RAM SWARUP AND ANOTHER Vs. RAM NIWAS

JUDGEMENT

(1.) THIS is a Plaintiffs appeal. As landlords of an accommodation in the city of Bareilly, the Plaintiffs brought a suit against Defendant Respondent as tenant for ejectment and recovery of Rs. 103/ - as arrears of rent. The Plaintiffs alleged that the Defendant was the tenant in the premises in dispute on a monthly rent of Rs. 30/ - ; that the Defendant by opening a radio workshop in the Baithak of the accommodation used the premises let out to him for a purpose inconsistent with the purpose for which the premises were taken on rent, that the Defendant had illegally sub -let the premises in dispute to one Kanhaiya Lal who was in possession of the same as sub -tenant that by an order under the U.P. (Temporary) Control of Rent and Eviction Act the accommodation was let to the Defendant and that the Plaintiffs had duly served upon the Defendant a notice Under Section 106 of the Transfer of Property Act, terminating the tenancy and calling upon the Defendant to vacate the accommodation. It was prayed that the Defendant be ejected from the premises and further a decree for recovery of rent of Rs. 103/ - as arrears of rent be passed. The defence was that the Defendant was a tenant in the accommodation in dispute but he had neither used the accommodation for a purpose inconsistent with the purpose for which it was let out nor did he sublet the accommodation. It was pleaded that Kanhaiya Lal was the real uncle of the Defendant and stayed in the accommodation in dispute with the Defendant. It was further pleaded that no notice Under Section 106 of the Transfer of Property Act terminating the tenancy was ever received by the Defendant. It may be mentioned that the Plaintiffs had not impleaded Kanhaiya Lal as Defendant in the suit.

(2.) THE learned Munsif on the evidence on record found that no notice Under Section 106 of the Transfer of Property Act terminating the tenancy and calling upon the Defendant to quit was served on the Defendant; that the Defendant by carrying on the repairs of radio sets in the Baithak of the accommodation had not put that accommodation to a purpose inconsistent with the residential purpose for which the accommodation in dispute was let and that the Defendant had not sublet the accommodation in dispute to Kanhaiya Lal. The result was that while the suit of the Plaintiff for recovery of a sum of Rs. 103/ - as arrears of rent due was decreed, the suit of the Plaintiff for ejectment of the Defendant was dismissed. On appeal by the Plaintiffs the learned Judge of the lower appellate court affirmed the findings recorded by the learned Munsif and dismissed the appeal.

(3.) I do not think that any of the contentions raised by the Learned Counsel for the Appellants has any force. That a registered letter would be deemed to have been delivered to the addressee in due course is only a rule of presumption. The presumption can be rebutted. In the instant; case I find that the Plaintiffs sought to rely upon some signature on the acknowledgment due form and asserted that it was the signature of the Defendant who had received the registered envelop duly addressed to him which contained a notice terminating his tenancy and asking the Defendant to quit as required by Section 106 of the Transfer of Property Act. Both the courts below arrived at concurrent finding chat the acknowledgment due did not bear the signature of the Defendant. The statement of the Defendant that he never received any registered letter containing any notice terminating the tenancy and asking him to quit has been believed. The presumption thus stood clearly rebutted. Essentially the finding that no notice Under Section 106 of the Transfer of Property Act was served on the Defendant is one of fact. It cannot be interfered in second appeal.