KANTI LAL Vs. KALYANI BHATTACHARYA

JUDGEMENT

(1.) SMT . Kalyani Bhattacharya is owner of House No. D-39/26, Kodi Chauki in Varanasi Kanti Lal partner of Swastik Cycle Store, is a tenant in a garage of this house on a monthly rent of Rs. 25. He fell in arrears and, according to Smt. Kalyani Bhattacharya, failed to pay the amount of arrears within a month of the service of a notice of demand. This notice was combined with a notice under Section 106 of the Transfer of Property Act terminating the tenancy of Kanti Lal and requiring him to hand over vacant possession of the garage on expiry of thirty days. Kanti Lal did not vacate the garage so Smt. Kalyani Bhattacharya had to institute Suit No. 1172 of 1969 against him both for recovery of the amount of arrears and ejectment of Kanti Lal. Apart from the ground that Kanti Lal was in arrears of rent, Smt. Kalyani Bhattacharya also asked for his ejectment on the ground that he had created nuisance.

(2.) KANTI Lal resisted the suit and inter alia, pleaded that Smt. Kalyani Bhattacharya was not the owner and thus landlord of the premises. And, also that no notice of demand or the one terminating the tenancy was served upon him as alleged. He denied that there was any nuisance committed by him entitling Smt. Kalyani Bhattacharya to get a decree for his ejectment. The trial Munsif as well as the Addl. Civil Judge, Varanasi, to whom the matter was taken in appeal (Civil Appeal No. 126 of 1972) took the view, on consideration of the evidence on record, that no notice making a demand of arrears of or terminating the tenancy of Kanti Lal was served upon Kanti Lal. The learned Additional Civil Judge upheld the claim of Smt. Kalyani Bhattacharya that she was the owner-landlady of the premises reversing the decision of the trial Munsif to the contrary. Smt. Kalyani Bhattacharya approached this Court in S.A. No. 3188 of 1972 seeking relief against Kanti Lal. On February 17, 1971, the appeal was allowed and the matter was sent back to the lower appellate Court for decision afresh on the question whether the notice aforesaid was served upon Kanti Lal in accordance with law or not. This Court was of opinion that the Addl. Civil Judge had committed an error in taking the view that it was for plaintiff Smt. Kalyani Bhattacharya to choose whether she would relay upon the statutory presumption on arising in her favour in the matter of service of notice upon Kanti Lal by the fact that the registered cover addressed to Kanti Lal had been received back with an endorsement from the postal authorities that Kanti Lal had refused to accept it. The Court explained the correct legal position in this respect by observing, in substance, that the matter should be examined by the lower appellate Court on the basis that there was a statutory presumption of law under Section 27 of the U.P. General Clauses Act to the effect that the refusal aforesaid amounted to service of notice upon Kanti Lal and that thereafter the burden of establishing that the said presumption stood rebutted, by the evidence on record lay upon Kanti Lal. The law laid down by a Division Bench of this Court in Dwarika Singh v. Rattan Singh Ahuja, 1969 ALJ 849; 1969 RCR 849, and by a Full Bench in Ganga Ram v. Smt. Phulwati, AIR 1970 Alld. 446; 1970 RCR 485, was noticed by this Court in its judgment.

(3.) THE notice was sent by Smt. Kalyani Bhattacharya on August 16, 1969 through registered post. It was correctly addressed. Faqre Alam, postman, who took the notice for service entered the witness box as the plaintiff's first witness. He stated that when he showed the notice to the defendant, he was asked by the defendant to endorse thereon that he was out of town but he did not accede to this request. Instead, upon his refusal to accept the notice the fact it had been refused was endorsed by him in the presence of the defendant and that thereafter the cover was returned to the post-office. In cross-examination, the witness said that he could recognise the person who had refused to accept the notice and being asked to do so he pointed to Jaswant Lal a brother of Kanti Lal, defendant, as the person who had refused to accept the notice. The Civil Judge has taken the view that the failure of the postman to identify the defendant may have been occasioned due to the fact that he came across a large number of people in the course of his duty as a postman and was asked to identify the person who is said to have refused to accept the notice after a lapse of a year from the date on which refusal is alleged.