Lokesh Gupta & Ors. vs Sukesh Chand Gupta
2018 Latest Caselaw 4926 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  RFA Nos. 677/2018 & 678/2018

%                                            21st August, 2018

RFA No. 677/2018 & CM No.33501/2018 (Stay)

LOKESH GUPTA & ORS.                                 ..... Appellants

                          Through:        Mr. Trideep Pais and Mr.
                                         Shivam Sharma, Advocates.
                                         (9717456124
                          versus

SUKESH CHAND GUPTA                                 ..... Respondent

RFA No. 678/2018 & CM No.33509/2018 (Stay)

LOKESH GUPTA & ORS. ..... Appellants

Through: Mr. Trideep Pais and Mr. Shivam Sharma, Advocates.

                                         (9717456124)

                          versus

SUKESH CHAND GUPTA                                 ..... Respondent



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?





 VALMIKI J. MEHTA, J (ORAL)

CM No. 33502/2018 (Exemption) in RFA No.677/2018

Exemption allowed subject to just exceptions.

CM stands disposed of.

RFA No.677/2018 & RFA No.678/2018

1. These two Regular First Appeals under Section 96 of the

Code of Civil Procedure, 1908 (CPC) are filed by the defendants in

the suit impugning the Judgment of the Trial Court dated 22.3.2018 by

which the trial court has decreed the suit filed by the

respondent/plaintiff of possession and mesne profits with respect to

two premises, the first being of a Quarter No. 71 of property bearing

Block No.1, Bengalimal Market, New Delhi and second being a Shop

No.46, Block No.1, Bengalimal Market, New Delhi. Essentially what

is decided by the impugned judgment is that the tenant Sh. Guljari Lal

died leaving behind any legal heirs and that though the appellant

no.3/defendant no.4/Sh. Amit Gupta claimed to be the adopted son of

late Sh. Guljari Lal, however, Sh. Amit Gupta has not been found to

be the adopted son of late Sh. Guljari Lal and hence Sh. Amit Gupta

will not inherit the tenancy rights of Sh. Guljari Lal/deceased tenant.

2. The facts of the case are that the respondent/plaintiff has

filed the subject suits pleading ownership of the two premises as the

same devolved upon him from his grand-mother Smt. Vidyawati.

Between the legal heirs of Smt. Vidyawati, and which included the

respondent/plaintiff, a partition took place vide registered Partition

Deed dated 9.6.2000 and the suit properties consequently fell to the

ownership of the respondent/plaintiff. The subject suit was filed by the

respondent/plaintiff by pleading that since the tenant Sh. Guljari Lal

had died without leaving behind any legal heirs, the

appellants/defendants are illegal occupants of the suit property and the

suits for possession and mesne profits be decreed.

3. Written statement was filed by the appellants/defendants.

One written statement was filed by the appellants no. 1 and 2 who

were the defendants no. 2 and 3. One written statement was filed by

the appellant no.3/defendant no.4/Sh. Amit Gupta. In essence, the

defence of the appellants/defendants was that the tenant Sh. Guljari

Lal before his death, on 7.6.1998, adopted appellant no.3/defendant

no.4/Sh. Amit Gupta, and therefore, appellant no.3/defendant no.4/Sh.

Amit Gupta as the adopted son of late tenant Sh. Guljari Lal inherited

the tenancy rights in the suit properties. The suit properties admittedly

are properties having the protection of the Delhi Rent Control Act,

1958.

4. Trial court has, by the impugned judgment, rejected the

case set up by the appellants/defendants that the appellant

no.3/defendant no.4/Sh. Amit Gupta was the adopted son of late Sh.

Guljari Lal. Trial court for rejecting the adoption of Sh. Amit Gupta

has relied upon certain inconsistencies between the original Adoption

Deed which was filed and proved as Ex.DW5/1 with the certified

copies filed by the appellants/defendants on the one hand being

Ex.DW1/1 and the respondent/plaintiff as Ex.DW5/P1. Trial court has

further referred to the fact that the case put forth for adoption of the

appellant no.3/defendant no.4/Sh. Amit Gupta by late tenant Sh.

Guljari Lal does not stand to any logic or truthfulness because

appellant no.3/defendant no.4/Sh. Amit Gupta was claimed to be

adopted by Sh. Guljari Lal when Sh. Guljari Lal was 90 years of age,

and therefore how could the appellant no.3/defendant no.4/Sh. Amit

Gupta who was just 10 years of age at the time of adoption, take care

of a tenant Sh. Guljari Lal who was 90 years old, the purpose of

adoption being stated that the adopted son appellant no.3/defendant

no.4/Sh. Amit Gupta will take care of Sh. Guljari Lal. Trial court has

also referred to the fact that the case put forth for adoption could not

be believable because no record is filed of the educational institutions

in which the appellant no.3/defendant no.4/Sh. Amit Gupta studied

and which shows that parentage/father of appellant no.3/defendant

no.4/Sh. Amit Gupta is Sh. Guljari Lal and not the natural father/Sh.

