This second appeal is directed against the orders dated 22-7-1975 and 29-10-1977 passed in Rent Case No. 38/75 and Civil Appeal No. 163/75 respectively, by the learned Civil Judge and Rent Controller, Hyderabad, and the learned District Judge. Hyderabad respectively. The brief facts leading to the filing of the above appeal are that the building in question having two storeys was transferred to late Jusab Dada through a P. T. O. Dated 16-11-1959, which was followed by a P. T. D.
Dated 28-2-1964. It seems that late Jusab Dada served a notice dated 31-10-1962 on the respondent under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which was followed by another notice dated 25-3-1963 under the same section. It further seems that late Jusab Dada filed ejectment case on the ground of default, which was compromised some time in 1963 and under the above compromise respondent agreed to pay Rs.
30 per month as rent. It also seems that late Jusab Dada sold the upper floor to his brother-in-law Abdul Sattar on 4-12-1964. It further seems that in December, 1969 late Jusab Dada demanded rent at the rate of Rs. 60 per month on the ground that the property was reassessed by the Excise and Taxation Department. In the above notice (Exh. 29) the respondent was called upon to vacate the premises on the ground of personal requirement. The above notice was replied to by the respondent (Exh. 34). It also seems that on 2-3-1970 late Jusab Dada filed the aforesaid rent case on the ground of default and personal requirement it further seems that on 10-8-1970 late Jusab Dada expired and, thereafter the present appellants were brought on record being legal heirs of the deceased Jusab Dada. The above application was resisted by the respondent and inter alia it was pleaded that the application was mala fide and that the sole intention was to enhance the rent. On the basis of the above pleadings certain issues were framed. The learned Rent Controller after recording the evidence and hearing the parties by his aforesaid order dated 22-7-1975 dismissed the application on both the grounds. The appellants being aggriev--ed by the above order filed the aforesaid Civil appeal, which was also dismissed by the aforesaid order dated 29- 10-1977. The appellants being aggrieved by the above orders have filed the present second appeal.
(2) (a) In support of the above appeal Mr. S. A. Jamali, learned counsel for the appellants has urged the following points;---
(i) That the finding on the question of default is not sustainable on the basis of evidence on record.
(ii) That both the Courts below misdirected themselves on the question of personal requirement and have net taken into consideration the admitted facts.
(b) On the other hand Mr. Abdul Rahim Kazi, learned counsel for the respondent has contended that both the findings of the two Courts below are in accordance with the evidence on record and that this Court will not interfere with the concurrent findings of the two Courts unless the same are to be found perverse or contrary to record.
3. I have perused the orders under appeal as well as the evidence on record and I am inclined to hold that the finding on the question of default is sustainable in law. It is an admitted position that by a compromise in the first rent case of 1963, the respondent agreed to pay Rs.
30. It is further admitted position that at no point of time the respondent refused to pay rent at the above agreed rate. However, late Jusab Dada through his notice of December, 1969 demanded the rent at the rate of Rs. 60 per month, on the basis of the alleged fresh assessment. The assessment order relied upon by the appellant is Exh. 28, which indicates that in 1969-70 3 rooms were assessed at Rs. 60 per annum. Be that as it may, the appellant or their predecessor in-interest late Jusab Dada were not entitled to make the respondent to pa rent at the rate of Rs. 50 or Rs. 60 per month without obtaining the appro--priate order from a competent Court. The rent of Rs. 30 was fixed by the consent of the parties in a rent case by the Rent Controller, and therefore, it could not have been revised without an appropriate order. It has also come on record that late Jusab Dada refused to accept the rent at the rate of Rs. 30 p. m. In this view of the matter the finding of the two Courts on the question of default is in accordance with law and is in consonance with the evidence on record.
4. Reverting to the second ground, namely, the personal requirement, I am inclined to hold that both the Courts below have misdirected themselves and recorded finding contrary to the evidence on record. In holding that the personal requirement was not bona fide but was prompted with the object to enhance the rent. It has been proved that appellant No. 1 is married and has one were and 4 children, whereas the appellant No. 3 is a widow. All are putting up in one room on the first floor.
However, the learned counsel for the respondent has submitted that the mala fide of the appellants stand proved by the following facts;
(i) Demand of rent at the rate of Rs. 60 in place of Rs. 30.
(ii) That the entire first floor was sold by late Jusab Dada in 1964 to his brother-in-law Abdul Sattar.
(i.e) The false averment that Abdul Sattar was pressing for the vacation of one room on the first floor in possession of the appellants. I am unable to agree with the above contention.
The fact that a landlord demands enhanced rent than the agreed rent along--with his demand for vacation of the tenement on the ground of his personal requirement may be a relevant factor for consideration, but it cannot be conclusive factor to disprove the personal requirement. If a landlord is able to bring on record sufficient facts, from which his personal bona fide require--ment stand proved, he cannot be declined relief on the ground that he had demanded enhanced rent. As pointed out hereinabove that the material fact namely, that 7 persons are living in one room on the first floor stand proved. The above fact has not been belied by the demand of enhanced rent coupled with the demand of personal requirements as the demand of enhancement of rent is for the period till the vacation of the tenement by the respondent on the ground of the appellants' personal requirement nor the above proved fact is belied by the factum that the first floor was sold in 1964 by late Jusab Dada to his brother-in-law or by the fact that no independent evidence was brought on record to prove that Abdul Sattar was pressing for vacation of the one room on the first floor in possession of the appellants. It may be observed that even if late Jusab Dada would not have sold the first floor, he could have maintained an ejectment application against the respondent on the ground of his personal requirement as admittedly he alongwith his family was putting up in one room only. It is not the case of the respondent that because of the above sale late Jusab Dada had vacated any room which was in his possession.On the contrary the respondent in his cross-examination admitted the fact that on the first floor there are 2 tenants, namely, Sidiq and Mst. Zulekha against whom Abdul Sattar had filed ejectment cases. Appellant No. 1's statement that Abdul Sattar was pressing for vacation of one room in posses--sion of the appellants stand corroborated by the admission of the respondent that said Abdul Sattar had already filed ejectment cases against the other two tenants on the first floor.
5. For the aforesaid reasons, I allow the above appeal and set aside the two orders under appeal on the ground of personal requirement. I direct the respondent to hand over the vacant possession of the tenement to the appel--lants within four months from today on the condition that the respondent shall continue to deposit rent in terms of the R-.Nt Controller's Order. It is also clarified that in case the respondent fails to deposit the rent of any month, the appellant shall be entitled to file an execution application before the expiry of the above period. Furthermore, in case the respondent fails to vacate the tenement on the expiry of above 4 months period, the Rent Controller shall issue writ of ejectment without further notice to the respondent.
There will be no order as to costs.