Md. Achab Ali vs Md. Abdul Matilib Majarbhuiya

D.N. Baruah, J.—This second appeal is directed against the judgement and decree dated 27.8.84 passed by the Assistant District Judge, No. 2, Cachar at silchar in Title Appeal No. 12/75, dismissing the appeal and affirming the judgment and decree of the trial court.

The substantial question of law formulated by this Court are:

(i) Whether the learned appellate Court did comply with the direction of this Court in the remand order dated 3.6.83 rendered in S. A. 51,77? and

(ii) Whether the learned appellate Court was correct in law to shift the burden of proof to the defendant as regards receipt of secice of notice u/s 106 of the T P. Act even in spite of the fact that the defendant subsequently denied such receipt of notice.

the facts of the case, in brief, are as follows:

The respondent as plaintiff instituted as suit (TS 107/72) against the appellant for his ejectment from the suit land measuring 1B. 4K. 12L. and for recovery of Rs. 75/- as arrear rent and compensation. The respondent''s case is that the appellant was in occupation of the suit land under him as a tenant according to the Bengali Calendar year at an annual rent of Rs. 20/-, but he failed to pay rent and became defaulter. Besides the respondent required the suit land for his own use. Therefore, he issued a notice of ejectment, by registered post asking the Respondent required the suit land for his own use. Therefore, he issued a notice of ejectment , by registered post asking the Respondent/defendants to quit and vacate the land at the end of Basishak 1379 BS. The appellant refused to accept the notice. The Respondent, therefore, filed the suit. The appellant filed written statement he denied the service of notice. During the trial, evidence of witnesses was recorded on behalf of both asides. After recording the evidence, the Munsif decreed the suit. The appellant preferred an appeal in the Court of the Assistant District Judge, No 2, Cachar, Silchar (TA No. 12/75). The Assistant District Judge affirmed the judgement and decree passed by the Munsiff dismissing the suit.

A second appeal was also filed before this Court (SA 51/77). In the said second appeal, the substantial question involved was, "when presumption available in the case of a registered letter properly addressed is sufficient to hold about service of the same even if the addressee denied its. receipt on oath. After considering the relevant provisions of law, this Court by judgment dated 3. 6. 83 disposed of the appeal remanding the case of the first appellate Court to dispose of the appeal afresh. In the said judgment, the parties were allowed to lead additional evidence on the said issue. While disposing the said second appeal, this Court further held that posting a letter giving correct address a presumption may arise about the delivery, but such presumption is rebuttable. The important question to consider was whether any evidence was led in rebuttal and if so whether that was sufficient? this Court further held that a solitary statement of the defendant may be regarded as sufficient to rebut the presumption if the evidence appears to be convincing. There is also no rule of law to show the statement given by the defendant should not be accepted, unless corroborated by any independent witness. Only thing that is needed in a case where rebuttal evidence is adduced is that mind has to be applied to the same and it has to be found out whether the evidence inspires confidence and is sufficient to rebut the presumption. Besides, the Court is also required to examine other evidence or record to see if the defendant had knowledge of the notice and has actually refused it knowingly. As the appellate judgment passed by the Assistant District Judge, these things were not considered, this Court thought it fit to remand the case and on remand additional evidence was adduced.

Shri Joytirmoy Dev, a Postal Peon of the Halflong Post Office was examined on behalf of the plaintiff. According to his statement in 1972 he was in Taraput Post Office in Silchar and he stated that Exhibit-4 was a registered letter and he was asked by Taraput Post Office in Silchar to deliver the same to the addressee. On two occasions, he went to the place of addressee, but could not meet him and lastly on 26.4.72 he went to the residence of the addressee and tendered the registered letter, Exhibit-4, he however, refused to accept the same and therefore, he returned the registered cover to the sender with his endorsement, which he proved as Exhibit-4(2) and,4(3).