Davendra Gupta. Trial court has also arrived at a finding of fact that

not only no educational record was filed of the appellant

no.3/defendant no.4/Sh. Amit Gupta but also that no other public

record; whether of ration card or any other public record; was filed

which would show that Sh. Amit Gupta would be the adopted son of

late Sh. Guljari Lal. I may note that the public record would include a

passport, ration card and so on and none of these documents have been

filed by the appellants/defendants to show that the appellant

no.3/defendant no.4/Sh. Amit Gupta was the adopted son of Sh.

Guljari Lal.

5. Learned counsel for the appellants/defendants has argued

that the trial court has wrongly rejected the case of adoption of the

appellant no.3/defendant no.4/Sh. Amit Gupta by Sh. Guljari Lal

because the discrepancies which are mentioned in the certified copies

of the Adoption Deed as compared to the original Adoption Deed have

no significance or relevance because once the original Adoption Deed

is filed and proved on record as Ex.DW5/1 and a witness being the

clerk from the Sub-Registrar's office deposed with respect to the

Adoption Deed being duly registered before Sub-Registrar is proved,

then the adoption should be held to have been proved and more so in

view of the fact that the appellants/defendants had proved the factum

of the ceremony of adoption in terms of photographs Ex.DW1/2 to

Ex.DW1/25.

6. This Court cannot agree with the arguments urged on

behalf of the appellants/defendants inasmuch as no doubt there is a

factum of existence of a registered Adoption Deed with the

photographs of adoption, however, the parties who went through the

process of adoption would/should have intended to see that the

adoption becomes a reality. In other words, a transaction or situation

or an occasion can be a nominal/sham/paper transaction, without the

factum/incident/transaction having been acted upon. In the present

case, it is seen that the adoption took place when Sh. Guljari Lal was

around 90 years of age, and therefore, the appellant no.3/defendant

no.4/Sh. Amit Gupta being only 10 years of age would not have taken

care of Sh. Guljari Lal and which is stated to be the purpose of

adoption. Also, the best proof of adoption having been taken place is

to show that adoption is acted upon. Obviously, if the adoption was

intended to be acted upon, the adoption would have been shown in the

entire educational records of the appellant no.3/defendant no.4/Sh.

Amit Gupta or in numerous other public records such as passport,

ration card, voter identity card or income tax records and so on.

Admittedly, none of this public record has been filed by the

appellants/defendants to show that actually the adoption was in fact

acted upon. In my opinion, though the trial court has not dealt with

this aspect, this Court is entitled to do the same in view of the Order

XLI Rule 24 CPC and which permits this Court to give additional

reasoning to sustain the judgment of the trial court. In effect, though

the trial court has not used the word nominal/sham/paper adoption,

though in substance the trial court has held it to be so, by not only

disbelieving the Adoption Deed but more importantly observing that if

the adoption was real then there was no reason as to why the

educational record or the public record has not been filed to show the

appellant no.3/defendant no.4/Sh. Amit Gupta to be the son of Sh.

Guljari Lal.

7. Bengalimal Market in Delhi is in the hub of Central Delhi.

Properties herein are most valuable running into dozens of crores of

rupees. Not only the properties in the Bengalimal Market are

extremely valuable, and which is just about one kilometer away from

this Court as also the Supreme Court, even the premiums which are

charged for creation of tenancy under the Delhi Rent Control Act, run

into crores and crores of rupees. Obviously, the claim which was

floated by the appellants/defendants was essentially to capture the

tenancy rights which have protection under the Delhi Rent Control

Act, and to the disadvantage of the original owner of the suit property

being the respondent/plaintiff, and which owner has been rightly

entitled by the trial court to the decree of possession and mesne profits

of the suit properties.

8. In view of the above discussion, there is no merit in the

appeals. These appeals being a gross abuse of the process of law are

dismissed with costs of Rs.5 lacs each which will be deposited by the

appellants to the Chief Minister Distress Relief Fund of State of

Kerala within a period of two weeks from today and proof of deposit

of costs be filed in this Court after two weeks, failing which Registry

will list the matter in Court for directions.

AUGUST, 21, 2018/ib                             VALMIKI J. MEHTA, J