Delhi District Court
Manohar Lal Atree vs Pradeep Kumar Gupta on 4 October, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH)-CUM-ADDITIONAL RENT CONTROL TRIBUNAL,
SAKET, NEW DELHI
ARCT No. 60/2012
ID No.: 02406C0270352012
Manohar Lal Atree,
S/o Late Pt. Leela Ram,
R/o Flat No. 5 & 6, 461, Masjit Moth,
New Delhi. ... Appellant
Versus
1. Pradeep Kumar Gupta,
S/o Late Sh. Sadhu Ram,
R/o 201/1, Masjid Moth,
New Delhi.
2. Smt. Anita Gupta,
D/o Late Sh. Sadhu Ram,
273, Manohar Nagar, Basai Road,
Gurgaon, Haryana.
3. Smt. Sunita Gupta,
D/o Late Sh. Sadhu Ram,
3/11, Pratap Nagar,
Gurgaon, Haryana.
4. Shri Pawan Gupta
S/o Late Sh. Bhuroo Mal,
R/o 201/1, Masjid Moth,
New Delhi. ... Respondents
Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 1 of 16
Instituted on: 26.10.2012
Judgment reserved on: 04.10.2013
Judgment pronounced on: 04.10.2013
J U D G M E N T
1. This appeal under section 38 of Delhi Rent Control Act (hereinafter referred to as 'the DRC Act') seeks to assail the judgment dated 11.09.2012 passed by Shri Raj Kumar Tripathi, Rent Controller (South) on the file of eviction case registered as E5/2008. The eviction case had been instituted on the petition of the appellant submitted on 15.11.2008 seeking an order of eviction against the respondent on the ground under section 14 (1) (b) DRC Act in respect of shop No. 390, Leela Ram Market, Masjid Moth, New Delhi110049 comprising of one store, shop and enclosed verandah as shown in colour red in the site plan (Ex. PW2/1) forming part of the petition. Vide the impugned judgment, the Rent Controller held that the appellant had failed to prove his case of subletting and, thus, dismissed the petition.
2. The trial court record would show that despite notice, respondent Nos. 2 and 3 chose to suffer the proceedings before the Rent Controller ex parte. The petition was contested by respondent Nos. 1 and 4 through a joint written statement submitted on 19.12.2008 Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 2 of 16 through a counsel commonly engaged.
3. Respondent No. 3 has suffered the proceedings in the appeal ex parte as she would not appear despite notice. Respondent No. 4 has appeared to contest the appeal through the same counsel as had assisted him at the stage of trial.
4. In spite of opportunities given, steps were not taken by the appellant for notices to be issued/served on respondent Nos.1 and
2. Against this backdrop, the appeal in so far as it is directed against the said respondents, was dismissed for nonprosecution vide order dated 18.09.2013. In the wake of the said order, it was submitted by counsel for the appellant and for respondent No.4 that the contest in this litigation, even otherwise, has been essentially between the appellant on one hand and respondent No.4 on the other.
5. Arguments have been advanced on behalf of the appellant by Shri Praveen Chauhan, Advocate and on behalf of respondent No.4 by Shri S.K. Gupta, Advocate. I have gone through the record.
6. The background facts leading to this appeal have been noted at length in the impugned judgment. Suffice it to note here that it is undisputed between the parties that the suit premises (the tenanted shop) was let out for commercial purposes in favour of Shri Sadhu Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 3 of 16 Ram, son of late Shri Kalu. The said original tenant Shri Sadhu Ram admittedly died on 21.04.1990, leaving behind as his legal heirs his widow Smt. Phoolwati and three children namely son Pradeep Gupta (respondent No.1) and daughters Anita Gupta (respondent No.2) and Sunita Gupta (respondent No. 3). Admittedly, Pawan Gupta (respondent No.4) was another son of the tenant Shri Sadhu Ram
7. The case of the appellant in the eviction petition was that Shri Sadhu Ram and his wife Smt. Phoolwati during their lifetime had given respondent No.4 in adoption to Shri Bhuroo Mal, resident of 472, Hardev Puri, Gautam Nagar, New Delhi more than thirty years ago. It was alleged that on this ground respondent No.4 was not one of the legal heirs of the tenant Shri Sadhu Ram and, therefore, had not inherited the tenancy rights. It was alleged that the legal heirs left behind by the original tenant had illegally and unauthorizedly sublet, assigned or parted with the possession of the tenanted shop in favour of respondent No.4 two years prior to the filing of the eviction petition and, as a consequence, respondent No. 4 had come to be in control of exclusive possession of the premises in question.
