Delhi District Court
Shri O.N. Sharma vs Gopal Gupta on 5 April, 2013
Shri O.N. Sharma Vs Gopal Gupta
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL :
ADDL. DISTRICT JUDGE (CENTRAL) 08, TIS HAZARI,
DELHI
RCA no. 80/2011
ID No. 02401C0436782011
1. Shri O.N. Sharma
2. Shri Ramesh Sharma
Both sons of late Sh. Triloki Nath Sharma
R/o 2761, Gali Pipal Mahadev,
Near Baradar Sher Afghan, Hauz Quazi,
Delhi- 110006 ... Appellants.
Versus
1. (a) Gopal Gupta
R/o House No. 3361, Kumcha Kasgiri,
Bazaar Sita Ram, Delhi-110006.
Office Address:
(b) Gopal Gupta
Room No. 209 (IInd Floor),
District Court, Tis Hazari
Delhi
2. Mrs. R. L. Sharma
D/o late Shri Gopal Krishan Sharma
R/o 27, Arakashan Road, Paharganj,
New Delhi.
3. Shri Prithvi Nath Sharma
S/o late Shri Gopal Krishan Sharma,
R/o Gali Jhankarwali,
Faridabad (Haryana). ...Respondents
RCA No. 80/2011 1 of 28
Shri O.N. Sharma Vs Gopal Gupta
ORDER
1. Present appeal u/S 96 of Code of Civil Procedure has been preferred against the judgment and decree dated 01.08.2011 whereby a decree for possession of property no. 2761, Gali Pipal Mahadev, Near Baradari Sher Afghan, Delhi (herein after referred as suit property) and mesne profits @ Rs. 500/- per month from 27.08.1989 till delivery of actual possession was passed.
2. The brief facts giving rise to the present appeal are that Master Gopal Gupta filed the suit through his next friend Sh. Raj Kishore Gupta (herein after referred as plaintiff/respondent no.1) against Sh. O.N. Sharma, Sh. Ramesh Sharma, Mrs. R. L. Sharma and Shri Prithvi Nath Sharma (herein after referred as defendants) and the appeal has been preferred only by Sh. O.N. Sharma and Sh. Ramesh Sharma whereas Mrs. R.L. Sharma and Sh. Prithvi Nath Sharma were made respondents.
Plaintiff/respondent no.1 alleged that he is adopted son of late Sh. Gir Parshad and is presently under the care and custody of his natural father Sh. Raj Kishore Gupta who is his next friend. Smt. Sona Devi widow of Shri Gir Parshad was the owner of the suit property vide Sale Deed dt. 26.10.1970 registered on 27.10.1970. Smt. Sona Devi was not having any son and she brought up Sh. Raj Kishore RCA No. 80/2011 2 of 28 Shri O.N. Sharma Vs Gopal Gupta Sharma, grand son of her sister Smt. Koka Devi. Smt. Sona Devi had brought up Shri Raj Kishore Gupta as her son and she also performed his marriage. Plaintiff is the natural son of Raj Kishore Gupta and Sona Devi adopted the plaintiff as her son on 17.10.1980 according to Hindu rites. Smt. Sona Devi acknowledged the factum of adoption of plaintiff in her last valid Will dated 16.07.1981 vide which she also bequeathed all her movable and immovable properties in favour of plaintiff. Smt. Sona Devi died on 09.07.1983. After her death, plaintiff became the absolute owner of the estate of Smt. Sona Devi including the property in dispute and also being her adopted son. The Will of Smt. Sona Devi was also got Probated from the court of ld. District Judge in Probate Case no. 246/85.
In the suit property, Sh. Gopal Krishan Sharma was a tenant under Sona Devi at a monthly rent of Rs. 31/-. The contractual tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.5.1971. Sh. Gopal Krishan Sharma died on or about 26.12.1971 as a statutory tenant leaving behind his widow Smt. Laxmi Devi and two sons Tirloki Nath Sharma and Pirthi Nath Sharma and a daughter Mrs. R.L. Sharama. After the death of Sh. Gopal Krishan his widow Smt. Laxmi Devi alone inherited the tenancy rights for her life time only as provided in Section 2(1) of the Delhi Rent Control Act.
In 1978, Sona Devi filed the petition for eviction RCA No. 80/2011 3 of 28 Shri O.N. Sharma Vs Gopal Gupta against Smt. Laxmi Devi under Section 14(1)(e) r/w Section 25-B of the Delhi Rent Control Act against the widow of Sh. Gopal Krishan Sharma and in order to avoid any complication Sh. Tirloki Nath, Pirthvi Nath and Mrs. R.L. Sharma were also impleaded as respondents. It is alleged that in that eviction petition a plea was taken by the defendants that Joint Family of Gopal Krishan was the tenant. Sh. V.B. Gupta, the then Ld. Addl. Rent Controller, Delhi vide judgment dated 24.12.1981 held that Joint Family was not the tenant, but Gopal Krishan was the tenant and his contractual tenancy was terminated by notice dt. 18.5.1971. However, the eviction petition was dismissed as court reached to the conclusion that Sona Devi does not require the premises bonafide. Civil Revision was preferred against the order. During the pendency of the Civil Revision, Sona Devi died.
