Allowed

Khaja Naseeruddin, v. Syed Abdul Rab , Arshad Mehta

Telangana HC16 Sept 2022SA/103/2022

Case brief

AI extract

What is this about?

In a second appeal, the High Court of Telangana affirmed the trial court's decision in a landlord and tenant eviction suit. The court held that the appellant established a valid landlord and tenant relationship. It set aside the first appellate court's finding of no such relationship, reasoning that the defendant failed to produce evidence of a registered mortgage deed to substantiate his defence

What did the court decide?

First Appeal allowed; original judgment and decree confirmed; defendant directed to pay exemplary costs of Rs.25,000/-.

Khaja Naseeruddin, Vs Syed Abdul Rab… — Contract and Commercial Disputes | Telangana HC (2022)

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IN THE HIGH^{COURTFORTHE STATEOF TELANGANA} AT HYDERABAD

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FRIDAY,^{THE SIXTEENTH DAY OF SEPTEMBER} TWO THOUSAND^ANDTWENWTWO

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PRESENT

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THE HONOURABLE SRI JUSTICE^M.LAXMAN

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SECOND APPEAL NO: 103 OF²⁰²²

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Appeal under section 1OO of C-P.C against^{the Judgmentand Decreedated} 25l1\l212'l made in A.S,No.212 ot²⁰¹⁹ on^{the file of the Court of the lX Addl Chief} Judge, City Civil Court, Hyderabad.^{Preferred againstthe Judgmentand decree in} O.S.No.276 of 2017 dated 17.10.20'19 on the file of the^Court of the^{XVll Addl}

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Senior Civil Judge, City Civil Court, Hyderabad.

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Between:

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Khaja Naseeruddin, S/o.Late Md.. Moinuddin, Aged about 69 years, Occ. Business, R/o.23-1-578, At Bibi Bazar Road, Hyderabad.

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...APPELLANT/RESPONDENT/PLAINTIFF

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ANO

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Syed Abdul Rab @ Arshad Mehta, S/o.Syed Abdul Quadem, Age 47 years, Occ. Business, R/o.23-1-545, 1st Floor, Alilah Kotla, Bib Bazar Road, Hyderabad, T.S.

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...RESPONOENT/APPELLANT/DEFENDANT

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lA NO: 2 OF 2022

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Petition under Section 151 of CPC praying that in the circumslances stated in the affidavit filed herein, the High Court may be pleased to suspefld the Judgment and Decree daled ?5.'10.2021 in A.S.No.212 of 2019 on the file of the lX Additional Chief Judge, City Civil Court, Hyderabad.

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lA NO: 3 OF 2022

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Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased to direct the respondent lo deposit the arrears of rentals and also continues to pay monthly rentals Rs.7,000/-.

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Counsel for the Appellant: MS K MANI DEEPIKA

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counsel for the Respondent: sRl PRATAP sINGH SUBEDAR

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The Court made the following: JUOGMENT

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THE HON'BLE SRI JI.]STICE M. LAXMAN

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SECOND APPEAL No.103 OF 2022

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JUDCME,NT:

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l. The present appeal has been directed against judgment and decree dated 25.10.2021 passed in A.S.No.2l2 of 2019 by the IX Additional Chief Judge, City^(livil Court, Hyderabad, wherein and whereby the judgmenr and decree dt. 17.10.2019 in O.S.No.276 of 2017 on the file of XVII Senior Civil Judge, City Civil Court, Hyderabad was reversed. The said suit was filed by the appellant for eviction on the ground that Tenant after Quit Notice failed to vacate the premises and the suit was decreed. In the appeal, it was reversed. Hence, the present Second Appeal.

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The present Sccond Appeal is at the instance of the plaintiff. The respondent herein is the defendant. For convenience, the ranks of the parties as they were relerred in the suit, is maintained.

