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Second Appeal No. 462 of 1980, decided on 16th August, 1983.

---S. 13 Ejectment Ground of default Landlord claiming rent from February, 1975 to June, 1975 Lease Agreement between parties commencing from September, 1974 but signed in April, 1975 Not mentioning arrears of rent Tenant relying on such agreement and contending that there was no default as arrears of rent not mentioned in lease deed Held, not necessary that lease agreement should contain amount of arrears which may have been due at time of its execution In absence of any evidence that parties had agreed that arrears if any shall be entered in lease agreement, no presumption, held, can be drawn that there were no arrears--Default proved in circumstances.

--Ss. 13 & 15 Second appeal Question of fact Issue on default purely question of fact Concurrent finding on such issue Held : Cannot be challenged in Second Appeal on ground of misapprecia lion of evidence. [Evidence].

P L D 1955 F C 38 ref.

Abrar Hussain for Appellant.

S. Inayat Ali for Respondent.

Date of hearing: 10th August, 1983.

The appellant is a tenant of the respondent in respect of shop bearing No. C. S. E./2313, Shabi Bazar, Hyderabad. The respondent filed eject ment application alleging that shop was rented out at the rate of Rs. 400 per month from the month of September, 1974. The appellant failed to pay the rent from February, 1975. It was also alleged that the appellant had made alterations without the permission of the respondent by opening a door across the wall connecting the disputed shop with the adjacent shop which is not the property of the respondent. The appel lant has denied that any default has been committed. It was pleaded that the tenancy commenced from April, 1975 and the rent haS been paid upto date. The allegations relating to material alternations were also denied. The learned Controller allowed the respondent's application on both the grounds. This was challenged in appeal which was dismiss ed by the learned District Judge, Hyderabad. The learned appellate Court held that default has been committed by the appellant. The finding of the Controller relating to issue on unauthorised alteration was set aside.

Mr. Abrar Hassan, the learned counsel for the appellant has contend ed that the default has not been proved. In support of this contention the learned counsel has referred to a lease agreement (Exh. 19). Admit tedly it has been signed by the parties in April, 1975. According to this agreement, the tenancy commences from 1st September, 1974. The learned counsel has contended that the respondent has claimed arrears of rent from February, 1975 to June, 1975 and if it was correct then the lease agreement which was executed in April, 1975, would have contained that arrears upto the month of March, 1975 have not been paid. Accord ing to the learned counsel as the arrears have not been mentioned in the lease agreement, it should be presumed that there were no arrears upto April, 1975. It is not necessary that the lease agreement should have contained the amount of arrears which may have been due at the time of its execution. It is not uncommon that although the tenancy commences from an earlier date the agreement in writing is made at a later date specifying that the tenancy is with retrospective effect. In the absence of any evidence that the parties had agreed that the arrears if any, shall be entered in the lease agreement, no presumption can be drawn as contended by the learned counsel.

The learned counsel for the appellant further contended that in fact the tenancy had commenced on 1st April, 1975 and the rent was paid to the respondent regularly. He further contended that the rent for the month of June was paid to the respondent in the same month but the appellant passed a receipt fraudulently mentioning it as rent for January, 1975 instead of June, 1975. This receipt is Exh. 1/2 which was issued on 7th June, 1975. Except the allegation of the appellant there is no proof to establish that the rent was paid in respect of June, 1975. The learned counsel has contended that the appellant had paid rent for two months in advance in April, 1975 and thereafter in June, 1975 he paid the rent in the month of June, 1975. It is not denied that the receipt had not been received by the respondent. If it is so then how is it possible that no objection was raised by the appellant that an incorrect receipt had been passed to her. The respondent had issued two notices to the appellant one is dated 25th April, 1975, in which it was stated that the tenancy had commenced from September, 1974 and rent has been paid only up to the month of December. The appellant was called upon to pay the rent for the months of December, 1974 to April, 1975. This notice had returned back unserved with the endorsement that the appellant had gone out. Another notice Exh. 21 was sent which was also refused. The learned counsel has contended that the respondent had managed the endorsement by the postal authorities and is taking advantage of it. The allegation does not stand proved from the record.

The determination of the issue on default is purely a question of fact on which both the Courts have given concurrent finding. In this regard Mr. Syed Inayat Ali, the learned counsel for the respondent has referred P L D 1955 F C 38. In view of the fact that the Courts below on appre-B ciation of evidence have come to the conclusion that the appellant has defaulted in the payment of rent from February, 1975 to June, 1975 such finding cannot be challenged on the ground of misappreciation of evidence. The appeal is, therefore, dismissed. The appellant shall vacate and hand over vacant possession of the disputed premises to the respon dent within 6 months.

A. B. Appeal dismissed.

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