8. The respondent Nos. 1 and 4, in their joint written statement, Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 4 of 16 sought to explain that Shri Bhuroo Mal was the real brother of Shri Kalu Ram and, thus, the grand father of the respondents. It was claimed that Shri Bhuroo Mal and his wife Smt. Nanki Devi had no children of their own and, therefore, Shri Sadhu Ram (the tenant) used to look after them though the latter would reside in another house in the neighbourhood. The allegation that respondent No. 4 had been given by his parents in adoption to Shri Bhuroo Mal was denied. It was claimed that all the children of Shri Sadhu Ram, after his death, had executed a relinquishment deed on 17.02.1998 in favour of their mother Smt. Phoolwati relinquishing their respective share in the estate left behind by Shri Sadhu Ram and that after the death of Smt. Phoolwati, the rent of the shop in question was paid by respondent Nos. 1 and 4. It was denied that respondent No.4 had unauthorizedly come in exclusive possession of the tenanted premises. It was claimed that he used to work in the shop in question during the lifetime of Shri Sadhu Ram and had continued to do so even thereafter. It was also claimed that after the death of Shri Bhuroo Mal, his wife Smt. Nanki Devi was residing with respondent No. 4 in house No. 201/1, Masjid Moth, New Delhi.
9. The case was put to trial in the course of which the appellant Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 5 of 16 examined Shri Mahesh Kumar (PW1), Ahlmad in the court of Metropolitan Magistrate mainly to prove certain documents which had been submitted on 16.10.1996 in the course of a criminal case arising out of FIR No. 519/96 under sections 279/304A IPC of police station Kotla Mubarakpur.
10.The abovementioned documents include bail bond (Ex. PW 1/2) furnished by respondent No. 4 as surety for Pradeep Gupta (respondent No. 1) who was facing the said case as accused. In this bail bond, respondent No.1 (as accused) is described as son of Shri Sadhu Ram Gupta while the respondent No. 4 has described himself as son of Shri Bhuroo Mal. The bail bond was accompanied by affidavit (Ex. PW 1/3) of respondent No. 4 wherein he described the accused (respondent No. 1) as his "cousin brother". The documents submitted with the said bail bond include copy of ration card (Ex. PW 1/4) in the name of Smt. Nanki Devi. The details of the family included therein shows the name of respondent No. 4 as her son. The ration card pertains to premises No. 472 Hardev Puri, New Delhi.
11. In addition to the above, respondent No. 4 while offering himself as a surety had also submitted copies of Kisan Vikas Patras (KVPs) bearing Nos. 06BB016538, 06BB016539, 06BB016540 and Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 6 of 16 06BB016541 (Ex. PW 1/4A, Ex. PW 1/5, Ex. PW 1/6 and Ex. PW 1/7 respectively) each of Rs. 5000/ face value issued by a local post office in the joint names of Smt. Nanki Devi and Shri Pawan Kumar (the latter name apparently indicating interest of respondent No. 4).
12.The mode of proof of the said documents through PW1 was questioned by the respondents in view of the admission of the sid court clerk that the documents produced on record were not the originals and that none of them had been filled up in his presence.
13.The appellant examined himself as PW2 on the strength of his affidavit Ex. PW 2/A. In the course of his statement, he also proved site plan Ex. PW2/1. During his crossexamination, he was confronted, inter alia, with certified copies of certain orders in previous litigation involving the parties. The appellant (as PW2) admitted the correctness of the copy of order dated 17.01.2013 (Ex. PW2/R1) passed by Shri O.P. Saini, Senior Civil Judge recording his willingness to withdraw the money deposited by respondent Nos. 1 and 4 under section 31 of Punjab Relief of Indebtedness Act in his favour on 10.04.2002.Copy of the said petition has been proved as Ex. PAW 2/R2 which indicates the money deposited was towards the monthly rent payable in respect of the tenanted Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 7 of 16 premises wherein the respondent No. 1 and 4 described themselves as tenant, alleging refusal on the part of the appellant to accept the rent tendered to him. Ex. PW 2/R3 is copy of similar order passed in another similar case preferred on 05.05.2005 by respondent No. 4, the basic difference being that the appellant chose not to appear in spite of service whereupon the court of Shri Daya Prakash, Senio Civil Judge closed the proceedings allowing him to withdraw the amount without prejudice to his rights. This order was passed on a petition copy whereof has been proved as Ex. PW 2/R4.