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The sum and substance of the case of the plaintilf is that he is the absolute owner and possessor of the building bearing No.23-1-545, Bibi Bazar road, Hyderabad.^'fhe defendant was inducted as a tenant in the first floor in the year 2008. The tenancy was oral and it was monthly basis. The monthly rent is Rs.7,000/- which includes electricity and water charges. The delendant is a habitual defaulter and he had not been

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)

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ML,J SA No. 1O3 of 2O22

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paying rents from September,2013. The plaintiff restricted the ctaim for arrears of rent till August, 2016 @ Rs.7,000/- per month and arrears comes to Rs.2,52,000/- and mesne profits @Rs.10,000/- per month from 01.09.2016 till handing over of the physical possession. The plaintiff issued notice on 14.08.2016 terminating the tenancy and to handover the vacant possession. The defendant issued reply notice on 29.09.2016 with a false claim that he had lent a sum of Rs.5,00,000/- to the plaintiff and plaintiff kept properry as an equitable mortgage and there is no jur.al relationship of landlord and tenant. Therefore, prayed to allow the suit.

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The case of the delendant is that he admits the ownership_of the plaintiff. Further, he claims that there is no landlord and tenancy relationship. In fact, at the time of construction, he paid a sum of Rs.5,00,000/- to the plaintiff and the plaintiff kept first floor property towards equitable mortgage as a security of loan amount with an understanding that no rents are payable in respect of suit property and no interest is payable on the loan amount. Accordingly,^{prayed to dismiss} the suit.

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Basing on the above^{pteadings, the primary Court framedthe} following issues:

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l.Whetherthereisalandlordandtenancyrelationshipbetweenthe

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ML,J SA No. 103 of 2022

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ptaintiff and defendant?

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Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?

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Whether the plaintiff is entitled for recovery of arrears of rent for 3 years commencing from September,2013 to August, 2016 @^{Rs.7,0001 p.m. amounting to Rs.2,52,000/-as prayed for?}

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Whether the plaintiff is entitled for mesne profits @Rs. 10,000/p.m. commencing from I't September, 2016 till delivery of vacant peaceful possession of the suit schedule property?

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To what reliefl

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The plaintiff in order to prove his case examined himself as PW.I and relied upon [rx.Al to 44. On behalf of defendant, he himself examined as DW. I and no docurnent was marked.

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The trial Court disbelieved the defence set up by the defendant and upheld the existence of landlord and tenant relationship and consequently, the suit was decreed. As against the same, defendant filed first appeal. The First Appellate court reversed the findings olthe trial court holding rhat the ptaintiff did not estabrish jural relationship of landlord and tenancy. Aggrieved by the same, the present second appeal is filed.

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8 Heard both the Counsel on the following substantial question of Iarv:

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ML,J SA No. 103 of 2022

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Whether the findings of the First Appeltate Court in reversing the^judgment and decree of the trialCourt holding that there is no jural relationshipof landlord and tenant in between the appellant and respondent in spite of admission in the replyunder Ex.A3 and in the absence of any registered document in proof of his clairn of Usufructuary Mortgage, suffers from any perversity?

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Learned Counsel for the appellant/plaintiflf mainly contended that

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the First Appellate Court without any evidence from the defendant to the effect that his possession was referable to mortgage and he failed to produce any proof of loan transaction and deed of mortgage of suit property for security of loan amount. On the contrary, in the very reply notice issued by the defendant, he has categorically made an admission that he paid monthly rent; however, according to him, to meet the religious requirements, he paid such amount.

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The plea set up by the defendant is that there is Usufructuary Mortgage and not an equitable mo(gage. The essential features of Usufructuary Mortgage are explained under Section 58(d) of the Transfer of Property Act and they read as follows:

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'58 (d). Usufructuary mortgage:- Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises hifir to retain such^{possessionuntilpayment of the} mortgage-money, and to receive^{the rents and profitsaccruing} from the property or^{any part ol such rents and profitsand to} appropriate the same in^{lieu of intercst. or in payment ol thc} mortgage-money, or^{partly in lieu of interestor partlyin payment}

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ML,J SA No. 103 of 2022

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of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee."

