The appellant above-named, being aggrieved by order dated 22nd March, 1977, of learned District Judge, Hyderabad, by which appellant's Appeal No. 258/75 was dismissed and the order dated 29th September, 1975 of 1st Extra Jt. Civil Judge , and Rent Controller, Hyderabad, by which he dismissed appellant's ejectment Application No. 126/72 was upheld, has preferred this second appeal, on the following facts and grounds :-
2. The appellant is the owner of the property bearing No. B/1394, Shahi Bazar, Hyderabad, vide sale- deed No. 1904, dated 24-11-1971. The shop in question was let out by the late husband of the appellant to respondent at the rate of Ids. 300 per month, and agreement to be renewed every' year. It is contended by the appellant, that after expiry of her husband the property was transferred to her name (appellant), who served notice to respondent through her Advocate, dated'3-1.1972, informed him for payment of rent to her at the rate of Rs. 300, per month alongwith the arrears and for execution of fresh agreement. This notice was replied by the respondent, who admitted the tenancy of the appellant and had further informed in the notice, that he had paid the rent at the rate of Rs. 300, per month up to November, 1971 to the owner Mr. Shamsuddin. It is further contended by the appellant that there--after the respondent never appeared to execute the rent- deed and started send--ing money-orders very late, in spite of the fact, that as per previous agreement the respondent was liable to make the payment of rent in advance, for every Calendar month. The respondent therefore failed to pay the rent for the months of February, March, April and May, 1972 and became a wilful defaulter.
3. It was further contended by the appellant, that she served notice to respondent to vacate the premises, but the respondent sent evasive reply. It is further contended by the appellant that she has got two sons who are young and are without job, they are not in a position to get service, they want to do their own business, the appellant being widow having no other source of income requires the premises in question for her personal bona fide use and she wants to establish her own business, through her sons. It was further contended by the appellant, that the respondent has materially damaged the property and fixtures by making alterations and changes accord--ing to his own wish and desires and thus diminished the value of the property.
4. The appellant had therefore prayed, that Court be pleased to order the respondent to hand over the vacant possession of the premises in question to the appellant. The appellant has further prayed, that the respondent be ordered to deposit arrears of rent from February, 1972 till this date at the rate of Rs. 300, per month and for awarding of the costs of the Rent Application.
5. The respondent contested the matter and had filed written objections. The respondent in his written objection has admitted the tenancy of the appellant and the rate of Rent and further asserted that the appellant has purchased the premises from her husband Shamsuddin on 18-11- 1971, as she had informed him (respondent) by her notice dated 3-1-1972 received by the respondent on - 5-1-1972. The respondent further contended that deceased Shamsuddin took Rs.
6,000, from the respondent as deposit, to be refundable to the respondent at the time of handing over the possession of premises to the landlord, such receipt of Rs. 6,000, was issued by the deceased, and such rent note was also executed, wherein it was agreed, that the respondent will be liable to ejectment, if he failed to pay the rent of two months continuously. It is contended, by 'the respondent, that he made regular payment of rent to deceased Shamsuddin upto November, 1971 and on 5-1-1972 he (respondent) received a notice dated 3-1-1972 from the appellant, that she had purchased the aforesaid premises and the rent should be paid to her. On 6-1-1972 the respondent sent a reply to the appellant for sending the future rents to her and that he (respondent) had already paid rent upto November, 1971. The respondent also showed his willingness to execute a similar Rent Note and the fact of his deposit of Rs: 6,000, being binding on her. It is further contended by the respondent, that he is in possession of the rent receipts issued by the Late Shamsuddin upto November, 1971 and deceased expired in middle of December, 1971. With regard to non-execution of Rent, Deed, it is contended by the respondent, that the appellant has avoided exaction of Rent Deed. The respondent also denied sending the Money Orders late, on the ground, that there was no question of advance payment. The respondent mentioned the Schedule of money orders sent to the appellant as under :-
(a) Money order of Rs. 300, for December, 1971 sent on 25-1-1972 the same was received by the appellant.
(b) Money order of Rs. 300, for January; 1972 sent on 7-2-1972 the same was received by appellant.
(c) Money order of Rs. 300, for February, 1972 sent on 20-3-1972 which. Was received by the appellant.
(d) Money order of R s. 300, for month of March, 1972 sent on 6-4-1972 the same was received by the appellant.
(e) Money order of Rs. 300, for the month of April, 1972 sent on 31-5-1972 which was refused by the appellant.
(f) Money order of Rs. 90?, for the month of April, May and June, 1972 sent on 26-6-1972 and the same was refused by the appellant.
6. It was further contended by the respondent, that even the notice dated 16-5-1972 sent by the appellant shows, that the appellant has received the rent upto March, 1972, hence the actual cause of the application was to get enhanced rent, at the rate of Rs. 400, per month and also enhanced deposit and due to this reason the draft of Rent Note prepared on 22-1-1972 was not signed by her.
The respondent also denied the requirement of the appellant for premises in question for her sons.
The respondent further asserted, that the two sons of the appellant are serving in Bank as Clerks and the appellant has falsely tried to create this ground, as she wants to enhance the rent to Rs.
