JUDGMENT S.B. Wad, J.
(1) This is tenants second appeal against the order Rent Control Tribunal directing his eviction under Section 14(l)(b) and 14(l)(k) of the Delhi Rent Control Act. The finding of the Tribunal is that appellant No. 1, Ram Karan, had sub-let the premises to appellant No. 1, Kanhaiya Lal without the consent in writing from the landlord. The other finding is that contrary to terms of the lease on which the plot under the suit premises has been given to the respondent landlord by the Dda, the appellant No. 2 is using the premises for non-residential purpose.
(2) The concurrent finding of facts by the Rent Controller and by the Rent Control Tribunal are :
1.That the rent note was executed in favor of appellant No. 1. Ram Karan by the predecessor-owner of the respondents while letting out the premises and not in favor of appellant No, 2. Kanhaiya Lal;
2.The rent receipts all along have been given by the landlord in the name of appellant No. I, Ram Karan;
3.Appellant No 2, Kanbaiya Lal, is running a shop in the suit premises while under the Dda lease the premises can be used only for residential purposes;
4.The landlord had not given any written consent to appellant No. 1 Ram Karan, for sub-letting the premises to appellant No. 2.
(3) Counsel for the appellant, however, submits, that after the premises were let out the Ram Karan in 1955, he started the business in the suit premises with Kanhaiya Lal Sometime, thereafter appellant No. 1, Ram Karan left the premises and went to Calcutta. After Ram Karan left for Calcutta the suit premises came under the occupation of appellant No. 2, Kanhaiya Lal and he has been paving the rent of the premises. The contention of the appellant No. 2, Kanhaiya Lal is that he is a tenant in his own right by virtue of his occupation and payment of rent.
(4) It is clear from the finding of fact recorded by the two Courts below that the rent receipts are in the name of Ram Karan and not in the name of Kanhaiya Lal. There 's nothing to show on record that the landlord accepted the rent from Kanhaiya Lal in his own light as a tenant. Creation of tenancy is by a positive act of contract between the parties. The rent note is not in favor of Kanhaiya Lal Since the landlord has not accepted the rent from Kanhaiya Lal as his own payment, it cannot be inferred in law that by the conduct of acceptance of rent the landlord has recognised Kanhaiya Lal as a tenant.
(5) Counsel for the appellants has referred to the decision of this Court reported in 1971 Rcr Pg. 95. In that case it was found by the Court that the original team was approached by respondent No. 2 (the alleged sub- tenant) to find out the accommodation for him. After finding out the accommodation he put the respondent No. 2 in possession and never stayed in the premises at all. Although the rent receipt was in the name of the original tenant, it was acknowledged by the landlord on the receipts themselves that the rent paid by respondent No. 2. On these facts this Court came to the conclusion that respondent No. 2 was the real tenant. In the present case Ram Karan, appellant No. 1. did, in fact stay in the, premises in question before migrating to Calcutta. The rent receipts do not show that the landlord had recognised that it was Kanhaiya Lal who was making the payment and not Ram Karan. The said decision is, therefore, clearly distinguishable on facts and does not help the appellants.
(6) As regards the use of the premises for non-residential purposes, contrary to the lease, The facts established on evidence are that after receiving the notice for the cancellation of lease by the Dda, the landlord had served a notice on the tenant to slop the use of the premises for non-residential purposes. The landlord had given an undertaking to the Dda that he will take steps, according to law, to slop the use of the premises for non-residential purposes, by the tenant and on that undertaking the Dda did not cancel the lease or resume possession of the plot This is clearly established by the documentary evidence and evidence oi Ram Saran, who appeared on behalf of DDA. The counsel for the appellants, therefore, could not persuade me to take a different view on the findings recorded by the two Courts below.
(7) For the reasons stated above, there is no merits in the second appeal and the same is dismissed with costs.
(8) Appellant should vacate the premises and hand over peaceful possession to the landlord within one month from today.