RAMA DEVI Vs. RAM PRAKASH

JUDGEMENT

(1.) Respondents-plaintiffs filed a suit against the appellants for their ejectment, arrears of rent and mesne profit. The suit was filed, on the allegation that the defendants were wilful defaulters and a combined notice of demand and termination of tenancy has been given and their tenancy stands terminated.

(2.) Besides other pleas the defendants maintained that any notice was not served upon them so neither they are defaulters nor their tenancy stands terminated. It would appear that a registered notice was sent addressed separately to defendant No. 1, the mother as well as defendant No. 2, the son who were co-tenants at Varanasi address on 4-8-1970. On the two notices there is an endorsement of the postman dated 8-8-1970 that the addressee refused to accept the notice, and the service was claimed by denial. The stand of the defendants was that defendant No. 2 who is employed in Government Cement Factory Dala, District Mirzapur and ordinarily resides there, had to perform Mundan ceremony of his son at Vindhyachal Mirzapur, so he sent a letter to his mother to come to Mirzapur by 6-8-1970 evening and they both would proceed for such. Mundan on 7-8-1970 and they so proceeded and returned to Varanasi only in the night of 8-8-1970, The trial Court believing the defendants' evidence and holding that the service of the notice is not proved dismissed the suit for ejectment while granting a decree for Rs. 339/- as rent up to Aug. 1970 and also granting a decree for further rent for subsequent period on payment of additional Court fee. The plaintiffs preferred first appeal. The first appellate Court found that the service of the notice dated 8-8-1970 is proved and not rebutted, so presumption would prevail and consequently the defendants are also liable to ejectment in addition to the decree for rent and mesne profit.

(3.) Aggrieved from such judgment, and decree of the first appellate Court dated 22-7-1972 a second appeal has been preferred by the defendants.