RC.No.27 of 2017
IN THE COURT OF THE PRINCIPAL RENT CONTROLLER: HYDERABAD.
Present: Smt. G. Himabindhu, XI Junior Civil Judge, City Civil Court, Secunderabad. FAC Principal Rent Controller, City Small Causes Court,Hyderabad
Dated this the 26th day of July, 2024.
R.C.No. 27 of 2017
Between: Purushotham Das Soni, S/o. Late Suraj Karan Soni, R/o.H.No. 4-7-290, Esamia Bazar, Hyderabad.
Died per Lrs.
2. Mukund Das Soni, S/o. Late Purushotham Das Soni, Aged about 54 years, Occ: Business, R/o. 16-2-147/K/1, New Malakpet, Hyderabad.
3. Smt. Kamala Soni, W/o. Late Ghanshyam Das Soni, D/o. Late Purushotham Das Soni, Aged about 55 years, Occ: Household, R/o. 16-2-147/K/1, New Malakpet, Hyderabad.
4. Smt. Priyanka Mundhada, W/o. Bhushan, D/o. Late Ghanshyam Das Soni, R/o. Plot No. 305, Flat No.201, Vakratund Apartments, Chikali Layout, Near East RTO Office, Nagpur.
5. Kum. Payal Soni, D/o. Late Ghanshyam Das Soni, Aged about 27 years, Occ: Household, 2
RC.No.27 of 2017
R/o. 16-2-147/K/1, New Malakpet, Hyderabad.
6. Smt. Nirmala Phafat, W/o. Prakash Chand Phafat, D/o. Late Purushotham Das Soni, Aged about 56 years, Occ: Household, R/o. 4-5-587/3, Kutbiguda, Opp: Lane of Durga Diary Products, Near Badi Chowdi, Hyderabad.
7. Smt. Meena Damani, W/o. Shyam Kumar Damani, D/o. Late Purushotham Das Soni Aged about 50 years, Occ: Household, R/o. Flat No.5, Indumati Apartments, 2nd floor Opp: Gokhale School, Shimpoli Road, Borivali West, Mumbai.
.. Petitioners
A n d
Anand Malpani, S/o. Hari Prasad Malpani, Shop No.9, in premises bearing No.15-2-612, Soni Bhavan Maharajgunj, Hyderabad.
.. Respondent
This petition is coming for final hearing before me in the presence of Sri Mirza Suleman Baig, Advocate for petitioner and of Sri K. Srinivas Reddy, Advocate for respondent and the matter having stood over for consideration till this day, the court passed the following:
O R D E R
1.This petition is filed by the petitioner under Section 10(2)(i) & 10(iii)(a) of Telangana Buildings (Lease, Rent and Eviction) Control Act seeking eviction of the respondent in respect of shop No.9 in premises 3
RC.No.27 of 2017
No.15-2-601 to 606, 612/1 to 4, 614 and 614/A, comprising of cellar,
Ground + 3 floors, consisting of shops situated at Maharajgunj, Hyderabad (hereinafter it is referred as petition schedule property).
2.The brief averments of the petition are as follows:-
(i)The petitioners contended that they are the owners of the petition schedule premises, which was obtained from Sri Satyanarayan Soni through registered gift settlement deed on 28.10.2009 and the petition schedule property is called as “Soni Bhavan”. The petitioner submitted that after the execution of gift settlement deed the petitioner is enjoying the property as absolute owner by receiving rents from the tenants, as
Satyanarayana Soni attorned tenancy of respondent in favour of petitioners through notice on 27.10.2010 and at that time the rent of said mulgi was
Rs.2,200/- per month and the respondent is in occupation of shop No.9 of the said premises.
(ii)The petitioner further submitted that at the time of inception of tenancy the rent was Rs.2,200/- and that both parties agreed for enhancement of rent @ 10% per annum and the respondent tendered the rents till September 2010 and since then the respondent was in default of 4
RC.No.27 of 2017
payment of rents, for which the petitioner issued notice for payment of arrears of rent on 03.03.2010. The respondent has defaulted for an amount of Rs.1,54,500/- as on date of notice dt: 01.06.2016 and since service of notice till filing of the present petition, the respondent is further due of Rs.3,210 x 3 months= Rs.9,630/- and the total amount of
Rs.1,90,320/- is due from 01.10.2010 to 30.08.2016.