An application was filed to implead Sh. Raj Kishore Gupta as her legal representative being her adopted son. Sh. Raj Kishore Gupta was brought on record without prejudice to the rights of the parties observing that it shall be taken as finding with respect to the Raj Kishore Sharma being the adopted son, however, the revision petition was dismissed and it was observed that Raj Kishore was not adopted son.
On 29.4.1985, Smt. Laxmi Devi had also died and under the law her rights in the tenancy, being not heritable as provided under Section 2(l) of the Delhi Rent Control Act.
RCA No. 80/2011 4 of 28 Shri O.N. Sharma Vs Gopal Gupta Tirloki Nath also died during the life time of Laxmi Devi leaving behind defendants no.1 and 2 who are in actual and physical possession of the suit property. Defendant no.3 Mr. R.L. Sharma is married and resided with her in-laws. Defendant no.4 is residing in Faridabad (Haryana). As none of the defendants have inherited the tenancy right, therefore, their possession is illegal and un-authorised and they are bound to vacate the premises. Plaintiff had asked the defendants to vacate but they have not vacated the same. Their possession being illegal, Therefore, they are also liable to pay the mesne profits @ of Rs. 500/- per month w.e.f. 01.09.1989.
3. Summons sent to the defendants. Defendants no. 1 and 2 filed the written statement taking the objection that the suit for recovery of possession and mesne profits is not maintainable. The defendants are tenants which fact was also admitted by Smt. Sona Devi in case No. 202/1978 and in Civil Revision No. 382/1982. They being the tenants, their right is protected under the provisions of Delhi Rent Control Act 1958. They cannot be evicted from the premises on any ground except the grounds available under Section 14(1) of the Delhi Rent Control Act 1958.
Master Gopal Gupta is not the adopted son of Smt. Sona Devi and hence the present suit is not maintainable. Smt. Sona Devi died issue-less and without any RCA No. 80/2011 5 of 28 Shri O.N. Sharma Vs Gopal Gupta legal heir, therefore, the property passes to the Government. Plaintiff has no locus standi to file the present suit. Neither Sona Devi adopted the plaintiff on 17.10.1980 nor she had executed any Will dated 16.07.1981. If there had been any Will or any such adoption this fact must have been mentioned by Smt. Sona Devi in her eviction case no. 202/78 as well as Civil Revision No.382/82. The eviction case was decided on 24.12.1981, while the Civil Revision was decided on 29.4.1985. It is also alleged that the suit is bad for non-joinder of necessary parties. Smt. Sona Devi accepted Smt. Laxmi Devi, Sh. Tirloki Nath Sharma, Sh. Prithvi Nath Sharma and Smt. R. L.Sharma as her tenants after the death of Smt. Laxmi Devi Sharma and Sh. Tirloki Nath Sharma all their legal representatives should have been made defendants. However, it is alleged by answering defendants that Sh. Prithvi Nath Sharma and Smt. R. L. Sharma are not in actual occupation of any portion of suit property. It is alleged that in the earlier eviction petition in the judgment passed by Sh. V.B. Gupta, the then Additional Rent Controller, Delhi in case no. 202/78, the then respondents no.1 to 4 were confirmed as tenants. Similarly, in Civil Revision No. 382/82 the Hon'ble High Court in its judgment have confirmed the said respondents No.1 to 4 as tenants, therefore, the present suit is liable to be dismissed.
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4. In reply on merits, the adoption is denied. It is alleged that Sona Devi died intestate leaving behind no legal heirs. It is denied that Smt. Sona Devi brought up Raj Kishore Gupta or she adopted the plaintiff on 17.10.1980. The factum of execution of Will is also denied. It is alleged that plaintiff is not the owner of the property. Probate has been obtained by playing fraud. It is alleged that at the time of death of Smt. Sona Devi the revision petition was pending, however, the factum of moving application in the revision petition by Sh. Raj Kishore Gupta and the decision has been admitted and it is alleged that under the circumstances Raj Kishore Gupta is now estopped from pleading otherwise. It is admitted that Sh. Gopal Krishan Shrma was tenant under Smt. Sona Devi regarding the suit property, after his death Smt. Sona Devi had accepted all the legal heirs as tenants. It is not admitted that contractual tenancy of Sh. Gopal Krishan was terminated vide notice dated 18.5.1973. It is not admitted that Sh. Goptal Krishan Sharma died as statutory tenant. It is also not admitted that Smt. Laxmi Devi inherited the tenancy for her life time only. It is alleged that infact Smt. Sona Devi during her life time herself accepted all the respondents as tenants in eviction petition. This fact was also upheld in the judgment of Sh. V.B. Gupta, the then ld. ARC. All other averments are denied. It is denied that defendants are liable to pay any mesne profits.
