MATADIN SHARMA Vs. UPENDRA SHARMA

JUDGEMENT

(1.) The appellant filed a suit for eviction of the respondent from the suit premises. The suit was decreed by the trial court. The appellate court has dismissed the suit. Hence this second appeal.

(2.) The plaintiff-appellant claimed that he required the suit premises for his own use, bona fide and in good faith. This has been negatived by the lower appellate court. The plaintiff further claimed that the defendant had made default in payment of rent and, as such, he was entitled to a decree for his eviction, under the provisions of Section II of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The appellate court has found that there was default as claimed by the plaintiff. It, however, dismissed the suit on the ground that the notice under Section 106 of the Transfer of Property Act had not been served in accordance with law.

(3.) Learned counsel for the appellant contends that the lower appellate court has erred in law in holding that it was for the plaintiff to prove that the notice under Section 106 of the Transfer of Property Act had to be tendered or delivered to a person having authority on behalf of the defendant. Having heard learned counsel for the parties I am of the view that the court below has not correctly appreciated the legal position in regard to notice under Section 106 of the Transfer of Property Act and, in the circumstances, it would be just and proper to remand the case to the lower appellate court after stating what, in my view, is the correct position in law.