( 1 ) AGGRIEVED by the order of dismissal of the petition on the ground of Section 14 (1) (h) of the Delhi Rent Control Act by the Addl. Rent Controller and Rent Control Tribunal on the ground that the petitioner has failed to made out a case under proviso (h) of Section 14 (1) of Delhi Rent Control Act, the appellant/landlord has filed this second appeal.

( 2 ) RESPONDENT is a tenant in respect of premises bearing No. 81, Pashchmi Marg, Vasant Vihar, New Delhi having five bed rooms, drawing room and dining room on a plot of land admeasuring 800 sq. yards. Premises were let out to the respondent at the rate of Rs. 1,500. 00 per month by a registered lease-deed dated 1. 4. 1970 for a period of three years for residential purposes with option for another two years. Lease was finally expired in the end of March, 1975 by efflux of time.

( 3 ) PRESENT eviction petition was filed in the year 1985. The ground taken was that the wife of the tenant Smt. Sudesh Ramana has built a very commodious residential house bearing No. S-248, Panchsheel Park, New Delhi, which was then let out at a monthly rent of about Rs. 10,000. 00 per month. It was further contended that the respondent and his wife were on very good terms and were living together in the property in question throughout. It was further averred in the petition that the wife of the respondent has also received another residential house (No. . B-11, Swami Nagar, New Delhi) under a will executed by her mother. The stand of the wife of tenant, Smt. Sudesh Ramana was that she was the absolute and exclusive owner of house No. S-248, Panchsheel Park, New Delhi, plot of the said house was acquired by her even prior to her marriage, she was independently assessed to income-tax and she raised the construction by her own funds on the said plot of land and her husband has no legal right to live in the house. She stated that she will not allow her husband or anybody else from his family to reside in it. It was the testimony of RW 9-Smt. Sudesh Ramana before the Addl. Rent Controller that RW 9, her husband and husband s parents have a common kitchen/mess. They were living together in the suit premises as one unit. There was one kitchen and common mess. This is how the trial court has dealt :-

"to my mind there is no force in the contention of learned counsel for the petitioner. Unity of the family may require that a husband would always live with the wife. But it does not mean in law that the property of wife belongs equally to the husband. Admittedly the fact of cordial relations between the tenant and his wife of common and one mess and residence in the suit premises as a single family unit does not in law mean that the tenant would have equal right in property acquired by wife. "

( 4 ) THE Addl. Rent Controller on the basis of the testimony of respondent that property at Swami Nagar exclusively belongs to his son Ravinder Singh after the death of his mother-in-law on the basis of a Will left by her also held that tenant had no right in the property at Swami Nagar, New Delhi. It was also on record that said Ravinder Singh was a minor at the time of execution of the will and the wife of the tenant was the sole executrix of that Will. It was further mentioned in the said Will that Smt. Sudesh Ramana shall let out the said property for the benefit of Ravinder Singh only. Therefore, the Addl. Rent Controller held that acquisition of house No. B-ll, Swami Nagar, New Delhi by the said Ravinder Singh does not bring the tenant within the mischief of proviso (h) of Section 14 (1) of the Delhi Rent Control Act.

( 5 ) IT was held by Addl. Rent Controller that acquisition by the wife of S-248, Panchsheel Park, the respondent/tenant had no legal right to occupy the said house, Addl. Rent Controller relied his judgment on account of B. R. Mehta Vs. Smt. Atma Devi and Ors. (33) 1987 DLT 154. Rent Control Tribunal also fell in the same error applying wrongly the ratio of B. R. Mehta s case (s