Mahesh Chand (since deceased) through L.Rs. vs Ramesh Chand

Indermeet Kaur, J.—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.

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. Defendant 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.

IV. 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:

Whether the plaintiff is the owner of the suit property?

Whether the relationship of landlord-tenant exists between the plaintiff and the Defendant? OPD

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

Whether the plaintiff is entitled to recover any amount from the Defendant? OPP

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.

The impugned judgment had endorsed the finding of the trial judge.

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:

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

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

Can an oral evidence be considered against the documentary evidence?

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

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

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

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

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.

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.

The findings in the impugned judgment qua this issue have been dealt with as under:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

It is relevant to point out that the Appellant/Defendant had moved an application under Order VI Rule 17 of the CPC 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.

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.

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.

Appeal is without any merit; it is dismissed.