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I l. It is also advantage to refer the requirements of equitable mortgage under Section 58(l) of Transfer of Property Act. It envisages a form of mortgage by deposit of title-deeds. According to this provision, where a person owns immovable property with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

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A reading of the above provision makes clear that for mortgage by deposit of title deeds, the primary requirement is deposit of title deed for security of the loan amount. In the present case, no title deed of the property in occupation ofthe defendant was produced by the defendant and it was not the case at all except pleading of equitable mortgage.

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A glance of definition of Usufructuary Mortgage shows that mortgagor delivers the possession to the Mortgagee and authorizes him to retain such possession until payment of mortgage-money and to receive rents and profits generating from such property. For Usufructuary Mortgage, the registration of the Mortgage Deed is mandatory. The defence set up by the defendant shows that his claim falls under [Jsufructuary Mortgage. Therefore, in order to sustain the

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ML,J SA No. lO3 of 2022

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plea, the defendant must produce the deed of mortgage which must be registered one. This has not been complied with by the defendant.

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The First Appellate Court without looking into evidence on record held that there was no landlord and tenant relationship exists between the plaintiff and defendant and consecluently, reversed r.r,ell consider judgment of primary court. Such findings ol appellant court suffer from perversity. Such finding is contrary to the very claim set up by the defendant wherein he has admitted the payment of rent @ Rs.2,500/- per rnonth but claimed that he has paid such rent to meet the religious obligation. This contention could be sustained il he could able to produce the registered Mortgage deed. When the mortgage deed is not produced, the rent paid by the tenant was only for enjoying the possession of suit property. The defendant utterly failed to substantiate l.ris defbnce.

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The defendant failed to produce any piece of evidence to show that he lent an amount of Rs.5,00,000/-. The defence set up by the defendant with regard to mortgage of property is not^proved. This aspect is completely ignored by the First Appellate^Court in reversing tlre judgment and decree of trial Cou(, which is very teasoned judgment.

I l

)'rI

ML,J SA No. 103 of 2022

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Hence, the^judgment and decree of the First Appellate Court requires to be set aside.

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16 Accordingly, the appeal is allowed and the^judgment and decree dated 25.10.2021 passed in A.S.No.212 of 2019 by the IX Additional Chief Judge, City Civil Court, Hyderabad, is set aside. The^judgment and decree dt. 17.10.2019 passed in O.S.No.276 of 2017 by the XVII Senior Civil Judge, City Civil Court, Hyderabad, is confirmed. The defendant is directed to pa), exemplary costs of Rs.25,000/- (Rupees twenty five thousand only) to the plaintiff.

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As a sequc'I, pending miscellaneous applications, if any, shall stand closed.

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COST MEMO

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S.A.NO.103 0F 2022

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Exemplary Costs awarded by the Court

Rs.25,000:00

Total

Rs.25,000:00

Appellant be and hereby is entitled to exemplary costs to be paid by the respondent.

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Sd/-B.S.CH IRANJEEVI JOINT REGISTRAR //TRUE COPY// A)

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SECTION OFFICER

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To,

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,| The lX Addl Chief Judge, City Civil Court, Hyderabad.

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2 The XVll Addl Senior Civil Judge, City Civil Court, Hyderabad 3 One CC to Ms K Mani Deepika, Advocate [OPUC] 4 One CC to Sri Pratap Singh Subedar, Advocate [OpUC] 5 Two CD Copies

plp

5{ir

HIGH COURT

DATED:16/0912022

DECREE

SA.No.103 ot 2022

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I
2 r ilr-[ i$2? t

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ALLOWING SECOND APPEAL

Khaja Naseeruddin, v. Syed Abdul Rab , Arshad Mehta

Case brief

What is this about?

What did the court decide?

Khaja Naseeruddin, v. Syed Abdul Rab , Arshad Mehta

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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