Rahul Manhas and anr. Vs. Virinder Kumar Sriwastva - Court Judgment

Sunil Hali, J.

1. A suit for ejectment was filed by the petitioners/appellants against the defendant/respondent or, the ground for having committed three defaults. An amount of Rs. 1500/- was claimed as rent from October, 1984 to July, 1985. Notice was sent to the defendant on 3.8.1985 under Transfer of Property Act. Notice was acknowledged on 14.8.1985 as per endorsement on the acknowledgment receipt. The suit was filed on 28.4.1966 and the decree was passed by the trial court on 28.12.1998. The trial court allowed the suit by holding that defendant had committed three did defaults of two months each of non payment of rent within a period of 18 months.

2. Against the order of the trial court, an appeal was preferred before the 2nd Addl. District Judge, Jammu. The appellate court allowed the appeal and dismissed the suit on the ground that no notice was received by the defendant under Section 106 of Transfer of Property Act. The findings of the appellate court reveals the, service of the notice was required to be proved by the plaintiffs and in this connection statement of the post man had to be recorded. It is observed by the appellate court that no presumption can be drawn that notice was received by the defendant. In these circumstances, present Civil 2nd Appeal has filed by the appellant.

3. At the time of admission of this appeal, this Court has framed following substantial question of law:

Whether presumption of service under Section 27 of the General Clause Act 1897 read with Section 114 of the J&K; Evidence Act in respect to letter sent through registered post is rebutted on the sole statement of defendant without disputing the correctness of the address

4. I have heard learned Counsel for the parties and perused the record.

5. Mr. Wazir, learned Counsel for the appellants has stated that service of the notice has been proved by the plaintiffs. He states that posting of the notice and its service at the address of the defendant through registered post is not in dispute. He also states that there is sign of defendant on the acknowledgment. In case defendant denied his signature on the acknowledgment, the burden shifts on him to prove that signature on the acknowledgment did not belong to him.

6. On the other hand, Mr. Gupta, learned Counsel for respondent states that once the defendant had denied his signature on the acknowledgement, the burden to prove that the notice has been served shifts on the plaintiff.

7. It is not in dispute that Notice has been posted and sent on the address of defendant's residence. It is also not in dispute that notice was sent by registered post and there is signature on the acknowledgment.

8. The question that arises is whether the notice posted on the correct address, and posted through registered post been admitted, can mere denial by the respondent that he has not received the notice; rebut the presumption raised by the plaintiff.

9. Section 114 (f) of the Evidence Act clearly mentioned that any act done which is in the common course of business and which has been followed shall be presumed to have been done in the said manner.

10. The posting of the letter on the proper address and its service through registered post having been admitted, there is presumption that letter has been received by the addressee-respondent. In case he denied the same, the burden shifts on him to rebut such presumptions.

11. Mr. Wazir has relied on the judgments - AI RCJ 1991(2) 164, entitled, Ranvi Jai Singh v. Joginder Singh and Ors. The judgment states that acknowledgement due receipt of notice bearing signature of tenant, denial of by the tenant, mere denial of the same is not enough, burden lies upon him to prove that the same are not his signatures.

12. Another judgment relied by Mr. Wazir is 'Al IRCJ' 1980(2), entitled, Madan Lal Sethi v. Amar Singh Bhalla-543. As per this judgment, mere denial by the tenant does not rebut the presumption raised under Section 114 (f) of India Evidence Act. Tae tenant must have produced some other circumstances to show that the notice never reached the addressee. Mere statement of the tenant would not rebut this presumption.

13. I hold that notice under Section 106 of the Transfer of Property Act was duly served to the defendant. Consequently the findings of the appellate court are set aside and the suit of the plaintiff is decreed. This appeal is, accordingly, allowed. Disposed of.