NOOR AHMAD KHAN Vs. NARGIS DUTT

JUDGEMENT

(1.) THIS is a defendants' appeal arising out of a suit for evic tion and damages. The plaintiff was granted permission to file the suit under the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the 'Act'). Though the defendants took up the matter to the State Government, but the State Government has held that the permission has been rightly granted by the Commissioner and dismissed the revision filed by the defendants. The Courts below have held that the notice under Section 106 of the Transfer of Property Act was duly served on the defendant and that there existed relationship of landlord and tenant between the plaintiff and the defendants. The suit has, accordingly, been decreed. The defendants preferred an appeal, which was also dismissed. Aggrieved by the order of the lower appellate Court, the appellants have filed the present second appeal in this Court. The first ground urged in support of the appeal is that the notice under Section 106 of the Transfer of Property Act served on the appellants is invalid, as it purports to terminate the tenancy of the defendants immediately on receipt of the notice and did not grant 30 days' time to the appellants, as provided by the provisions of Transfer of Property Act. The relevant para graph in the notice runs as follows :- "Your tenancy is hereby terminated, and you must vacate the aforesaid premises in your occupation as a tenant on the expiry of 30 days from the receipt of this notice and hand over possession thereof to my client.'' A similar question arose in Civil Revision No. 503 of 1977, Laxmi Narain v. Gopinath Decided by Hon'ble Mr.. Justice K. N. Singh on 10th September, 1978 = 1978 (4) ALR 152 (Summary). The notice in that case runs as follows :- "That you are no longer required to remain as tenant and your tenancy is hereby terminated calling upon you to vacate and deliver up quiet and vacant possession of the said shop in your tenancy to my said client within thirty days from the service of this notice." It was claimed that the notice was invalid, as it was terminated the tenancy in present with immediate effect. THIS argument was rejected by the learned Judge. It was held that the word "hereby" means by or through or by virtue of, and not that the tenancy was terminated on receipt of the notice. The learned Judge has taken into account the decision of the Division Bench of this Court in Abdul Jalil v. Haji Abdul Jalil AIR 1974 Alld. 402. In this view of the matter it must be held that the word 'hereby' in the impugned notice indicates that the termination of the tenancy is done by the notice and not that the tenancy is terminated on receipt of the notice forth with. In this view of the matter the argument of the learned Counsel for the appellants cannot be accepted and is rejected. The next submission of the learned counsel for the appellant is that the notice under Section 106 of the Transfer of Property Act was not served on Sardar Noor Ahmad Khan, the tenant of the accommodation. Both the Courts below have found that the notice was duly served on Sardar Noor Ahmad Khan. The learned counsel has submitted that the postman, who served the notice, has not been examined and the service was sought to be proved by the fact that a duly registered notice was sent on the correct address to Sardar Noor Ahmad Khan and was received by him. Sardar Noor Ahmad Khan signed the acknowledgment receipt, which has been produced. The signature of Sardar Noor Ahmad Khan was sought to be proved by P. W. I, A. E. James. The witness stated that though he had not seen Sardar Noor Ahmad Khan actually writing in his presence, but he had some correspondence with Sardar Noor Ahmad Khan and he received letters from Sardar-Noor Ahmad Khan there from identified his writing. THIS witness, obviously, was in a position to identify the signature of Sardar Noor Ahmad Khan. The mere fact feat when Sardar Noor Ahmad Khan entered the witness box, the plaintiff did not put the disputed signature to Sardar Noor Ahmad Khan, would not establish that the signature is not of Sardar Noor Ahmad Khan. Sardar Noor Ahmad Khan never stated in his evidence, when he appeared in the witness box. that the disputed signature was not his. In view of the concurrent finding of fact of the two Courts below on this point, it must be held that the notice under Section 106 of the Transfer of Property Act was duly sent to the defendant and was duly served on Sardar Noor Ahmad Khan. The next submission of the learned counsel for the appellants is that defendant Sardar Noor Ahmad Khan was an Afghan refugee and the building in question was not in the tenancy of Sardar Noor Ahmad Khan, but in the tenancy of the Central Government, and the rent was paid by the Tahsil Authorities of Allahabad. It has been found as a fact that the rent was actually paid to the landlady from Tahsil Chail, Allahabad. Sardar Noor Ahmad Khan has admitted that he made an application for the allotment of the house in dispute and the house was allotted under the orders of the District Magistrate, Allahabad, to him. Further, there were proceedings under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, which led to revision before the Commissioner, Allahabad Division and the State Government, in which at no stage Sardar Noor Ahmad Khan disputed that he was not the tenant of the accommodation and the application was not maintainable. Further, it is established from the record that at a certain stage Sardar Noor Ahmad Khan was aggrieved by the order granting permission to he a suit against his eviction and he moved this Court under Article 226 of the Constitution. That writ petition was dismissed. The mere fact that the rent was paid on behalf of Sardar Noor Ahmad Khan by the Government would not establish that the Government was the tenant of the accommodation and not Sardar Noor Ahmad Khan. The rela tionship of landlord and tenant is normally contractual. There is no evidence on the record that any contract of tenancy was entered into between the land lady and the Government, either Central or State. On the contrary Sardar Noor Ahmad Khan had applied for allotment of the house in dispute and an allotment order was passed in his favour directing the landlady to give the accommodation to Sardar Noor Ahmad Khan. Sardar Noor Ahmad Khan entered into possession obviously, in pursuance of the allotment order passed by the District Magistrate. It appears that Sardar Noor Ahmad Khan was receiving the house allowance by virtue of being an Afghan refugee. THIS allowance has been directly paid by the Tahsil Authorities to the landlady. Merely because the rent on behalf of Sardar Noor Ahmad Khan was being paid by the Govern ment, would not make the Government a tenant of the accommodation in dispute instead of Sardar Noor Ahmad Khan. In the result, I find no merits in this appeal. It is, accordingly dismissed with costs. The decree for eviction shall be put to execution after a period of four months from today.