Santosh Duggal, J.:— Shri S.P Bawa, (since dead), who was the original owner/landlord of the premises, being Shop No. 19/5, West Patel Nagar, New Delhi, filed an eviction petition against Smt. Ishwar Kaur, as respondent No, 1, and Gurnam Singh (appellant No. 2 herein), as respondent No. 2, alleging that Ishwar Kaur was tenant in the shop with effect from 1965, by virtue of a judgment of the Rent Control Tribunal, passed in eviction proceedings, taken out earlier by the landlord against one Balwant Singh, impleading Ishwar Kaur as respondent No. 2, alleging her to be the sub-tenant.

In appears that in view of the concurrent findings in that eviction petition, the landlord accepted the decision, holding Ishwar Kaur being a tenant, and the eviction petition, out of which this second appeal has arisen, was filed in April 1971 invoking provisions of clauses (a) and (b) of the proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (for short ‘the Act’).

The allegations were that besides committing defeault in the payment of rent, Ishwar Kaur had, without obtaining consent in writing of the landlord, sub-let, assigned or parted with possession of the suit premises in favour of respondent No. 2 who was alleged to be in exclusive possession of the same. In so far as ground of non-payment of rent was concerned, an order under section 15 (1) of the Act was passed, and there is no dispute that Ishwar Kaur, so long as she was alive, kept on complying with the same. She, however, died during the pendency of the eviction proceedings. The Controller took the view that since Ishwar Kaur had become a statutory tenant by virtute of termination of her tenancy by means of a notice, the tenancy was not heritable, and that her daughter (Kulwant Kaur, appellant No. 1 herein), who was her only legal representative, could not avail of provisions of section 14(2) of the Act by complying with the provisions of section 15 (1). It was on this view, that the landlord/petitioner was held entitled to eviction order on the ground of nonpayment of rent.

In so far as the second ground was concerned a finding was returned after appraisal of the evidence that Gurnam Singh was in exclusive possession of the shop, and that the withnesses examined by the respondent, including Balwant Singh, brother of Gurnam Singh stated that it was only Gurnam Singh who was in control and possession of the shop premises, and that Ishwar Kaur never came to the shop. The improvement, which was sought to be made by Kulwant Kaur, while appearing as RW. 3, to the effect that the shop was opened and closed by the servant during the life time of her mother, on her behalf seemed to be an after thought, and was rejected as such. Gurnam Singh, appearing as RW2, admitted the fact which was alleged in the eviction petition, that a printing press was installed in the shop premises, but contended that the same was financed by Ishwar Kaur, and that the printing press machine had been purchased in the name of the Company. In view of the fact that no receipt could be produced showing purchase of the printing press, in the name of Ishwar Kaur, and in the absence of any other evidence to show that Ishwar Kaur was never in control or had participated in the business being run in the shop premises, the finding returned was that it was a case of assignment or parting with possession of the shop by Ishwar Kaur in favour of Gurnam Singh. The plea of respondent that Gurnam Singh was husband of the only daughter of Ishwar Kaur, and that both the daughter and son-in-law were living with her and that Gurnam Singh was in possession of the shop premises in his capacity as a ‘Ghar Jamai’ did not find favour with the court.

On an appeal being filed before the Rent Control Tribunal, both the findings in respect to ground of non-payment of rent, on account of legal proposition that the tenancy was not heritable, as also the finding of fact on the question of subletting were upheld, and the appeal filed by the appellants was dismissed.

In this second appeal, the findings have been assailed. Mr. Seth appearing for the appellants argued, in (he first instance, that the view taken by the courts below that the tenancy was not heritable, and to that extent the benefit of section 15 (1) or section 14 (2) could not be availed of by the legal representatives, was not correct in view of the judgment of the Supreme Court in the case reported as AIR 1985 S.C 796, Smt. Gian Devi Anand v. Jeevan Kumar and others. It has been held in this case, decided by five Judges Bench, that a tenancy in respect to commercial premises, irrespective of the fact that status of the tenant, was that of a statutory tenant at the time of death was heritable, and to that extent his legal representatives could avail of the benefit of section 14 (2) of the Act by continuing to comply with the orders passed under section 15(1) of the Act.

Mr. Dhir has not cited any authority to the contrary, but it transpires that this decision has been confirmed in a later judgment of the Supreme Court in the case reported as AIR 1987 S.C 117, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram.

In view of this established view, the position that emerges is that the ground of non-payment of rent, as covered by clause (a) of proviso to section 14 (1) would become non est so far as this eviction petition was concerned. Since I have no material before me to give a finding as to whether inspite of the view taken by the courts below, Smt. Kulwant Kaur, appellant No. 1, as legal representative of deceased Ishwar Kaur, continued to comply with the orders passed under section 15 (1) and whether she discontinued to do so, for the reason that even if the rent was deposited, that would have been futile because of the view adopted by the courts; I am of the view that appellant No. 1 cannot be made to suffer on account of that. The eviction order passed on account of non-payment of rent does not seem to be sustainable for this reason.

