MULIBAI MENGRAJ SHAH Vs. MANGILAL CHUNILAL PARMAR

JUDGEMENT

(1.) THIS is a petition filed by the tenant challenging the decree for possession passed on the ground of non-payment of rent.

(2.) FEW facts which are relevant for the purpose of this petition are that the petitioner No. 1 is the mother-in-law of petitioner No. 2 and they are in occupation of two open plots admeasuring 60' x 40' and 8' x 11' from survey No. 342, Kaneri Road, Dattapada, Borivil (East) Bombay. The agreed rent is Rs. 65/- per month. The respondent appears to have purchased this property in the year 1968 and thus he became the landlord. It appears that on 15th July, 1971 the notice of demand was sent and the said notice so far as petitioner No. 1 was concerned, the acknowledgement was returned with the remark 'addressee left the place'. So far as defendant No. 2 is the endorsement on the acknowledgement was 'refused'. After issuing the said notice of demand on 15th July 1971 where the arrears of rent from 1.2.1968 were claimed. The suit for possession was filed on 12th November, 1971 on the ground of non-payment of rent on the ground of bonafide personal requirement. Both the courts concurrently recorded a finding that the landlord failed to establish bonafide requirements. However, on the question of arrears the courts below accepted the contention of the petitioners that they did not receive the notice. The two court drew the presumption under the Evidence Act under Section 114 read with Section 27 of the General Clauses Act as also under Section 28 and held that the respondent landlord proved due service of notice on petitioners and since within one month of the notice nothing was paid by the petitioners. Decree was passed under Section 12(3)(a) of the Bombay Rent Act.

(3.) SHRI S.P. Kanuga, learned counsel appearing for the petitioner pointed out that notice is not properly served in accordance with the provisions of Section 106 of the Transfer of Property Act. He pointed out that so far as petitioner No. 1 is concerned endorsement clearly shows that the petitioner No. 1 has left the place. The endorsement 'left the place' cannot be equated with due service of notice and no presumption arises regarding service of notice. So far as the petitioner No. 2 is concerned Shri Kanuga pointed out that the acknowledgement receipt the endorsement 'refused'. However, it is true that presumption does arises regarding due service of such a notice when the endorsement is 'refused'. However, the presumption is rebuttable presumption. The tenants have rebutted this presumption, firstly by filing written statement and taking positive contention that they have not received any notice nor they have refused to accept any notice. Secondly the petitioner No. 2 entered the witness box and stated on oath that he has never refused to accept any notice. Notwithstanding this Shri Kanuga contends that the presumption being rebutted the landlord not proved by leading cogent evidence that the tenants have been properly served and in view of this he contends that the decree will have to be quashed and set aside, and the suit is required to be dismissed.