ACHAB ALI Vs. ABDUL MATLIB MAJARBHUIYA

JUDGEMENT

(1.) The substantial question of law involved in this appeal is relatable to the question as to when presumption available in the case of a registered letter properly addressed is sufficient to hold about the service of the same even if the addressee denies its receipt on oath. This question arises in the context of a suit filed for eviction of the defendant from 1B-4K-13 chh. of land. According to the plaintiff-respondent, notice as required under section 106 of the Transfer of Property Act was sent to the defendant by registered post which the defendant had refused to receive. The tendering of notice was denied by the defendant in his written statement, so also in his evidence. The plaintiff had not examined the postal peon in question. The learned trial Court held that notice was duly served. This finding was arrived at on the basis of the exhibits showing posting of a registered letter and the acknowledgement endorsing "refused". Reliance was placed on a decision of this Court in Kashilal Vs. Jawaharmal, AIR 1966 A&N 104. On appeal being preferred, it was held by the learned Assistant District Judge that when notice of ejectment is posted by giving proper address, the requirement of section 106 of the Transfer of Property Act is complied with and there will be a presumption that a notice has been tendered as required under the law. This presumption is fortified when the notice is returned with the endorsement "refused". It was, however, acknowledged that this presumption is rebuttable. Despite this, the evidence of the defendant regarding non-refusal of notice by him was not considered.

(2.) Though two other contentions of the defendant that this was a case of splitting up of tenancy and he was not a defaulter were also not accepted by the courts below. Shri Dey has not addressed me, and rightly, on these issues, as they are concluded by finding of facts. The learned counsel, therefore, confined his address on issue No. 3 which reads: "Had any legally valid ejectment notice been served upon the defendant -

(3.) It is not denied by Shri Dey and again, rightly, that if a letter properly addressed and sent by registered post, presumption of its service would be available to the sender in view of what has been stated in section 27 of the General clauses Act and sections 16 and 114 of the Evidence Act read with Illustrations (a) and (b) of section 16 and (e) and (f) of 114. But then this presumptions is rebuttable. His contention is that as the defendant denied on oath the tender of notice to him, the presumption had sufficiently been rebutted. In such a situation, according to the learned counsel, it was incumbent on the part of the plaintiff to examine the postal peon in question, which was not done. Shri Dey contends that the entire matter could not have been decided only on the basis of presumption on the face of the testimony of the defendant, as has been done. As the courts below have relied the decision in kashilal, it would be in the fitness of things to note the ratio of that decision first. In that case, the defence was that the notice was never sent. In dealing with such a defence, it was pointed out that as soon as the notice is pasted by giving proper address, the requirement of section 106 of the Transfer of property Act is complied with and there will be a presumption that notice has been tendered as required by that section. Farther observation in paragraph 3 is pertinent in this regard as it is stated that "[1] if the defendants wants to rebut that presumption it is for him to prove that the notice has not been tendered at all". This aspect had completely missed the learned courts below inasmuch as the defendant did enter the witness-box and stated that he had not refused the notice. Whether that is sufficient to rebut the presumption is a different matter; but his evidence could not have been totally ignored in coming to the finding whether the presumption can be said to have been rebutted in the present case.