GUMANMAL Vs. KANWARLAL

JUDGEMENT

(1.) THIS is defendant's second appeal arising out of a suit for ejectment in respect of a shop situated in Jodhpur decreed against him by the two courts below.

(2.) LEARNED counsel for the appellant has raised two contentions. The first is that the notice of ejectment was not properly served. It appears that a notice dated 13-1-62 was affixed at the suit shop on the same date. The plaintiff's case is that it was not practicable to serve the notice on the defendant personally and consequently it was offered to his brother Mangilal who too refused to take it, and therefore, it was affixed at the shop. The posting of the notice at the suit shop is proved by the evidence produced by the plaintiff. The courts below accepted the plaintiff's version that the notice had been pasted and I do not see any reason to take a different view. LEARNED counsel for the appellant, however, urges that the notice had not been tendered to Mangilal as stated by P. W. 1 Kanwarlal. He has pointed out that there is clear variance between the pleading and the proof on this point. I find force in this contention. In the plaint it has been stated that the notice was tendered to the defendant. The endorsement contained on the notice Ex. 1 also recites the fact that the notice was offered to Gumanmal defendant. P. W. 1 Kanwarlal (plaintiff) when he came in evidence stated that the notice was offered to Mangilal brother of the defendant. Thus the plaintiff's case regarding tender of notice to Mangilal runs counter to the averment in the plaint as well as the endorsement contained in the notice Ex. i. The courts below do not seem to have noticed this glaring variation between he pleading and the proof. It is true that the defendant's son Devichand ( D. W. 2 ) has admitted that the defendant mostly resides in village Kharu Bera and the business at the shop is mostly looked after by him and his uncle Mangilal. If the plaintiff's case of tender of notice to Mangilal were accepted, I agree with the court below that it would have amounted to a sufficient tender in the eye of law. But since the plaintiff's case that the notice without there being evidence of tender of the same to one of the defendants family or servants at his residence would be sufficient compliance with the provisions of sec. 106 of the Transfer of Property Act.