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5. Replication was filed wherein the plaintiff denied the averments made in the written statement and re-asserted the facts mentioned in the plaint.
6. From the pleadings of the parties following issues were framed which are as under:
1. Whether the suit is barred under Section 50 of DRC Act? OPD
2. Whether the suit is bad for non joinder of the parties if so, its effect? OPD
3. Whether the plaintiff is adopted son of Smt. Sona Devi if not to what effect? OPD
4. Whether the defendants are tenants in the suit property? OPD
5. Whether the plaintiff is entitled to the possession of the disputed property? OPP
6. Whether the plaintiff is entitled to recover the mesne profits from the defendants, if so, at what rate and to what extent? OPP
7. Relief.
The case was fixed for PE.
7. Plaintiff in support of its case examined Sh. Irshad Ahmad as PW1 who proved the site plan of the suit property as Ex. PW1/1. Sh. Jai Kishan was examined as PW2 who proved the prevailing market rent, Sh. Raj Kishore Gupta was examined as PW3. Plaintiff himself appeared in the witness box as PW4. Mother of the plaintiff was examined as PW5.
8. During the pendency, an application was moved as Gopal Gupta attained the majority and he wanted to RCA No. 80/2011 8 of 28 Shri O.N. Sharma Vs Gopal Gupta continue in his own name. The application was allowed vide order dated 15.07.2008. On behalf of plaintiff, copy of the Sale Deed was proved as Ex. PW3/1, certified copy of Will dated 16.7.1981 is proved as PW3/2. Certified copy of the judgment passed in the Probate case no. 246/85 as Ex. PW3/4. Ex.PW3/3 is Will, PW3/5 is certified copy of order in MPC-4/2011 titled O.N. Sharma & others Vs Raj Kishore Gupta & others. Ex. PW3/6 is certified copy of judgment passed by Sh. V. B. Gupta, ld. ARC as the then was, in petition no. E-202/78.
During cross examination, he was also shown the documents Ex. PW3/D.1 that is the copy of affidavit filed in Civil Revision Petition no. 382/82. Ex. PW3/D.2 is application u/O 22 Rule 3 r/w Section 11 CPC filed in Civil Revision Petition. Ex. PW3/D.3 is copy of the rejoinder and Ex. PW3/D. 4 is supporting affidavit of the rejoinder. Ex. PW3/D.5 is the amended memo of parties in Civil Revision no. 382/82 and Ex. PW3/D.6 is the amended written statement filed in the suit titled Shyam Sunder Sharma vs Raj Kishore Gupta.
PW4 also produced some documents i.e. the driving licence, I-card etc. including the mutation certificate of the property in his favour Ex. PW4/11 and the property tax receipt. He also placed on record the certified copy of the eviction petition no. 202/78 Ex. PW4/5 and the written statement filed therein as Ex. PW4/16. Certified copy of the RCA No. 80/2011 9 of 28 Shri O.N. Sharma Vs Gopal Gupta notice dt. 03.05.1977 Ex. PW4/17 and the certified copy of the reply dated 11.10.77 coupled with postal receipt and AD Cards Ex. PW4/18. Thereafter PE was closed.
9. Defendant Sh. O.N. Sharma appeared in the witness box as DW1. He tendered his affidavit supporting the averments made in the written statement and proved on record the judgment of Hon'ble High Court of Delhi in RSA No. 169/2007 as DW1/1, certified copy of memo of parties in the petition under Article 227 of the Constitution of India in Civil Misc. (M) No. 86/2011 in the matter of Gopal Gupta Vs State & Others as Ex. DW1/2 and Ex. DW1/3 is the copy of the petition. He was confronted with his own statement given in the eviction petition during cross examination. Thereafter, case was fixed for final arguments.
10. Ld. Trial Court after hearing the arguments passed the judgment which is under challenge in the present appeal.
11. Summons of the appeal sent to the respondents. Respondent no.1 appeared but none appeared on behalf of respondents no.2 and 3. They were proceeded ex-parte. Trial Court record was requisitioned.
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12. I have heard ld. counsel for the appellants, ld. counsel for the respondent no.1. and perused the record.
13. Ld. counsel for the appellant submitted that in the present case admittedly there was earlier litigations between the parties. Admittedly, Sona Devi was land lady/owner and there was tenancy of Sh. Gopal Krishan Sharma. Ld. counsel submitted that Sona Devi before filing the eviction petition no. 202/78, proved on record as Ex. PW4/15, also filed a petition seeking permission u/S 19 of the Slum Areas ( Improvement of Clearance) Act against all the legal heirs of late Sh. Gopal Sharma i.e. the defendants herein who were admitted to be the tenants. Thereafter, she filed the eviction petition u/Sec. 14(1)(e). The certified copy of which is Ex. PW4/15 and in colemn 3(b) of petition she has mentioned:
" 3(b) name and address of the tenant/tenants. 3(b) Respondents as given in the title".
Ld. counsel submitted that in the title of this eviction petition no. 202/78 following were the respondents:
1. Sh. Gopal Krishan Sharma. (Smt. Laxmi Devi)
2. Sh. Tirloki Nath Sharma.
3. Sh. Prithvi Nath Sharma.
All residents of Gali Jhankarwali, Faridabad, Haryana for Smt. R. L. Sharma c/o Dr. R. L. Sharma, R/o 27, Ara Kasan. Paharganj, New Delhi.
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14. Ld. counsel submitted that in para no.9 of the petition also the plaintiff referred all these persons as the joint tenants. Even the notice was given to all the defendants which also shows that Smt. Sona Devi, the predecessor in interest of the present plaintiff treated them as tenants. This eviction petition no.202/78 was decided by Sh. V. B. Gupta, the then Addl. Rent Controller vide judgment dated 24.12.1981 proved on record as Ex. PW3/6. In the judgment, the court held that the issues which arises are firstly as to who became the tenants in respect of the premises in dispute after the death of Sh. Gopal Krishan Sharma and secondly whether Smt. Sona Devi has got any son and daughter or not and the court held that:
" So, I held that after the death of Sh. Gopal Krishan Sharma, only his LRs can be taken to be tenant in the premises in dispute and the joint family cannot be taken to be the tenant and as such, the present petition against LRs Gopal Krishan is perfectly maintainable."
Ld. counsel submitted that the eviction petition was dismissed on merit. After this judgment it has become clear that after the death of Sh. Gopal Krishan Sharma his LRs became the tenant. The revision preferred against this order was also dismissed, therefore, this order has become final. This order operates as res-judicata at the same time operate as estopped against plaintiff herein to claim otherwise. Once, it was held by a Court of competent jurisdiction that they are RCA No. 80/2011 12 of 28 Shri O.N. Sharma Vs Gopal Gupta tenants then it was not open for the plaintiff to challenge that status and also the court to go into that issue. Ld. counsel further submitted that the Trial Court has erred in law in its presumption that after the death of Sh. Gopal Krishan Sharma only Smt. Laxmi Devi inherited the tenancy rights for her life time under Section 2 of the Act. Ld. counsel submitted that the issue of inheritance has already been decided in the judgment dated 24.12.1981 Ex. PW3/6 which was uphold by Hon'ble Mr. Justic Sh. G. C. Jain vide judgment dated 29.4.1985 Ex. D-5. Ld. counsel in support of his arguments relied upon the judgment cited as AIR 2005, Supreme Court 626 and 1999 Vol. IV, SCC 243. Trial Court also erred to re-open this issue and then further holding that the defendant/appellant cannot be permitted to argue that the LRs of sh. Gopal Krishan Sharma are the tenants. The Trial Court erred in applying the Section 2 of the Delhi Rent Control Act, 1958. Ld. counsel submitted that even the notice dated 18.5.1971 were not placed on record and in fact it was waived when Smt. Sona Devi again issued the notice dated 3.5.1977. As the earlier notice was already waived and no fresh notice u/Sec. 106 of the Transfer of Property Act was given terminating the tenancy, therefore, the suit itself was not maintainable. In fact, in the present case, notice dated 18.5.1971 was neither placed on record nor proved on record. Ld. counsel submitted that, in view of the earlier judgment between the parties which binds both the RCA No. 80/2011 13 of 28 Shri O.N. Sharma Vs Gopal Gupta parties and also operates as res-judicata, wherein it was held that the appellants/defendants are the tenants and therefore, the jurisdiction of Civil Court was barred u/Sec. 50 of the Delhi Rent Control Act and on this ground the suit should have been dismissed and the Trial Court should have followed the law laid down in the cases cited as AIR 2004, Madras 267; AIR 1971 Supreme Court, 102; AIR 1973 Punjab & Haryana 353; AIR 1976 Allahabad 321 and AIR 2006, Karnataka 57. Ld. counsel submitted that as the LRs of Sh. Gopal Krishan Sharma continued to be the contractual tenants, therefore, the suit for possession and recovery of mesne profits was not maintainable at all but the Trial Court reached to its own conclusion on the basis of presumption and surmises presuming the notice dated 18.5.1971 and then jumping to the conclusions that appellant/defendants were not the tenants in premises. Ld. counsel submitted that, in view of the earlier judgment the court should have decided the issues no.1 and 4 in favour of the appellants. The Trial Court should not have placed reliance on the Will and then holding the right of the plaintiff to file the present suit. No reliance on the statement of PW3 or PW5 should have been placed in this regard. Probate Court's decision does not confer the title and it was for the plaintiff to prove his title before this court which he has failed. Even in the earlier decision also Ex. DW1/1, it was specifically held that Sh. Raj Kishore Gupta has no right. In fact the conduct and testimony of PW3,4 and 5 were highly un-reliable and RCA No. 80/2011 14 of 28 Shri O.N. Sharma Vs Gopal Gupta therefore the Trial Court should not have placed reliance upon their testimony. Sh. Raj Kishore Gupta himself claimed to be the adopted son in the revision before the Hon'ble High Court and also filed affidavit to this effect Ex. PW3/D.2. He filed another affidavit Ex. PW3/D-4 along with the rejoinder Ex. PW3/D.3 that he is the adopted son of Smt. Sona Devi. Now, in his testimony he cannot be permitted to say that in fact the present plaintiff was taken in adoption by Smt. Sona Devi. Ld. counsel submitted that keeping in view all these facts and evidence on record, the order of ld. Trial Court is not maintainable and prayed that the same be set-aside.