In cross-examination he stated that he did not remember whether there was a Post Office at Ramnagar. In Taraput Post Office there were six Postman, including him. The Postmen Book and Registered Book of Taraput Post Office, would show the entry regarding the delivery of the registered letter. There must also be also be his signature. However, those postmen book and registered book were not produced. The appellant had denied that his residence was within the territory of Taraput Post Office and his residence actually situated within the Ramput Post Office, Therefore, according to the appellant the question of delivering the registered letter by the said postman does not arise at all.

The appellant also examied himself. In his evidence, he clearly stated that Ramnagar Post Office was established about 30 years ago and he used to receive letter from this Post Office. The witness, Sri Joytirmoy Dev, postal peomn never tendered the said letter, After recording the evidence, the appellate Court by its judgment dated 27.8.1984 dismissed the appeal upholding the appeal, the Assistant District Judge held that there was only a denial on oath by the appellant by way of rebuttal the evidence. According to him, in order to prove the contention, the defendant did not produce any letter addressed to him was ever delivered to him from Ramngar Post Office. Moreover, he found that the Exhibit-4 contained the stamp of Ramnagar Post Office. If there was any impropriety and violation of official manners, the burden was on the defendant to prove such impropriety and violation alleged by him. As no such evidence was adduced by the defendant, the Assistant District Judge found that the service of the notice was sufficient, and therefore, the issue was decided in favour of the plaintiff

8.1 have heard both sides. The question to be determined is whether it was the duty of the defendant to prove the service of notice? No doubt when a letter is posted giving proper address the presumption is that is due course the letter must reach to the addressee. But this presumption is only rebuttable presumption. Now in what was the presumption can be rebutted. In this case, the evidence was recorded from both sides, i. e. from the plaintiff''s side the Postman. His statement, no doubt, has got much importance. But if the said statement is rebutted by the defendant- teh address seek by making a statement on oath that statement cannot be thrown of, If a letter is sent of an Addressee and if such letter is not tendered, the addressee can only come to the Court and give a statement and he cannot give any further evidence. Whether such statement creates confidence will depend on the statement of the said person. If the statement of the addressee is found to be trustworthy, merely because of the postal peon came and deposed before the Court is not sufficient. Instances are not few where unscrupulous landlords manage to get a notice served in collusion with the postal peon just of deprive the right of the defendant-tenant. This aspect cannot be overlooked. Moreso, in the present case, there is some doubt about the service of notice, inasmuch as, the Postal peon, who claimed to have tendered the notice was at the relevant time attached to Taraput Post Office, within whose jurisdiction the defendant did not reside. His specific evidence is that his resident was situated within the area of Ramnagar Post Office and the said Post Office was functioning for last 30 years. If that is so, it was the duty of the plaintiff to prove that the PW-1, Joytirmoy Dev, Postal Peon, was assigned the duty to deliver the letter because of the paucity of the postman in Ramnagar Post Office. The plaintiff could have proved it by producing the Postman book and registered book of the Taraput Post Office, where according to the said witness, the entries and signatures were available. The plaintiff failed to prove these important materials and it was definitely his burden to prove those material evidence, inasmuch as the defendant categorically denied that the letter was not tendered to him by the Postman concerned and that his residence was situated within the territory of Tarapur Post Office. That being so, the Assistant District Judge committed error by shifting the burden of proof of delivery of the said letter on thee appellant. The defendant is not expected to produce any negative evidence. It is the plaintiffs who could prove the delivery by producing positive evidence, such as, on the material day, the registered book and Peon book, wherein the entries were made regarding the delivery of the registered letter by the PW-1, Postal Peon, who was assigned to deliver the letter. The plaintiff having failed to proved the same, in my opinion, the service of notice cannot be accepted. The plaintiff having failed to prove the service of notice, the suit cannot be decreed, as such, I set aside the judgment passed by the Court below and dismiss the suit.

In the facts and circumstances of the case, I make no order as to cost.