INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 25.03.2011; the eviction petition filed by the landlord under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA) had been decreed. The application seeking leave to defend filed by the tenant had been dismissed. Premises in dispute are the first floor of property No. 29, Rajdoot Marg, Chanakya Puri, New Delhi.

2 Record shows that an eviction petition had been filed by the landlord against his tenant on the ground of bonafide requirement; there are two petitioners i.e. mother and son; contention being that they are the owners of the aforenoted property; earlier this property was owned by petitioner No. 1 and his three brothers besides petitioner No. 2. Disputes had arisen between the family. A suit for partition being suit No. 293/2003 had been filed. A partition decree had followed on 27.08.2003; by virtue of this partition decree, the afore noted property had fallen to the share of the aforenoted two petitioners whereas the property bearing No. 11, Patel Road, West Patel Nagar, New Delhi had fallen to the share of the other three brothers. The petitioners have become the sole owners of the afore noted suit property. Plaintiff No. 1 who was earlier residing at House No. 11, Patel Road, West Patel Nagar, New Delhi because of this dispute had shifted his residence to Heritage City, M.G. Road, Gurgaon, Haryana; he had shifted there along with his wife in 2003; he has not been able to live there comfortably; his business interests are in Delhi; he is aged about 70 years and has to travel to Delhi on a daily basis which causes great hardship to him; property at Heritage City, M.G. Road, Gurgaon, Haryana is not suitable for the requirement of the petitioner; he wishes to set up his residence in Delhi. It has further been contended that petitioner No. 2 is also residing along with him in Patel Road, West Patel Nagar and after petitioner No. 1 shifts to property No. 29, Rajdoot Marg, Chanakya Puri, New Delhi, she will also join him there. These were the grounds on the basis of which the eviction petition had been filed.

3 It is not in dispute that during the pendency of this petition, petitioner No. 2 had expired and by virtue of a registered Will dated 21.08.2004, she had bequeathed her share in the property to petitioner No. 1.

4 Leave to defend had been filed. Title/status of the petitioners as owners/landlords has been questioned; it is contended that the partition decree is a sham; it has been obtained in collusion between the brothers and is of a self-serving nature. The partition decree does not establish the submission made by the landlord that he was earlier living in Patel Road, West Patel Nagar and has now shifted to Heritage City, M.G. Road, Gurgaon; further contention being that cheques were being sent at Patel Road, West Patel Nagar, where they have also been received; further contention being that the office of business of exports of the landlord is located in West Patel Nagar, Delhi which is in an area of more than 1000 square feet and this building comprises of 2- ½ floors; this should be sufficient for the needs of the petitioners. The contention that Gian Kaur has left a Will bequeathing this property in favour of the petitioner is also a triable issue. To support the submission, learned counsel for the tenant has placed reliance upon (1996) 6 SCC 373 S.K. Sattar Sk. Mohd. Chaudhari Vs. Gundappa Amabadas Bukate; submission being that it is open to the tenant to show that the partition was not bona fide and was a sham transaction which has been executed to overcome the rigours of the rent control law. To the same effect is the ratio of the judgment reported as AIR 1982 SC 1213 Devi Das Vs. Mohan Lal. Reliance has also been placed upon 34 (1998) DLT 186 Sushila Devi Vs. A.C. Jain to support his submission that where collusiveness has been alleged, it is open for the tenant to challenge the partition decree.

5 Arguments have been refuted.

6 Record has been