15. Ld. counsel for the respondent submitted that admittedly, there was earlier litigations between the parties. It is not denied that Sh. Gopal Krishan Sharma was the tenant rather the defendant/appellant now cannot be permitted to say that. In the judgment Ex. PW3/6 it is clearly held by Sh. V. B.Gupta, the then ld. Addl. Rent Controller that the contractual tenancy of Sh. Gopal Krishan Sharma was terminated and the tenancy was not of joint family. Ld. counsel submitted that in fact in the eviction petition, it was contended by the defendants therein that Sh. Gopal Krishan Sharma was not the tenant and in fact it was a joint family tenancy. This issue was decided and it was held that Sh. Gopal Krishan Sharma was the only tenant and after his death only his LRs can be tenant as per RCA No. 80/2011 15 of 28 Shri O.N. Sharma Vs Gopal Gupta law. Ld. counsel submitted that once it was already held that the tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.5.1971 and Sh. Gopal Krishan Sharma died as statutory tenant on 26.12.1971, by virtue of Section 2(l) of Delhi Rent Control Act, only his spouse got the right to succeed till her life time. Smt. Laxmi Devi also died and after her death her legal heirs does not get any right of tenancy. Ld. counsel submitted that thereafter, the possession of defendants have become un-authorized. It is admitted fact that none-else is residing in the premises except the two defendants/appellants. The ownership of Smt. Sona Devi is not disputed. Smt. Sona Devi executed a Will in respect of that Will a probate petition was filed. On the basis of Will dated 16.07.81 vide order dated 4.5.1987, letter of probate was issued. The respondents i.e. the appellants herein preferred a revocation petition but the same was dismissed vide order dated 20.4.2002. They also preferred an appeal which has already been dismissed vide order dated 1.09.2011 as they have no right, interest to challenge the same. Ld. counsel submitted that therefore by virtue of the last Will of Smt. Sona Devi dated 16.7.1981 the plaintiff has become the owner of the property. The appellants are unauthorized occupants and not the tenants, therefore, the bar of Section 50 of Delhi Rent Control Act is not attracted. Ld. Trial Court has rightly upheld so in its judgment. But so far as the issue no. 3 RCA No. 80/2011 16 of 28 Shri O.N. Sharma Vs Gopal Gupta is concerned as to whether the plaintiff is adopted son of Smt. Sona Devi to that effect Trial Court has not considered the evidence in right perspective. PW3 and 5 were examined, they are the natural parents of the plaintiff/respondent no.1 and they corroborates the contents of the registered Will of Smt. Sona Devi dated 16.7.1981 placed on record as Ex. PW3/1 and establish the adoption of Will. Translation of Will is on record wherein she has referred that plaintiff herein is the adopted son of Smt. Sona Devi. Ld. counsel submitted that there cannot be a better person to depose about the adoption ceremony except the natural parents and they have appeared in the witness box as PW3 and PW5. They have fully supported the factum of adoption. In the Will Smt. Sona Devi categorically stated that she adopted the plaintiff/respondent according to Hindu religion and rites. The Trial Court also came to the conclusion that Will is genuine and rather held the plaintiff to be the owner on the basis of the Will but on the contrary held that Will cannot be looked into for the purposes of corroboration of adoption. Ld. counsel submitted that the registered document is the best piece of evidence as being registered document it has more authenticity than oral evidence particularly when the Will was found to be genuine and ld. District Judge has already granted the probate on the basis of that Will. The revocation petition has already been dismissed and the appeal preferred against that has already RCA No. 80/2011 17 of 28 Shri O.N. Sharma Vs Gopal Gupta been dismissed. Ld. counsel submitted that even otherwise the defendant/appellant has no right to challenge or raise any objection against the Will. Once, the testator herself says in the Will, that she has adopted it proves that plaintiff/respondent no.1 is adopted son of late Smt. Sona Devi.
16. ld. counsel for the respondent relied upon the judgment cited as Jagdish Lal Aggarwal Vs Baldev Raj. Ld. counsel submitted that in view of this judgment infact the appellant/defendants have no right not only to challenge the Will but also the adoption by Smt. Sona Devi of plaintiff/respondent stands proved. Ld. counsel has also relied upon the judgment cited as Bharat Bhushan Vij Vs Arti Techandani 153 (2008) DLT 247 para 4 & 5. Ld. counsel submitted that so far as the other proceedings between Raj Kishore Gupta and shyam Sunder Sharma are concerned, the present plaintiff/respondent was not party in that suit and therefore that is not binding upon him. Ld. counsel in support of his arguments relied upon the judgment cited as Jagdish Lal Aggarwal Va Baldev Raj, 68 (1997) DLT 490. Ld. counsel submitted that keeping in view all these facts, the finding of the Trial Court on Issue no.3 is liable to be set aside and it has to be held that the plaintiff/respondent is the adopted son of Smt. Sona Devi.
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17. After hearing the arguments and going through the record, I found that in the present case Smt. Sona Devi is admittedly the owner and it is also not in dispute that Sh. Gopal Krishan was tenant, though, it is claimed that it was a joint tenancy but this issue was put to rest by Sh. V.B. Gupta, the then Addl. Rent Controller while deciding the eviction petition no. G-202/78 Ex. PW3/6 wherein it has been specifically observed by the court that:
" 17. Now coming to the question as to who has become the tenants in respect of the premises in dispute after death of Gopal Krishan.
18. According to the respondents, the joint family was the tenant in the premises since the inception of the tenancy.
19. Respondents have not filed even a single document to show that the tenancy was in the name of joint family. On the other hand, RW-3 Tirloki Nath admits in his cross examination, that rent receipt was being issued only in the name of Gopal Krishan. Similarly, RW-4 Onkar Nath Sharma has also admitted in his cross -examination that the receipt is in the name of Gopal Krishan only and further he has stated that till today the receipt which he had seen are in the name of Gopal Krishan but again stated that in no receipt joint family as tenant has also been written but he has stated that he has not brought those receipts.
20. So, respondent's witnesses themselves admit that rent receipts were issued in the name of Gopal Krishan only and if the joint family would have been tenant, the receipt would have been issued in the name of Joint family and this shows that only Gopal Krishan was the tenant. Further notice dated 3.5.1977 has admittedly been sent by the petitioner to the present respondents and service of this notice has been admitted by the respondents as respondents have filed themselves RCA No. 80/2011 19 of 28 Shri O.N. Sharma Vs Gopal Gupta copy of the reply which they have sent in response to the petitioners notice dated 3.5.77.
23. So, in view of the admissions made by the respondents themselves in their reply, it is admittedly, clear that contractual tenancy of Gopal Krishan was terminated vide notice dated 18.5.71 and further respondents themselves admit that Gopal Krishan Sharma was the tenant under the petitioner and the mere fact that Gopal Krishan Sharma has been residing in joint family will not meant that the tenancy has been created in the name of Joint Family and further there is clear admission by the respondents themselves in reply to their notice that Gopal Krishan Sharma is a tenant. So, I hold that after the death of Gopal Krishan Sharma, only his LR's can be taken to be tenant in the premises in dispute and the joint family cannot be taken to be the tenant and as such, the present petition against LR's Gopal Krishan is perfectly maintainable. Accordingly, this issue is disposed of."
18. It is important to mention here that revision against this order was preferred and that was also dismissed and therefore this finding has become final. So far as parties are concerned, before moving further, it is important to note that court of Sh. V. B. Gupta decided that tenancy of Sh. Gopal Krishan Sharma was terminated vide notice dated 18.5.1972 but the issue further raised is that Smt. Sona Devi waived the earlier notice sent by her by issuing another notice dated 3.5.1977 Ex.PW4/17. Ld. counsel for the appellant relied upon the judgment cited as M/S Chunni Lal Om Prakash Vs Inder Singh, AIR 1973 Punjab & Haryana 353 and Tayabali Jaferbhai Tankiwala Vs M/s Ahsan and Co. and others, AIR 1971 SC 102. But after going through the RCA No. 80/2011 20 of 28 Shri O.N. Sharma Vs Gopal Gupta notice Ex. PW4/17, I found that the notice itself is clear and shows the intention of Smt. Sona Devi that she does not intend to waive the earlier notice. The paras of the notice are reproduced herein which shows the intention of parties:
" 2. That my client during the lifetime of the said Sh. Gopal Krishan Sharma terminated his contractual tenancy of the tenanted premises through a registered notice dated 18.5.71 and as such Shri Gopal Krishan Sharma after the termination of his tenancy became the statutory tenant in the premises.
3. That Shri Gopal Krishan Sharma died on or about 26th December, 1971, as a statutory tenant and his legal heirs and representatives did not acquire any tenancy rights in the premises.
4. That due to the enactment of the Delhi Rent Control (Amendment) Act, 1976 Smt. Gopal Krishan Sharma being the widow became the tenant in the premises excluding other legal heirs of the deceased.
5. That my client in order to avoid complication and without prejudice to her rights is serving this notice to you requiring you to vacate and deliver the vacant possession of the premises under your tenancy to my client by the mid night of 31st May, 1977 or on the date on which you consider that your monthly tenancy comes to an end."