However, in so far as the ground of sub-letting is concerned, I find that there is a concurrent finding of fact by the two courts below to the effect that on the evidence that was brought on record, Gurnam Singh has been shown to be in exclusive possesion of the shop. The evidence has been discussed in detail by the learned Tribunal and it is found that not only the appellants' withnesses admitted that Gurnam Singh alone was in possession or control of the business of printing press, but otherwise also, when cross-examined Gurnam Singh could not produce any documentary evidence to show that Ishwar Kaur had purchased the printing press or had financed the same. He gave very vague reply that he purchased it in the name of the company without elucidating whether it was a partnership or what was the nature of that company, nor did he produce any receipt showing in whose name purchase has been made. I, therefore, do not find any case made out for disturbing the concurrent finding of fact recorded by the two courts below. There is no plea either that the landlord had in any manner consent to Gurnam Singh being put in possesssion.

The only question which remains to be examined is as to whether in view of the relationship set up by the respondents in the eviction petition, namely Gurnam Singh being son-in-law of tenant Ishwar Kaur, and further plea that he was the husband of only daughter of Ishwar Kaur and both of them were living with her, the inference arrived at by the courts below that the exclusive possession of Gurnam Singh was tantamount to sub-letting or parting with possession is sustainable or not. Mr. Seth argued that in view of the appelllants that they were living together with the deceased Ishwar Kaur, the finding was not justified.

Mr. Dhir has, however, placed reliance on a judgment of the Supreme Court reported as 1973 Rent Control Reporter 520, Dr. Vijay Kumar and others v. Raghbir Singh-Anokh Singh, where a father had allowed a part of the shop premises to be used by his two sons, who had set up a separate business, and a plea was raised that in face of the close relationship of father and sons, even when exclusive possession of part of the premises had been made over to the sons, it could not be a case of subletting, assignment or parting with possession, but only an attempt by the father to settle his sons. The defence was rejected by the Court.

The ratio of this case is on all fours with the present case, because once the concurrent finding is accepted that Gurnam Singh was in exclusive possession of the shop, and control of the business, of the printing press, and that Ishwar Kaur did not have any connection with the business or did not have any control over the premises, then the mere fact that Gurnam Singh was her son-in-law, and he and his wife were living with Ishwar Kaur would not make any difference because the Supreme Court held specifically in the case of Dr. Vijay Kumar (supra) that no presumption could be drawn from mere relationship of father and sons, or from joint living and joint messing, that the second and third appellants, (sons), were in permissive possession of the half portion of the shop, and that it was not a case of assignment or parting with possession in their favour.

On a parity of reasoning, it can be said in this case also that in view of the facts as found, the relationship of Gurnam Singh with Ishwar Kaur would be inconsequential in so far as the allegation of assignment or parting with possession of the shop by Ishwar Kaur in his favour is concerned.

The authorities cited by Mr. Seth on behalf of the appellants, are clearly distinguishable. The case reported as 1986 (1) Rent Control Reporter 601, Ram Kumar and others. v. Rajinder Thakur and others, was a case of residential premises and there was a clear finding that the alleged sub-tenant was not in exclusive possession of any portion of the premises, and that there was no separate access to the portion in his occupation, and the other person was found, as a matter of fact, to be living with the tenant as a guest, without enjoying the right of any exclusive possession. It was in this setting of facts, that a learned Single Judge of this Court held that the case of sub-letting, assignment or parting with possession was not made out.

The case before the Supreme Court reported as AIR 1974 S.C 280, Smt Krishnawati v. Shri Hans Raj, was decided on the facts of that case, when there was a concurrent finding of fact in favour of the tenant, holding clearly that the respondents in the eviction petition were husband and wife and that the business was being run in the shop ever since the date of commencement of the tenancy, and there were uncontroverted statements of the husband and the wife, that the wife was associated with the business being run in the shop premises. That case has been decided on its own facts, and the concurrent findings of the two courts below were honoured. I do not think that the appellants can draw any support from this decision.

In view of the above, I do not find any merit in this appeal, in so far as the ground covered by clause (b) of proviso to section 14 (1) of the Act is concerned. The appeal is, therefore, liable to be dismissed. The same is accordingly dismissed with cosnts. Counsel's fee Rs. 1000/-.

It may be noted that the original landlord/owner of the shop premises Shri S.P Bawa died during pendency of this second appeal and his legal representatives have been brought on record. It is made clear that the eviction order which is being maintained by dismissal of this appeal would enure to their benefits.