Kashilal Agarwalla vs Jawaharmal Jaskaram and Another

G. Mehrotra, C.J.—This is Defendant''s appeal. The suit was for ejectment of the Defendant and for possession after removing and dismantling the houses on the land. The case of the Plaintiff was that the Defendant took the house on a monthly rent of Rs. 31/4/ and the tenancy was according to the Sambat year. As the Defendant defaulted in paying the rent and further that the houses became old and the Plaintiff required the said houses for reconstructing them, he gave a notice to the Defendant which he refused to accept and thus the Plaintiff brought the present suit for recovery of arrears of rent as well as for ejectment of the Defendant. The trial court dismissed the suit for ejectment but decreed the suit for arrears of rent On appeal the lower appellate court allowed the appeal and decreed the suit for ejcetment.

In the present appeal the Defendant has raised mainly two points, firstly that there was no valid notice and secondly that the Plaintiff has failed to prove that he requires the houses for reconstruction.

The contention of the Appellant is that the registered envelope containing the notice is alleged to have been refused by the Defendant and unless the endorsement made by the peon to that effect is proved by the peon, no presumption can be raised against the Defendant about the service of the notice Section 106. Transfer of Property Act reads as follows.

In the absence of a contract or local law or usage lo the contrary, a lease of Immovable properly for agricultural or manufacturing purposes shall be deemed to be a lease from year to year. terminable, on the part of either lessor or lessee by six months'' notice expiring with the end of a year of the tenancy: and a lease of Immovable property for any other purpose shall be deemed to be a lease from month lo month, terminable, on the part of either lessor or lessee, by fifteen days'' notice expiring with the end of a month of the tenancy.

Every notice under this section must be on writing signed by or on behalf of the person giving it. either be sent by post to the party who is intended lo be bound by it or be tendered on delivered personally lo such party or to one of his family or servants, at his residence, (sic)(if such lender or delivery is not practicable) affixed to a conspicuous part of the property.

What Section 106 requires is that the notice is to be in writing signed by and on behalf of the person giving it and it can be sent either by post to the party or tendered or delivered, personally to such party. As soon as the notice is posted by giving the proper address, the requirement of Section 106, Transfer of Property Act is complied with and there will be a presumption that notice has been tendered as required u/s 106. If the Defendant wants to rebut that presumption it is for him to prove that the notice has not been tendered at all In the present case the defence taken was that the notice was never sent.

Mr. Pathak contends that unless it is proved by the Plaintiff himself that the notice is received by the Defendant there is no valid notice under Clause 1 of Section 106. In my opinion there is no substance in this contention. There is also no force in his contention that unless the peon is examined the endorsement to the effect that that letter has been refused cannot be taken into consideration and no presumption can be raised in favour of the Plaintiff. Reference in this connection may be made to the cases of Saligram Rai Chunilal Bahadur and Co. Vs. Abdul Gani and Others, Bapayva v. Venkataratnam reported in AIR 1953 Mad 884. Azizul Haque v. P. Das reported in ILR (1955) Gau 544, Harihar Banerji v. Ramshashi Roy reported in 23 CWN 77 : AIR 1918 PC 102 and Girish Chandra Ghose v. Kishore Mohan Das reported in 23 CWN 319 : AIR 1920 Cal 287 (2).

Mr. Pathak relied upon certain observations in the case of Vaman Vithal Kulkarni Vs. Khanderao Ramrao Sholapurkar, The facts of that case are distinguishable and moreover in view of the decision of this Court in the case reported in AIR 1953 Gau 200 with which I have no reason to differ the case reported in Vaman Vithal Kulkarni Vs. Khanderao Ramrao Sholapurkar, cannot be of much assistance to the Defendant The notice was thus valid and there is no substance in This contention.

There is no force in the other point raised by the Appellant also The court below after consideration of the evidence has come to the conclusion that the house required reconstruction Although the Plaintiff claimed ejectment on the ground that the Defendant was a defaulter, it is also alleged in the plaint that the house has become very old and was needed for reconstruction it cannot therefore be argued that the point was not urged by the Plaintiff The finding that the house was required for reconstruction is a pure finding of fact.

Mr. Lahiri for the Respondent has tried to support the decision of the court below also on the ground that the Defendant was a defaulter as the finding of the lower appellate court on that point against the Respondent has been challenged As. however I have held that there is no force in the appeal, it is not necessary to examine this point any further In the result, therefore, there is no force in this appeal and it is dismissed with cost.