19. After going through this notice, I found that Smt. Sona Devi has no intention to waive the earlier notice rather she made it more clear. Even in this notice it is mentioned that contractual tenancy of Sh. Gopal Krishan Sharma has already been terminated through Notice dated 18.5.1971 and he became the statutory tenant and then she clarified that this notice is given only to avoid any complications without RCA No. 80/2011 21 of 28 Shri O.N. Sharma Vs Gopal Gupta prejudice to her rights. Therefore, I do not find any merit in the contention that by serving this notice Smt. Sona Devi has waived her earlier notice and I do not find any reason to differ with the opinion of ld. Trial Court.
20. Now, coming to the issue as to whether the defendants are the tenants in the property? Much stress is given on the pleading in eviction petition no. 202/78, copy of which is Ex. PW4/15 and also the order passed by Sh. V.B. Gupta, the then ld. ARC Ex. PW3/6. In the eviction petition itself Ex. PW4/15, Smt. Sona Devi made it clear in para no.14 which is reproduced here under:
"14. The premises were let out to Shri Gopal Krishan Sharma and his tenancy was an oral one. The petitionere duly terminated the contractual tenancy of Shri Gopal Krishan Sharma through a registered notice dated 18.5.71 and Shri Gopal Krishan Sharma sent a reply of the same dated 27.8.1971. Shri Gopal Krishan Sharma died on or about 26th December, 1971 as a statutory tenant in the premises. Due to enactment of the Delhi Rent Control (Amendment) Act, 1976 all the legal heirs of the deceased Shri Gopal Krishan Sharma have not become the tenants in the premises except the widow smt. Gopal Krishan Sharma (Laxmi Devi) but in order to avoid complications the petitioner has impleaded all the legal heirs of Shri Gopal Krishan Sharma as tenants in the premises."
21. From this para again, it is clear that she treated only the wife of Sh. Gopal Krishan Sharma as tenant and all the LR's have not become the tenant. But in order to avoid RCA No. 80/2011 22 of 28 Shri O.N. Sharma Vs Gopal Gupta any complication the other LR's were taken on record. Therefore, by saying that Smt. Sona Devi included the other LR's also in the petition or she treated them as tenants is not true. Now, according to the judgment of Sh. V.B. Gupta, the then ld. ARC, the issue before the court was as to who has become the tenants in respect to the premises in dispute after the death of Sh. Gopal Krishan and the issue arose because the respondents in that eviction petition took the plea that it was not Sh. Gopal Krishan Sharma but the joint family who took the premises on rent and the court opined that it was only Sh. Gopal Krishan Sharma and not the joint family and therefore observed that after the death of Sh. Gopal Krishan Sharma only his LR's can be taken to be tenant as per law in the premises in dispute and the joint family cannot be taken to be tenant and as such the present petition against the LR's of Sh. Gopal Krishan Sharma is perfectly maintainable. It is important to note that in this judgment itself it has been held that contractual tenancy of Sh. Gopal Krishan Sharma was terminated by notice dated 18.5.1971. Once, this is established rather the court observed that the defendants in the eviction petition admitted the factum of service of notice it clearly shows that the contractual tenancy of Sh. Gopal Krishan Shrma came to an end and he became the statutory tenant. The succession of statutory tenant is governed by Section 2 (l) of Delhi Rent control Act 1958 and it provides the RCA No. 80/2011 23 of 28 Shri O.N. Sharma Vs Gopal Gupta order of succession in the event of death of person continuing in possession after termination of his tenancy and the first person to succeed in the case of death is surviving spouse as provided in explanation 1(a) and this right will continue till his/her death. The question was never decided in the earlier eviction petition as to who will succeed to the tenancy right of Sh. Gopal Krishan Sharma who died as a statutory tenant. The issue which was decided was in view of the objection taken as to whether the joint family was tenant or Sh. Gopal Krishan Sharma was the tenant and the court came to the conclusion that only Sh. Gopal Krishan Sharma was the tenant and therefore observed that only his LRs will become tenant as per law and according to law the succession is to be followed according Section 2 (l) the right goes to surviving the spouse if the statutory tenant is having one at the time of death and so on. Therefore, the Trial Court has rightly come to the conclusion that this issue was not decided in that judgment and decided it in the suit that the succession is to be governed according to Section 2(l). According to this Section the tenancy devolves only to Laxmi Devi w/o Sh. Gopal Krishan Sharma and this right will continue till her life time with no further right of succession. Admittedly, Smt.Laxmi Devi had also died and after her death the tenancy right cannot be inherited by her LR's as the tenancy right further cannot be inherited, therefore, the possession of the present defendants RCA No. 80/2011 24 of 28 Shri O.N. Sharma Vs Gopal Gupta who are in occupation became as that of un-authorised occupants. As they are the un-authorized occupants, therefore, the law does not require that the land lord/owner shall issue notice u/Sec. 106 of Transfer of Property Act before seeking possession. In view of this position, in my opinion, the law relied upon by ld. counsel for the appellant is of no help to him that notice u/Sec. 106 of Transfer of Property Act was required to be served before filing the suit as held by Apex Court in case titled as M/s Nopany Investments (P) Ltd. Vs Santosh Singh (HUF), AIR 2008 SC 673. Therefore, I do not find any force in the arguments of the ld. counsel for the appellant that no notice was given, hence, the suit is not maintainable.
22. The Trial Court has rightly held that tenancy of Gopal Krishan Sharma was terminated. He died as statutory tenant following the judgment Ex. PW3/6 and rightly came to the conclusion that as Sh. Gopal Krishan Sharma died as statutory tenant, tenancy was inherited by only her spouse Smt.Laxmi Devi for her life time and after her death her LR's became un-authorised occupant as they were not having any right o inherit the tenancy.
23. So far as the issue of adoption is concerned, there is a Will on record, admittedly the probate has already been obtained on the Will and grant of probate is only to the RCA No. 80/2011 25 of 28 Shri O.N. Sharma Vs Gopal Gupta conclusion as to appointment of the executor and the valid execution of Will. Hon'ble Supreme Court has held in Rukmani Devi Vs Narender Lal, AIR 1984, Supreme Court that the probate granted by the competent court is conclusive of the validity of the said Will unless it is revoked. In this case probate has already been granted and according to Will Smt. Sona Devi has bequeathed her property in the name of plaintiff/respondent. It is proved on record that revocation petition of grant of probate has been dismissed and the appeal preferred against that has already been dismissed and therefore, plaintiff became the owner of the property. So far as the question of adoption is concerned, ld. counsel for the appellant argued that the respondent/plaintiff has failed to prove and establish the same as PW3 himself moved application in the revision petition before the Hon'ble High Court proved as PW3/D-2 alleging himself to be the adopted son of Smt. Sona Devi supported by affidavit and now his statement that it is not he but his son i.e. the present respondent Sh.Gopal Gupta was adopted cannot be believed. In this respect, it is important to note that Smt. Sona Devi executed the Will which is registered document wherein she had clearly mentioned that she had adopted Sh. Gopal as per Hindu rites and this Will is dated 16.7.81 and she has mentioned that she has adopted Gopal in the last Navratra. Smt. Sona Devi died on 19.7.83 where as the adoption is RCA No. 80/2011 26 of 28 Shri O.N. Sharma Vs Gopal Gupta 7.10.80 and she mentioned this fact in her Will dt. 16.7.81. there is no reason to dispute this averment in the Will particularly when the competent court has already held that the Will is genuine and granted the probate. Even otherwise she made this statement in favour of plaintiff and not a self serving statement. This statement was made when this was not in dispute and she was not having any slightest apprehension that tomorrow any such dispute may arise. So far as the testimony of PW3 and PW5 is concerned, no doubt, conduct and deposition of PW3 is not reliable, keeping in view the fact that he himself moved application u/O 22 Rule 3 CPC before the Hon'ble High Court in the revision petition claiming that he is adopted son of Smt. Sona Devi and also filed affidavit to this effect, but so far as the testimony of PW5 is concerned, she is the natural mother of the present plaintiff/respondent. She has also supported the fact of adoption and it is well settled law that natural parents can be the best witness in this regard.
24. Keeping in view the averment made by Smt. Sona Devi in her Will in favour of the present plaintiff that he is her adopted son not knowing that there can be a dispute tomorrow with respect to the adoption and the statement was made during her life time through Ex. PW3/2 supported by PW5, the natural mother of plaintiff/respondent. In this regard reliance RCA No. 80/2011 27 of 28 Shri O.N. Sharma Vs Gopal Gupta can be placed upon judgment Jagdish Lal Aggarwal Va Baldev Raj, 68 (1997) DLT 490. In my opinion, the adoption also stands proved, though, the un-authorised occupant or the tenant has no right whatsoever to challenge the adoption by the land lady.
25. Keeping in view the above discussion, I found that plaintiff/respondent is entitled to the possession of suit property from the appellants who were the un-authorized occupants of the property and also the mesne profits as decreed by the ld. Trial Court, there is no merit in the appeal preferred by Sh. O.N. Sharma and others, the same is dismissed.
26. So far as the cross objection by Sh. Gopal Gupa is concerned, the same is allowed and the order of the Trial Court to that extent is set-aside that Gopal Gupta is not the adopted son of late Smt. Sona Devi.
Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
Announced in the open court on 05.04.2013.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 80/2011 28 of 28
Shri O.N. Sharma Vs Gopal Gupta
05.04.2013.
Present: Counsel for the parties.
Vide separate order, the present appeal is dismissed.
So far as the cross objection by Sh. Gopal Gupta is concerned, the same is allowed and the order of the Trial Court to that extent is set-aside that Gopal Gupta is not the adopted son of late Smt. Sona Devi.
Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 80/2011 29 of 28
Shri O.N. Sharma Vs Gopal Gupta
RCA No. 80/2011 30 of 28