RAVI PRAKASH GARG Vs. JASWANT SINGH JAISWAL

JUDGEMENT

(1.) ORDER impugned is the order dated 01.11.2011; the eviction petition filed by the landlord Jaswant Singh Jaiswal seeking eviction of his tenant Ravi Prakash Garg from the disputed premises i.e. the first floor of property bearing No. C -2/3, Rana Pratap Bagh, Delhi had been decreed in his favour; application filed by the tenant seeking leave to defend had been dismissed. Record shows that the present eviction petition has been filed by the landlord on the ground of bonafide requirement. Contention is that these premises had been let out to the tenant at monthly rental of Rs. 2650/ - excluding electricity and water charges. The original owner of the property was Shanti Devi, the mother of the petitioner; she had acquired this property by way of a sale deed dated 22.5.1953; the tenant had been inducted in the premises by Shanti Devi in terms of a written rent agreement. After the death of Shanti Devi by virtue of a registered will dated 13.8.1996 the entire property was bequeathed in favour of her three sons i.e. the petitioner and his brothers Dr.Kanwar Amrinder Jit and Mohinder Jit Singh Jaiswal. Mohinder Jit Singh Jiaswal was mentally retarded and remained unmarried during his lifetime; he had died issueless on 02.8.2001 during the life time of Shanti Devi; the property thereafter devolved upon the two brothers i.e. the present petitioner Jaswant Singh Jaiswal and his brother Kanwar Amrinder Jit. The petitioner was a resident of America; he had acquired a NRI status; he continued to remain in America as he had been employed as a forensic scientist in with the U.S.Department of Homeland Security in USA from where he retired on 02.01.2010 after the service of almost 30 yea Rs. After his superannuation the petitioner and his wife wish to settle and live in India i.e. in the aforenoted premises; they have no other reasonable suitable accommodation where they can live; even during the lifetime of the mother of the petitioner, the petitioner and his wife used to visit India to see his ailing mother; he now wishes to spend his remaining life in Delhi. The petitioner and his wife in fact returned to Delhi in January 2010 and are presently residing in the ground floor of the premises C2/3, Rana Pratap Bagh, Delhi which ground floor has fallen to the share of Dr. Kanwar Amrinder Jit; the two brothers had entered into a amicable family settlement by virtue of which Dr.Kanwar Amrinder Jit became the owner of the ground floor and the entire first and second floor with roof right had fallen to the share of the present petitioner. The petitioner has two sons namely Harinderjit Singh Jasiwal and Harjit Singh Jaiswal both of whom are married and he has three grandchildren; although both the sons are living in America yet his younger son Harjit Singh Jaiswal has to come India for the purpose of expansion of his business and he used to stay with the petitioner. Present petitioner now wishes to settle in India. Eviction petition has accordingly been filed.

(2.) LEAVE to defend had been filed; eviction petition had been contested. Contention is that the need of the landlord is not bonafide, it is in fact malafide; the petitioner has an NRI status and his passport evidences the fact that it is valid up to 2017; petitioner has no intention to settle in India. This eviction petition had been filed only for ulterior purposes. Second submission is that family settlement arrived at between the two brothers is not only unregistered but it is under stamped and as such it cannot be relied upon. Reliance has been placed upon : AIR 1976 SC 807 Kale & O Rs. Vs. Deputy Director of Consolidation; submission being that such family settlement is required to be registered; otherwise it would be inadmissible. Reliance has also been placed upon : (2009) 2 SCC 532 Avinash Kumar Chauhan Vs. Vijay Krishna Mishra; contention being that Section 35 of the Indian Stamp Act creates a bar. Submission of the petitioner is that triable issue has arisen on these aforenoted counts. Further submission being that the brother of the petitioner is in fact not living on the ground floor in Delhi; this ground floor is available to the landlord and his family as his brother is the Head of the Department of Dermatology. PGI, Chandigarh and he is a resident of Chandigarh; last submission being that the petitioner is living in USA and he does not require the premises in Delhi. All these grounds raise triable issues; as such the impugned order decreeing the eviction petition suffers from an infirmity. To support this submission reliance has been placed upon a judgment reported in : (2001) 1 SCC 706 Inderjeet Kaur Vs. Nirpal Singh. Contention being that in the summary procedure engrafted under Section 25(B)(4) of the DRCA, burden which is placed upon the tenant is light and limited and if the affidavit filed by him discloses such facts which would dis -entitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the DRCA; it is enough to grant leave to defend.

(3.) IN 1995 RLR 162 Jiwan Lal Vs. Gurdial Kaur & O Rs. a Bench of this Court while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRCA had noted as follows: