V.K. Bali, J.
1. Plaintiff (hereinafter to be referred : as landlord) filed a suit for possession and for recovery of rent against respondent Anil Kumar Sharma (hereinafter to be referred as tenant) mainly on the ground that he was entitled to seek eviction of the tenant without assigning any reason as the shop, subject-matter of tenancy, was constructed less than ten years prior to filing of the suit and was, therefore, exempt from the provisions of the Rent Restriction Act. In the suit that he filed, he also referred to a suit bearing No. 284 dated 4.6.1983, which he had previously filed in the Court of the Sub-Judge Ist Class, Faridabad, and which in the ultimate analysis was compromised during the pendency of the appeal before the Additional District Judge, Faridabad. The said suit was stated to have been compromised on enhancing the rent to Rs. 300/- per month and on tenant agreeing to make payment of the rent at that rate regularly and in case of default for continuous period of three months, his liability to incur eviction. Further, the compromise also provided that the previous rent was to be paid by way of instalments and in case of default of four months the tenant was again liable to be evicted. The grounds for eviction in the present suit, were also nonpayment of rent and sub-letting, but at present we are concerned only with the first ground, indicated above. Before filing the suit, the. landlord issued a notice under Section 105 of the Transfer of Property Act asking his tenant to vacate the shop and hand over the vacant possession to him. The said notice was given on 4th December, 1986, and as per the record of the case the tenant is stated to have refused to receive the said notice on 17th December, 1986.
2. The case was contested by the tenant on various grounds and the pleadings of the parties gave rise to the issues, which have been mentioned in paragraph No. 3 of the judgment passed by the First Appellate Court. After resultant trial, the Sub-Judge decreed the. suit directing the tenant to vacate the premises. The tenant being aggrieved against the said judgment and decree passed by the trial Court, carried an appeal before the Additional District Judge, which was dismissed. This is tenant's second appeal in this Court.
3. The main contention of the learned counsel appearing for the tenant-appellant is that notice under Section 106 of the Transfer of Property Act, which was a necessary prelude for instituting the suit of the present kind was not proved to have been served or properly served upon the tenant The endorsement of refusal dated 17th December, 1986, alone could not prove that a notice under Section 106 of the Transfer of Property Act was issued and the same was refused to be accepted by the tenant. In any case, contends the counsel that when the tenant had appeared in the witness box and categorically stated that he had not refused any notice sent by the landlord, the presumption that initially might have been for issuance of notice under Section 106 of the Transfer of Property Act, stood sufficiently rebutted. In such a situation, the tenant ought to have led evidence in rebuttal to prove that the endorsement made by the Postman on the registered letter of refusal was not correct and inasmuch as the Postman was not examined, it would be deemed that the landlord had not served any notice. The learned counsel for the tenant for his aforesaid stand relies upon Puran Chand v. Smt. Lajya Wati (1972) 74 P. L. R. 930. as also Gian Kaur and Ors. v. Dilbagh Singh, (1988-1) 93 P. L. R. 268.
4. The learned counsel appearing for the respondent-landlord seriously contests the proposition advanced by the learned counsel for the appellant.
5. I have heard the learned counsel for the parties and have gone through the records of the case carefully.
6. It is true that the tenant appeared as his own witness and stated that no notice was ever sent to him by the landlord nor he refused to accept any notice that might have been sent to him. It is also true that the presumption that is attached to letter sent by Registered Acknowledgment due at correct address is rebuttable, but in view of the judgment rendered by the Hon'ble Supreme Court of India in M/s. Green View Radio Service v. Laxmibai Ramji and Anr. A. I. R. 1990 S. C. 2156. such a presumption is required to be rebutted only if the statement of the addressee is believed. If the statement of the tenant that he did not receive the notice or that he did not refuse to accept the same is believed then of course it was incumbent upon the landlord to produce the Postman to substantiate his plea with regard to refusal of the notice by the tenant. However, in the facts of the present case, I am not inclined to believe the statement of the tenant. The tenant while examining himself as his own witness stated that he was not living at the address given in the notice, i.e. House No. 669, Sector 10, Housing Board Colony, Faridabad, but was living in a different house, i.e. House No. 2683, Sector 7-A, Housing Board Colony, Faridabad. It is on the strength of the aforesaid statement that he wishes the Court to believe that he had not refused to accept the notice stated to have been sent to him by the landlord. It has been mentioned in the earlier part of the judgment that before filing the present suit, the parties to the litigation had entered into a compromise in the earlier litigation on 2nd March, 1985. Admittedly, the tenant while signing the compromise had given his address as House No. 669, Sector 10, Faridabad. It is not his case that although on 2nd March, 1985, he was residing at House No. 669, Sector 10, Faridabad, thereafter he shifted to House No. 2683, Sector 7-A, Housing Board Colony, Faridabad.
7. Besides, the landlord brought on records of the case voters' lists for the years 1988 and 1989. It is true that the aforesaid two voters' lists have been only marked and not exhibited, but a perusal of the said voters lists show that the same are certified copies issued by the Election Naib Tehsildar, Faridabad, and, thus, can be taken into consideration. In the aforesaid voters' lists the tenant is shown to be residing both in the years 1988 and 1989 at House No. 669 along with his wife and two sons. In view of what has been said above the statement of the tenant that he was not living at the address mentioned in the notice cannot be believed.
8. At the fag end, the learned counsel for the tenant also argued that inasmuch as rent for the month of December, 1986, was admittedly accepted by the landlord, there would be a waiver on the part of the landlord to seek for his eviction, particularly when the said acceptance of rent was after terminating the tenancy vide notice dated 4th December, 1986. I do not find any force in this contention of the learned counsel either. Admittedly, the tenancy was to expire from 1st January, 1987. The landlord under the provisions of Section 106 of the Transfer of Property Act had necessarily to give notice of fifteen days ending with the last date of the calender month. In these circumstances, he was well within his rights to accept the rent for the month of December, 1986, and file eviction suit against the tenant in January, 1987.
9. For the reasons recorded above, this appeal is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.