N.N. Goswamy, J.
(1) This second appeal by the tenant is directed against the order dated 18-5-1979 passed by the Rent Control Tribunal whereby the first appeal of the tenant against the order of eviction was dismissed.
(2) The appellant is a tenant in the first floor of the property bearing Municipal No. 900, East Patel Nagar, New Delhi since 1961. The respondent landlord filed a petition for eviction under Section 14(1),(b),(e)& (h) of the Delhi Rent Control Act. I am not concerned in this appeal with clauses (b) and (e) inasmuch as the petition of the landlord under these two clauses was negatived and the eviction based only on clause (h) of Section 14(1). It was pleaded that apellant had recently acquired vacant possession of residence in G-114, Anand Niketan where he has shifted with his family. The notice of eviction in the present case was dated 30-6-1971.
(3) In the written statement the appellant took up the plea that he had not acquired any new residence and that the said house G-114 Anand Niketan had been taken on rent by hii wife who is an independent partner in the business and is not dependent upon the appellant. It wai further averred that the premises in dispute being located near the place of the appellant are being kept by the appellant for his own independent use. The facts mentioned in the eviction petition that the appellant with his family had shifted to the new residence in G-1 14, Anand Niketan were not controverter.
(4) In spite of the fact that it was not controverter that the appellant had shifted to the new residence, some evidence to that effect was recorded. On perusal of the evidence the Tribunal came to the conclusion that the appellant had shifted with his family to the new residence. The children of the appellant had been admitted in defense Service Public School near Anand Niketan and the address in the school as given was that of Anand Niketan. The appellant himself admitted that his ration card is also from the new premises and he and his wife were registered as voters from the new premises. The appellant was also served with the notice of eviction petition at the new address. Admittedly the telephone and the television were also shifted to the new address.
(5) Section 14(1)(h) of the Delhi Rent Control Act is as follows :
(H)that the tenant has, whether before or after the commencement of this Act, built, acquired vacant .possession of or been allotted, a residence'.
From the reading of the aforesaid provision it is apparent that occupation of the new residence by the tenant without any legal right to do (r)o would not be covered by proviso (h) to Section 14(1) of the Delhi Rent Control Act. If he goes to stay in the house of his wife, legally speaking he has no right to stay and can be turned out from the house at any time by his legal owner. There is no law according to which the husband and the wife can be deemed to be one person. thereforee, it is apparent that proviso (h) requires that the tenant himself should acquire vacant possession of another residence before he can be held liable to eviction under this proviso. He must have a legal right to stay in the new premises.
(6) The concurrent finding of fact of the two courts below is that the tenancy acquired in the name of the wife was only benami and the real tenant was the appellant himself. This finding of fact is based on evidence. Though it is not necessary to refer to the said evidence in view of the fact that the benami nature is essentially a question of fact as held by their Lordships of the Supreme Court in Sree Meenakshi Mills Ltd. v. Commissioner of Income-tax, 0044/1956 : 1SCR691 . All the same I have gone into this finding and I have also been taken through the relevant evidence on record. The most important witness on this point is Aw 8, i.e., the landlord of the new premises acquired by the appellant. From the record I find that in spite of the fact that he had been summoned as a witness he was reluctant to appear and notice under Order 16 Rule 12, Code of Civil Procedure had to be issued to compel his attendance. He deposed that he had let out the house to Smt. Sarla Mittal wife of the appellant w.e.f. May 1, 1971. He also stated that it is the appellant who executed the lease deed but according to him the rent had always been paid in cash by the appellant's wife and the lease deed was not acted upon. He further admitted that when the lease deed was executed by the appellant, the appellant's wife was not present. In cross-examination he stated that the possession of the premises was given by him to the appellant's wife as the appellant had stated that for various reasons he did not want to take the house on rent in his own name. He also proved the rent receipts Ex.R-1 to Ex. R-14 which show the appellant's wife as the tenant. He further stated that the tenancy in favor of the appellant's wife was oral and the lease deed executed by the appellant was not acted upon. He stated that in May the appellant had said that if Mrs. Mittal became the tenant, he should have no objection and on this suggestion he agreed. From this evidence it can easily be concluded that the tenant in fact was the appellant but he intentionally in order to save his tenancy persuaded the landlord to agree to take Mrs. Mittal as the tenant. There is no evidence on record to show that Mrs. Mittal has any independent income or is in position to pay the rent of the premises. The appellant has merely stated that she is a partner in some business but has failed to produce any such partnership deed or accounts which would show that Mrs. Mittal had any income of her own. In this situation no fault can be found with the finding of fact recorded by by the two courts below.
(7) The only other contention of the learned counsel for the appellant was that tenancy can never be benami. This argument, in my opinion, has no force in view of a clear decision of this Court. In Smt. Balquia Jehan Begum v. Sibghatulla and another, it was held that it cannot be disputed that tenancy can be held benami. even otherwise I do not find any reason to take a contrary view.
(8) The underlined object of enacting clause (h) or the proviso to Sub- section(1) of Section 14 of the Delhi Rent Control Act was that tenant should not have more than one premises for his residence in these days of housing shortage. In case the tenant has taken on rent any premises for his residence and thereafter acquires the vacant possession of another premises for his residence, the tenant in such an eventuality would have to quit the earlier tenanted premises. Admittedly, the tenant has acquired new premises and it is not the case of the tenant that the accommodation for their residence is not sufficient in the new premises. The mere fact that the tenant has a place of business near the premises in dispute is no ground to allow the tenant to retain two residential premises. The landlord is clearly entitled to evict the appellant.
(9) For the reasons recorded above I do not find any merit in this appeal which is dismissed with costs. Counsel fee Rs. 250/.