(iii)The petitioner further submitted that he issued legal notice dt:
01.06.2016 demanding respondent to vacate the petition schedule property by end of June 2016 and to pay the arrears of rent from 01.10.2010 to May 2016 but the respondent failed to do so, as such the petitioner filed the present petition. The petitioner further submitted that the tenancy was oral and that petition schedule property is aged more than 15 years and that the rate of rent is Rs.3,210/- and that it is situated at Maharaj Gunj which is within the jurisdiction therefore requests the court to allow the petition. Hence, this petition.
3.The averments of the counter are as follows:-
(i) The respondent contended that he is not aware of the ownership 5
RC.No.27 of 2017
through registered gift settlement deed dt: 28.10.2009 from Satyanarayan
Soni and that the petitioner is enjoying the right over the petition schedule property as absolute owner by receiving rents from the tenants and that
Satyanarayan Soni attorned the tenancy of respondent in favour of petitioners on 27.10.2010 by issuing notice directing to pay rents to the petitioners. The respondent submitted that he is not aware of the rate of rent @ Rs.2,200/- for the said mulgi and respondent is in occupation of shop No.9 , premises No.15-2-612 situated at Maharajgunj, Hyderabad and submitted that the respondent is not the tenant of the petition schedule property at any point of time but originally Satyanarayan Soni S/o. Late
Suraj Karan Soni inducted the father of the respondent by name Hari
Prasad Malpani as tenant on monthly rent of Rs.2,500/- per month through oral tenancy which was exclusive of electricity charges as such there is no jural relationship between the petitioners and respondent as landlord and tenant.
(ii) The respondent submitted that he is not aware that the rate of rent @
Rs.2,200/- and enhancement @ 10% per annum and that the question of tendering the rents up to September 2010 does not arise as the respondent 6
RC.No.27 of 2017
is not the tenant of the said premises and denied that he has to pay arrears of amount of Rs.1,90,320/- from 01.10.2010 to 30.08.2016. The respondent submits that when the respondent is not the statutory tenant of the petitioner in respect of petition schedule property the question of chronic default, and vacating the and handover of petition schedule property does not arise. The respondent further denied the issuance of legal notice to respondent by petitioners on 01.06.2016 demanding the respondent to vacate and handover the petition schedule property by end of June 2016 and payment of arrears from 01.10.2010 to May 2016.
(iii)The respondent further submitted that his father was the tenant of petition schedule property who used to pay the rents regularly and was not a defaulter in payment of rents. The respondent further submitted that one person by name Basanth Kumar Soni stated to be secretary of
Satyanarayana Soni Seva Samsthan has filed a eviction petition vide
RC.No.65 of 2011 on the file of I Additional Rent Controller, CSCC,
Hyderabad and also IA.10 of 2014 for deposit of rent which are still pending.
7
RC.No.27 of 2017
(iv) The respondent further submitted that on one hand the present eviction petition filed by petitioner Purushotham Das Soni and another hand Basanth Kumar Soni stated to be secretary of Satyanarayan Soni
Seva Samasthan Trust already filed eviction on the file of I Additional Rent
Controller, Hyderabad and third person by name Kamal Kishore Soni, S/o.
Hanumandas Soni has issued notice dt: 11.01.2018 to the father of the respondent that he is the absolute owner by virtue of will deed dt:
26.12.1994 executed by Smt. Bhawari Devi Soni, W/o. Satyanarayana
Soni and stated that the petition schedule property is in dispute in respect of ownership between 1. Basanth Kumar Soni 2. Purushotham Das Soni and 3. Kamal Kishore Soni and prays the court to dismiss the petition.
4.During the pendency of petition, the petitioner died and the legal representatives of the petitioner i.e., petitioners No.2 to 7 were brought on record as per the orders passed in I.A.No.34 of 2020 dt.20.4.2022 and amendment carried out and neat copy of petition filed.
5.During the course of enquiry, the petitioner No.2 is examined as PW.1 and got marked Ex.P1 to Ex.P6 . On the other hand, though 8
RC.No.27 of 2017
sufficient time is granted, the respondent failed to adduce any evidence on his behalf, as such this court closed the evidence on behalf of the respondent.
6.Heard the learned counsel for petitioners and no representation by learned respondent advocate to argue the matter, hence treated as heard for the respondent.