14. On behalf of the contesting parties, respondent No.4 appeared as RW1 on the strength of his affidavit Ex. RW 1/A. The respondent No. 1 proved, through his testimony, four documents which include school leaving certificate (Ex. RW 1/2) issued in his respect by Government Boys Senior Secondary School, Andrews Ganj, New Delhi on 30.09.1985, driving license issued on 07.12.2007 (Ex. RW 1/2), voter identity card issued on 22.12.2005 (Ex. RW 1/3) and relinquishment deed executed on 17.02.1996 by the four respondents and Smt. Shweta Rani, wife of Arun Goyal (stated to be another daughter of Late Shri Sadhu Ram) (Ex. RW 1/4) relinquishing their respective rights in favour of their respective Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 8 of 16 mother with regard to the estate left behind by late Shri Sadhu Ram at the time of his death on 21.04.1990. In all these documents, respondent No. 4 is shown as the son of late Shri Sadhu Ram.
15.It is pertinent to refer here to two judgements on the issue of sub letting viz. Vishwa Nath and another Vs. Chaman Lal reported as AIR 1975 Delhi 117 and Abdul Hamid and another Vs. Nur Mohd. reported as ILR (1976) II Delhi 250.
16.In Vishwa Nath (supra), the Hon'ble High Court observed as under : "So long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with possession by allowing other people to use the same. A tenant cannot be said to part with the possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession (1931) 1 Ch. D 470 and 1966 Delhi LT 28. Clause (b) of the proviso to S. 14 (1) uses three expressions, namely, 'sublet' 'assign' and 'otherwise parted with possession'. These three expressions deal with different concepts and apply to different circumstances. In subletting, there exists the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 9 of 16 letting or tenancy have to be found, namely, the transfer of an interest in the estate. Payment of rent, and the right to possession as against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has a tenant. The expression 'parted with possession' undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been given by lease and "parting with possession" must have been by the tenant. The mere user by other persons is no parting with possession so long as the tenant retain the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession. 1972 RCR 74 (Delhi)".
17. In Abdul Hamid and another Vs. Nur Mohd. (supra) Hon'ble High Court has observed as under : "The expression "part with possession" has to be understood in the legal sense. The mere fact that the tenant himself was not in physical possession of the tenancy premises for any period of time would not amount to parting with possession, so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof, Divestment or Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 10 of 16 abandonment of the right to possession is necessary in order to invoke the clause 'parting with possession".
18. As observed by Ld. Rent Controller in the impugned judgment, the moot question on which the case required to be considered is as to whether respondent No.4 had been given in adoption by his parents unto Shri Bhuroo Mal. If the answer to this question is in the affirmative, the respondent No. 4 would be rendered a person who would not have inherited the tenancy rights after the death of Shri Sadhu Ram. Conversely, if the answer to the above question is in the negative, the landlord cannot take exception to the presence of respondent No. 4 in the tenanted premises.
19.The appellant as PW2 reiterated his case about the adoption while respondent No.4 in his testimony as RW1 asserted the denial.
20.PW2, during his crossexamination, conceded that he was unable to show any adoption deed in respect of the respondent No.4. He is unable to specify the date, month or year when the adoption took place. He has not produced any witness in whose presence the adoption ceremony may have been performed. He is unable to even name any such witness. He has not led any evidence of any person other than himself who would be in a position of vouchsafe that respondent No. 4 used to live in the house of Shri Bhuroo Mal or Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 11 of 16 that they would be treated as son and father by others. There is nothing brought on record to show that after the death of Shri Bhuroo Mal, his estate devolved on respondent No. 4 on account of he being his son/legal heir.
21. The Rent Controller rejected the material submitted by the appellant through PW1 on the ground that the documents in question could not be treated as conclusive proof of the theory of adoption, particularly as they were not prepared in the presence of the witness in question or even of the appellant. The Rent Controller observed that the appellant having failed to discharge his burden could not derive advantage out of the inability of respondent No. 4 to explain as to how he had been shown in the bail bond and connected papers as the son of Shri Bhuroo Mal.
22.The Rent Controller referred to section 50 of Evidence Act which reads as under: "50. Opinion on relationship, when relevant When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 12 of 16 prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."
23.The Rent Controller rejected the case of the appellant also referring to the case of Balinki Padhano v. Gopal Krishna Padhano (AIR 1964 Orissa 117).
