore, reject the argument urged on behalf of
the appellant/defendant that he should be entitled to continue to
occupy 50 sq. yards of A-179, Harijan Basti Kondli, Delhi.
RSA 12/2013 Page 6 of 7
7. In view of the above, I do not find any substantial question of
law, and therefore, the appeal is dismissed, leaving the parties to bear
their own costs.
VALMIKI J. MEHTA, J.
MAY 20, 2014
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