7.Ex.P1 is the office copy of legal notice dt: 01.06.2016. Ex.P2 is the postal Acknowledgment with envelope dt: 04.06.2016. Ex.P3 is the
Certified copy of Gift settlement deed dt: 20.10.2009. Ex.P4 is the certified copy of order in RC.65 of 2011 dt: 02.11.2022 on the file of III Additional
Rent Controller, CSCC, Hyderabad. Ex.P5 is the letter of attornment along with postal receipt dt: 01.02.2010. Ex.P6: is the office copy of legal notice
dt: 03.03.2010.
8. To consider the rival contentions of both the parties, the following points that arose for consideration are:
(1) Whether the petitioners have shown sufficient ground for the relief of eviction of respondent from the petition 9
RC.No.27 of 2017
schedule property?
2.To what relief?
P O I N T No.1:-
9. The case of the petitioners is that they have filed the present petition for eviction of the respondent from the petition schedule property and during the pendency of the case, the petitioner No.1 died and legal heirs were brought on record vide I.A.No.34 of 2020 dt.20.4.2022 i.e., petitioners
No.2 to 7 and the contention of the petitioners is that they are the absolute owners of the petition schedule property through petitioner No.1 and that the property was obtained from Sri Satyanarayana Soni through registered gift settlement deed on 28.10.2009 and the petition schedule property is called as Soni Bhavan and the same was informed to the respondent through notice on 27.10.2010 and the tenancy was attorned with the monthly rent of Rs.2200/- per month of the said mulgi i.e., shop No.9 of the petition schedule property. The petitioners further contended that both parties have agreed to enhance the rent @ 10% per annum and the respondent has tendered the rents till September 2010 and defaulted from then due to which a notice was issued on 3.3.2010 and over all the defaulted period is from 1.10.2010 to 30.8.2016(Rs.3210 x 3 months = 10
RC.No.27 of 2017
Rs.9630/-) and the total amount is Rs.1,90,320/-. The petitioners further contended that they issued legal notice on 1.6.2016 demanding to vacate the property by the end of June 2016 and pay the arrears of rent from 1.10.2010 to May 2016, but the respondent failed to do so.
10.The respondent through his counter contended that he is not aware of the ownership through the gift settlement deed of the petitioners herein and not aware of the attornement of tenancy in favour of the petitioners and he further denied that he is unaware of rate of rent and further denied that he is not tenant in the shop No.9 of the premises
NO.15-2-612 situated at Maharaj Gunj, Hyderabad and also denied about the enhancement of rent. He admitted that his father by name Hari
Prasad Malpani was the tenant with a monthly rent of Rs.2500/- on oral tenancy basis exclusive of electricity charges and originally Satyanarayana
Soni inducted respondent’s father as tenant over the shop No.9 of petition schedule property and as such there is no jural relationship between himself and the petitioners herein.
11
RC.No.27 of 2017
11.The respondent denied the averments of the petition stating that he is a defaulter of rents. He further contended that one person by name
Basant Kumar Soni has filed eviction petition vide RC No.65 of 2011 on the file of I Additional Rent Controller, Hyderabad and also I.A.NO.10 of 2014 for deposit of rents which is still pending and that one Purushotham
Das Soni and another filed eviction petition on the file of I Additional Rent
Controller, Hyderabad and one Kamal Kishore Soni has issued notice on 11.1.2018 to the father of the respondent stating that he is absolute owner of petition schedule property by virtue of Will Deed dt.26.12.1994 and therefore prayed to dismiss the petition as there is dispute in respect of ownership.
12.Upon careful perusal of the record, it is evident that the petitioner
No.2 is examined as PW.1 and got marked Ex.P1 to Ex.P6. Ex.P1 is the legal notice issued to the respondent by the petitioners herein (petitioner
No.1 died) about the arrears of rent and to vacate the premises i.e., shop
No.9 of the petition schedule property. Ex.P2 is the postal acknowledgment card. Ex.P3 gift settlement deed between Satyanarayana Soni and
Purushotham Das Soni which shows the schedule of property in Ex.P3 as 12
RC.No.27 of 2017
all that properties bearing municipal Nos.15-2-601 to 606, 15-2-612 and 15-2-2-613, total admeasuring 428.03 square meters, situated at
Maharajgunj, Hyderabad. Therefore the present petition schedule property falls under the properties of Ex.P3. Ex.P4 shows that the petitioner No.1’s brother has filed a suit against the father of the respondent herein for eviction in respect of shop No.10 in the petition schedule property, however the same was dismissed. Ex.P5 is the letter of attornment of tenancy to the respondent’s father by the said Satyanarayana Soni stating that he has gifted the property to the petitioner No.1 herein and informed to pay the rents to him directly w.e.f., November 2009.