24.The respondent has relied upon Suma Bewa and Others Vs. Kunja Bihari Nayak and Other (AIR 1998 Orissa 29); Smt. Urmila Dei and Another Vs. Hemanta Kumar Mohanta alias Hemanta Mohanta and Others (AIR 1993 Orissa 213) ; M. Srinivasan Vs. John Bentic (died) and Others (AIR 1989 Madras 334); Raghunath Behera Vs. Balaram Behera and Another (AIR 1996 Orissa 38); and Pabbathi Reddy Sudarshan Reddy Vs. Pabbathi Reddy Sashirekhamma (AIR 1996 Andhra Pradesh 300) to contend that in absence of cogent and positive proof of adoption, the appellant's case has been rightly held to be not proved and, therefore, the appeal deserves to be dismissed.
25.During the course of arguments, the counsel for the appellant referred to the documents in the nature of bail bond, affidavit etc. submitted in the criminal court on 16.10.1996. His submission is Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 13 of 16 that the said documents reflect an admission within the meaning of provisions contained in sections 17 & 21 of the Evidence Act about the respondent no. 4 being the son of Shri Bhuroo Mal and he, having given such an impression to the criminal court about his parentage, is estopped u/s. 115 of Evidence Act from claiming facts to the contrary.
26.I do not find any substance in the above line of arguments, not the least to jump to the conclusion that the respondent no. 4 had been given in adoption by his natural father (late Shri Sadhu Ram) to his grandfather (late Shri Bhuroo Mal). As per the material on record, the respondent no. 4 was born on 13.12.196. If the story of he having been given in adoption were to be correct, the ceremony of adoption in natural course of events would have been performed sometime by December, 1984 or at any date before Shri Sadhu Ram passed away on 21.04.1990. Yet, in his school records (Ex.
RW1/1), the parentage of respondent No. 4 continued to be shown as that of Shri Sadhu Ram. He acquired a voter identity card (Ex. RW1/3) on 22.12.2005 and a driving license (Ex. RW1/2) on 07.12.2007. Much before the filing of eviction petition on 15.11.2008, the legal heirs of Shri Sadhu Ram had executed a relinquishment deed (Ex. RW1/4) on 17.02.1996. If respondent No. Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 14 of 16 4 had already been given in adoption, his siblings from the family of his birth would not include him as part of the legal heirs of Shri Sadhu Ram in the said important document. Not only this, respondent No. 1 joined respondent No. 4 in the petition u/s. 31 of Punjab Relief of Indebtedness Act (Ex. PW2/R2) presented on 11.01.2002 leading to the order dated 17.01.2003 (Ex. PW2/R1) followed by respondent no. 4 asserting the same status by way of another similar petition presented on 05.05.2005 (Ex. PW2/R4) leading to order dated 05.08.2005 (Ex. PW2/R3) in proceedings in which the appellant did not put in any contest.
27. It is indeed jarring that the respondent No. 4 presented himself as son of Shri Bhuroo Mal while standing surety in the criminal case in favour of respondent No. 4 on the basis of bail bond Ex. PW1/2 and affidavit Ex. PW1/3. Again, it is a matter of concern as to why he would be shown as son of Shri Bhuroo Mal in the ration card Ex. PW1/4 issued in the name of Mrs. Nanki Devi wife of Shri Bhuroo Mal. While no conclusion against respondent No. 4 can be drawn on the basis of ration card, since it was not issued on his application, the bail bond and affidavits stand out as the sole circumstance where he described himself as a person not connected with the family of Late Shri Sadhu Ram Gupta. But, Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 15 of 16 there can be other reasons or considerations for false description to be given in the bail bonds. Even if it were to be assumed that the said declaration was with a dishonest intention, it does not necessarily lead to the conclusion that the connection between respondent No. 1 and his natural father had come to an end.
28.As observed by the Ld. trial court in the impugned judgment, there is no positive proof of any adoption ceremony. There is no witness who would vouchsafe that, to his knowledge, the natural father of respondent No. 4 had given him away in adoption or that the respondent no.4 was always treated by other as adopted son of Sh. Bhuroo Mal.
29.In the above facts and circumstances, the appeal is found devoid of substance and is, consequently, dismissed.
30.Trial court record be returned with copy of the judgment.
31. File of the appeal be consigned to record room.
Announced in open Court today (R.K. GAUBA)
on this 4th day of October, 2013 District & Sessions Judgecum
ARCT/South/Saket/New Delhi.
Manohar Lal Atree Vs. Pradeep Kumar Gupta & Others Page 16 of 16