' This is an Second Appeal filed by the tenant. Appellants are the legal heirs of one Munna son of Abdul Samand and two respondents are the legal heirs of one Mustufa Khan. The dispute relates to the ground floor of a building in Hyderabad. Munna, occupant of this evacuee property had filed his N.C.H. Form and had entered into an agreement of association with Mustufa, a claimant. Munna surrendered his rights in favour of Mustufa Khan and the property in question ground floor of the building was transferred to Mustufa Khan by the Settlement Department. Previously a Rent case No,592 of 1963 was filed by Mustufa Khan against Munna. In this application it was pleaded by Mustufa Khan that he had served Munna with a notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. However, Munna denied that any such notice had been served. However, by consent of the parties a tentative rent order was passed in the previous ejectment application of 1963 and apparently the preliminary objection of non-service of notice under Section 30 was given up by Munna. The previous ejectment application was allowed and thereafter the appeal filed by Munna was also dismissed. The transferee of the first floor of the building, one Mst. Batool then applied to the Settlement Department for transfer of the ground floor i.e, premises in dispute, to her and the Settlement Commissioner granted the application of Mst.
Batool and ordered transfer of ground floor to her and the transfer in favour of Mustufa Khan stood cancelled. Mustufa Khan filed a Writ Petition No,319 of 1966 in the High Court in which Munna was also made a respondent. By judgment dated 21-11-1972, the said Writ Petition was allowed and the transfer in favour of Mst. Batool Begum by the Settlement Department was cancelled and the transfer of Mustufa Khan stood restored in respect of the ground floor. It may be mentioned here that Mustufa Khan died during the pendency of the said Writ Petition and the present respondents were brought on record. It is the case of the appellants that during the period the transfer of the ground floor in favour of Mustufa Khan stood cancelled, the premises were demolished by Hyderabad Municipal Corporation as the same were in dilapidated condition and Munna rebuilt the premises and spent an amount of Rs,1,200 in connection therewith and that by an oral hgreement with Mustufa Khan it was agreed that in case the transfer of Mustufa Khan was restored in the writ petition, the amount of Rs,1,200 spent by Munna on reconstruction of the premises would be adjusted against the rent. It has also been observed that Mustufa Khan, diefi during the pendency of Writ Petition No,319/66, After this writ petitiondmas allowed on 12-11-1,972 and the transfer of Mustufa Khan was restored the respondent served a notice on Munna for payment of rent. This notice is dated 27-1-1973 (Exh.24-D). A reply dated 30-1-1973 (Exh.24-G) was given by Munna in which he stated that an oral agreement had been reached with Mustufa Khan and the amount of Rs,1,200 spent on construction was to be adjusted against the rent. Rent was not paid and in the circumstances Rent Application No,226/73 was filed before the learned Rent Controller, Hyderabad by the respondents for the eviction of Munna on the grounds of default, personal requirement and damage to property. After receiving evidence adduced by the parties, the learned Rent Controller passed order dated 25-2-1976 granting the ejectment application filed by the respondent on the grounds of default and personal requirement. The ground relating to damage to property was not accepted by the Rent Controller. Munna filed First Appeal No,90/76 before, the learned District Judge, Hyderabad but the same was dismissed by an order dated 26- 10-1977. The finding of the Rent Controller on the ground of default was maintained but on the question of personal requirement the finding of the learned District Judge contained in Para. 16 of his judgment is as follows:- "The respondents have also pressed the ground of their personal bona fide use but evidence on this point does not appear to be conclusive. Even if this point is answered in favour of the appellant, still there is clear default on the part of the appellant, and, therefore, he is liable to be ejected".
' Being aggrieved, the present Second Appeal was filed by Munna in this Court on 1-10-1977: During the pendency of this appeal, Munna died on 6-8-1981 and his legal representatives have been brought on record as appellants. I have heard Mr. Arshad Noor Khan, learned counsel for the appellants and Mr. Rafiq Ahmed, learned counsel for the respondents.
2. In support of the present Second Appeal against the concurrent finding of the learned Rent Controller and the First Appellate Authority, two contentions have been raised by the learned counsel for the appellants. Firstly it was contended that notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 had not been given by Mustufa Khan or by the respondents to Munna and as such the ejectment application was not maintainable. I find no substance in this contention. It has also been noted that in the previous 'Ejectment Application No,592/63 a plea had been raised by Munna that notice under section 30 had not been served, but apparently this plea was not pressed and the Rent Controller was not asked to decide this preliminary objection but was asked to pass a tentative rent order which was passed by consent.
In these circumstances Munna and later on the appellants are estopped from raising this question ' The other contention of the learned counsel for the appellants in support of the present Second Appeal is that Munna was entitled to adjustment of an amount of Rs,1,200 spent on reconstruction of the premises. On a question from, me, learned counsel for the appellants stated that in case Munna was entitled to adjustment of this amount of Rs,1,200, he could not be treated as a defaulter, but in case he was not entitled to adjustment, there would be a default for which Munna was liable to be ejected. As observed earlier, the entire case of the appellants about the dispute of Rs,1,200 is based on an oral agreement between Munna and Mustufa Khan. This is a question of fact. There is a concurrent finding of fact on this point by the two Courts below and as such normally is not open to the appellants to challenge this concurrent finding of fact in this Second Appeal. Even otherwise I find that there is no cogent evidence on record to establish that there was an oral agreement between Mustufa and Munna to the effect that a sum of Rs,1,200 had been spent on reconstruction of the premises and then there was an agreement that this amount was liable to adjustment against the rent. Admittedly there is no documentary evidence about this agreement. Then there are certain circumstances which go against the existence of such an agreement. Firstly this agreement is alleged to have taken place between Munna and Mustufa Khan at a time when the transfer in favour of Mustufa Khan was not in existence as the same had been cancelled by the Settlement Commissioner and a writ petition challenging the cancellation by the Settlement Department was pending in the High Court. Secondly the version of Munna that the premises had been demolished by the Hyderabad Municipal Corporation as the same had become dilapidated is not satisfactorily established by the evidence. No order of the Hyderabad Municipal Corporation has been filed to show that any decision for demolition of the premises was taken by the Corporation and then the premises in dispute are located on the ground floor. If the ground floor had been demolished, then normally the structure above i.e., the first floor and if any there were other upper floors also, these must have been demolished. There is neither any evidence on record nor is there any indication from any evidence, documentary or oral, that the first floor or upper floors of the building in question had also been demolished. In my view on the basis of the evidence on record a correct finding has been reached by the two lower Courts i.e., agreement about adjustment of the amount of Rs,1,200 had not been proved. No ground has been made out for interference with the concurrent finding of the learned Rent Controller and the First Appellate Authority.
3. As a result Second Appeal No,29 of 1983 is dismissed but with no order as to costs. However, with the consent of Mr. Rafiq Ahmed, learned counsel for the respondents, time is granted till 30-9-1984 to the appellants to vacate the premises subject to payment of rent.