KASHILAL AGARWALLA Vs. JAWAHARMAL JASKARAM AND ANR.

JUDGEMENT

(1.) THIS is Defendant's appeal. The suit was for ejectment of the Defendant and for possession after removing and dismantling the houses on the land. The case of the Plaintiff was that the Defendant took the house on a monthly rent of Rs. 31/4/ and the tenancy was according to the Sambat year. As the Defendant defaulted in paying the rent and further that the houses became old and the Plaintiff required the said houses for reconstructing them, he gave a notice to the Defendant which he refused to accept and thus the Plaintiff brought the present suit for recovery of arrears of rent as well as for ejectment of the Defendant. The trial court dismissed the suit for ejectment but decreed the suit for arrears of rent On appeal the lower appellate court allowed the appeal and decreed the suit for ejectment.

(2.) IN the present appeal the Defendant has raised mainly two points, firstly that there was no valid notice and secondly that the Plaintiff has failed to prove that he requires the houses for reconstruction. The contention of the Appellant is that the registered envelope containing the notice is alleged to have been refused by the Defendant and unless the endorsement made by the peon to that effect is proved by the peon, no presumption can be raised against the Defendant about the service of the notice Section 106 . Transfer of Property Act reads as follows.

(3.) MR . Pathak contends that unless it is proved by the Plaintiff himself that the notice is received by the Defendant there is no valid notice under Clause 1 of Section 106. In my opinion there is no substance in this contention. There is also no force in his contention that unless the peon is examined the endorsement to the effect that that letter has been refused cannot be taken into consideration and no presumption can be raised in favour of the Plaintiff. Reference in this connection may be made to the cases of Saligram Rai Chunilal Bahadur and Co. v. Abdul Gani reported in : AIR 1953 Gau 206, Bapayva v. Venkataratnam reported in : AIR 1953 Mad 884. Azizul Haque v. P. Das reported in, ILR (1955) Gau 544, Harihar Banerji v. Ramshashi Roy reported in : 23 CWN 77 :, AIR 1918 PC 102 and Girish Chandra Ghose v. Kishore Mohan Das reported in : 23 CWN 319 :, AIR 1920 Cal 287 (2).