13.During the course of his cross examination, the learned counsel for the respondent elicited that the father of the respondent expired two years ago and that he filed the present petition against the respondent for eviction of shop No.9. PW.1 admitted that the tenancy was oral which was even admitted by the respondent. He further stated that there is no written agreement between them and the present respondent and it was an oral agreement and therefore it is evident that after the demise of respondent’s father, the respondent has taken over shop No.9.
13
RC.No.27 of 2017
Though the respondent has not admitted any jural relationship, he himself admitted in his counter stating that his father is the tenant of the shop
No.9 in the petition schedule property and nowhere in the counter he has disclosed by stating that he has been in possession of shop No.9 after the demise of his father. During the course of cross examination, though it was elicited that father of respondent was died, the learned counsel for the respondent has not posed a suggestion that the father of respondent did not die and even the respondent failed to file any evidence to prove his contention which he has mentioned in the counter. Therefore, the evidence led by the petitioners orally and through documents vide Ex.P1 to
Ex.P6 are impressing upon the court in their favour.
14. Further the respondent did not choose to adduce any evidence, hence an adverse inference can be drawn against him for which, this court relied on a decision:
In Ishwar Bhai C Patel Vs. Harihar Behra and another reported in 1999(2) ALD( SCSN) 19 the Hon'ble Apex Court held that 14
RC.No.27 of 2017
“Having not entered into the witness box and having not presented himself
for cross examination, an adverse presumption has to be drawn against him
on basis of principles contained in illustration(g) of section 114 appellant
had abstained from the witness box and had not made any statement on
oath in support of his pleading set out in the written statement and an
adverse inference has therefore, to be drawn against him”
15.On the other hand, the petitioners adduced documentary evidence under Ex.P1 to Ex.P6 by establishing that the respondent is the tenant in respect of petition schedule property and the respondent failed to adduce any evidence on his behalf. From the said unrebutted testimony on record, the petitioners established that they are the owners of the petition schedule premises and their evidence also supported with the documentary evidence under Ex.P1 to Ex.P6 and further the respondent failed to adduce any oral or documentary evidence to discard the evidence on behalf of the petitioners, as such the petitioners are able to establish their case. Thus, the point is answered accordingly in favour of the petitioners.
P O I N T No.2:-
16.In view of findings in point No.1, the petitioners are entitled for eviction of the respondent in respect of petition schedule premises.
15
RC.No.27 of 2017
17.In the result, the petition is allowed without costs and the respondent is directed to vacate the petition schedule property and hand over the physical and vacant possession of the petition schedule property to the petitioners within two months from the date of the order. In case of failure, the petitioners are at liberty to evict the respondent by following under due process of law.
Dictated to Stenographer, transcribed by her, corrected and
pronounced by me in open court on this the 26th day of July, 2024.
FAC PRINCIPAL RENT CONTROLLER:
HYDERABAD.
Appendix of Evidence
Witnesses examined for
Petitioners Respondent:
PW.1: Mukund Das Soni NIL
Documents marked for
Petitioner:-
Ex.P1: Office copy of legal notice dt: 01.06.2016.
Ex.P2: Postal Acknowledgment with envelop dt: 04.06.2016.
Ex.P3: Certified copy of Gift settlement deed dt: 20.10.2009.
Ex.P4: Certified copy of order in RC.65 of 2011 dt: 02.11.2022 on the file of III Additional Rent Controller, CSCC, Hyderabad.
16
RC.No.27 of 2017
Ex.P5: Letter of attornment along with postal receipt dt: 01.02.2010.
Ex.P6: Office copy of legal notice dt: 03.03.2010.
For Respondent:
NIL
FAC PRINCIPAL RENT CONTROLLER:
HYDERABAD.
SCHEDULE OF THE PROPERTY
All that shop No.9 in premises No.15-2-601 to 606, 612/1 to 4, 614 and 614/A, comprising of Cellar , Ground + 3 floors, consisting of shops situated at Maharajgunj, Hyderabad and bounded by:
North: Nala South: Common passage East: Shop No.10. West: Temple.
FAC PRINCIPAL RENT CONTROLLER:
HYDERABAD.
17
RC.No.27 of 2017
18
RC.No.27 of 2017
19
RC.No.27 of 2017
20
RC.No.27 of 2017