SAEED AHMED Vs. SYED QAMAK ALI

JUDGEMENT

(1.) THIS is a defendant tenant's appeal from a concurrent decree of his eviction from a shop of which the plain tiff respondent was the landlord.

(2.) ON 30-12-1967 the landlord ob tained permission from the Rent Control and Eviction Officer to file a suit for eviction of the tenant. A revision was filed by the tenant before the Commissioner and on 25-1- 1968 pending the revision the Commissioner stayed the operation of the order of permis sion. The landlord served a notice under Section 106 of the Transfer of Property Act terminating the tenancy. On 14-2-1968 the landlord filed a suit for eviction, reco very of arrears of rent and damages. It was alleged that the permission had been obtain ed from the Rent Control and Eviction Offi cer and the suit was maintainable. It was further alleged that a registered notice sent to the tenant by the jail address where he was detained was returned as refused, while an other notice sent to the tenant by his home address and redirected to the jail was ac-knowledge by the Superintendent of the Jail. It is not necessary to encumber this judgment by other allegations made in the plaint as nothing will turn on the same in this appeal. The defendant mainly contested on the pleas that no notice terminating his tenancy was served upon him; that the suit of the plaintiff was not maintainable as there was no subsisting permission on the date when the suit was filed that the permission granted by the Rent Control and Eviction Officer was set aside by the Commissioner by his order dated 10-12-1968 and that the Tah sildar not having been empowered to exercise the powers of the District Magistrate under Section 3 of the Rent Control Act the per mission granted by him was invalid.

(3.) THE first point raised in support of the appeal was that the court below erred in presuming on the basis of the endorse ment of refusal that the notice under Sec tion 106 of the Transfer of Property Act would be deemed to have been duly served. It was submitted that the endorsement of refusal on the inland letter containing the notice of termination not being initialled by the postman and there not being any other evidence that the postman actually took the registered letter to the defendant, the plain tiff on whom was the onus to establish ser vice of the notice failed and he was not en titled to the benefit of presumption. I have perused Ext. 6 which is the inland letter sent by registered post by the jail address where the defendant was confined in January 1968. I find on the cover three endorsements of refusal at three different places, two are in red pencil and the one in ink. I find that below the endorsement of refusal in ink there is an initial but it does not bear any date. There is also an initial below one of the endorsements in red pencil. There fore, it is incorrect to say that the endorse ment of refusal does not bear any initial. The presumption would be that the initial Was that of the postman and it was the post man who made the endorsement of refusal. It was then for the defendant to adduce evidence to rebut that and no such evi dence had been adduced. The plaintiff was under no duty to produce the postman. The Court below in these circumstances rightly applied the ratio of the decision of the Full Bench in Ganga Ram v. Smt. Phulwati, 1970 All LJ 336 == (AIR 1970 All 446) (FB). In any view of the matter, I find from the record that the other notice which was re directed to the defendant to the jail has been acknowledged by the Superintendent of the I ail. I think that notice would be deemed to have been served on the defen dant since he was confined as a prisoner of the Superintendent of Bareilly laid and the presumption would be that the Superin tendent must have given the letter to the defendant This ground of attack fails.