400. The respondent also denied - to have caused any damage to the premises in dispute or made any alteration and due to this the value of the property has been diminished. The respondent had prayed for dismissal of the application.
7. On pleadings of the parties the following issues were framed :-
(1) Whether the opponent/respondent is a wilful defaulter?
(2) Whether the opponent/respondent has materially damaged the premises in question.
(3) Whether the applicant/appellant requires the premises in question for personal bona fide use ?
(4) What should the order be?
8. The learned Rent Controller, after taking into consideration the evidence adduced before him and after hearing the learned Advocates of the parties dismissed the appellant's ejectment application, on the grounds mentioned in its impugned order dated 29th September, 1975.
Appellant above-named being aggrieved by the said order dated 29th September, 1975, of the learned Rent Controller filed first appeal No. 258/75, in the court of District Judge, Hyderabad, which was also dismissed, vide judgment dated 22nd March, 1977; for the reasons given in the said impugned judgment and consequently the appellant above-named has filed the above second appeal, on the grounds mentioned in the memo of appeal.
9. The learned Advocate for the appellant has asserted before me, that both the learned lower Courts have misread the evidence on record and mis--appreciated the same and as such came to wrong conclusions and dismissed appellant's ejectment application for ejectment of the respondent. In support of his contentions the learned Advocate for the appellant relied upon cases reported in PLD 1982 Kar. 222, P L. D 1977 .Lah. 532. PLD 1977 Kar. 80 and PLD 1976 Kar. 233.
10. The learned Advocate for the respondent on the other hand sub--mitted, that concurrent finding of facts of both the learned lower Courts cannot be set aside in this second appeal, as learned Advocate for the appellant has failed to point out any misreading and/or mis- appreciation of the evidence, adduced before them. In support of this contention of his learned Advocate for the respondent relied on cases reported in 1980 SCMR 767, PLD 1981 Kar. 26, 1980. CLC 604 and 1978 SCMR 437 and NLR 1981 A C 9.
11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the evidence adduced before the learned Rent Controller and have carefully gone through the impugned order and judgment, of the learned lower Courts as well as through the authorities cited by both the learned Advocates for the parties.
12. The learned Advocate for the appellant has pressed the above appeal on the ground of personal and bona fide use only and not on any other ground, which were urged in the ejectment application in question. Appellant in support of her contention has examined P. Ws. Moinuddin, her special attorney, Habib and Samiuddin, whereas respondent had examined D. W. Syed Niaz Hussain, Mukaram Ali (himself) and Ghulam Hussain. I find, that the learned Rent Controller has fully appraised the evidence of these witnesses and has come to conclusion, that in Exh. 27, the first notice given by appellant on her becoming owner, no mention at all was made about her personal 9 and bona fide use. Beside this the eldest son of the appellant, namely Samiuddin is the step son of the appellant, whereas in ejectment application it was mentioned by appellant, that she requires the premises for use of her two younger sons, who were jobless. The learned Rent Controller has further appraised the evidence of D: W. Ghulam Hussain, who is known to both parties and was responsible for getting respondent inducted as tenant and has come to conclusion, that it is clear from the evidence of this witness, that appellant has only 5 sons, two of them are employed in Bank, one is teacher and remaining two are minor and studying and that Samiuddin was stepson and was separate from his father in business and used to stay C separately. It may further be noted, that this witness has further deposed in his examination-in-chief, that he had accompanied respondent to the house appellant for signing of new tenancy agreement, after the death of appellant's husband, when appellant refused to sign fresh agreement, unless respondent agreed to pay enhanced rent at the rate of Rs. 400, p.m. Instead of Rs. 300, p.m. In view of this it is clear from the evidence of this witness, that appellant wanted enhanced rent, which was not agreed by respondent and as such, as alleged by respondent, ejectment application in question was filed mala fide, in my opinion. The learned Rent Controller has also noted, that evidence of this witness was not at all shaken in his cross-examination. In view of all this evidence on record, the learned Rent Controller, after due appraisal of the evidence, rejected appellant's ejectment application for cogent reasons, as he came to conclusion, that appellant failed to establish, that she required the premises in question, for her personal and bona fide need, in good faith. The learned first appellate Court after perusal of the R & P of the learned Rent Controller and after hearing the learned Advocates of the parties, agreed with the conclusions arrived at lay the learned Rent Controller and dismissed the appellant's appeal. I see no reasons to disagree with the concurrent findings of fact, on this issue of both the learned lower Courts, in this second appeal, in view of the law laid down by various High Courts and Hon'ble Supreme Court in this connection. In my opinion, authorities cited by the learned Advocate for the respondent fully support his contentions, whereas authorities cited by the learned Advocate for the appellant are based on different facts and as such are of no help to the appellant at all.
13. The learned Advocate for the appellant was unable to point out to me any misreading or mis- appreciation of evidence by both the learned lower courts and as such I see no reason to interfere with the concurrent finding of facts of both the learned lower Courts, in this second appeal, on the basis of authorities cited by the learned Advocate for the respondent, as I agree with the said authorities for the reasons given in them.
Therefore, I see no me dismissed. However, in view of would pass no orders as to cost.