Defendant defaulted in payment of rent and accordingly plaintiff sent a notice u/s. 106 of the Transfer of Property Act under registered post with A/D asking the defendant to quit and vacate the suit premises on expiry of the month of Agrahayan 1395 B. S. The defendant refused to accept such notice and did not also vacate the suit premises. Accordingly, the suit for ejectment and recovery of khas possession with consequential reliefs was filed.
The Appellant/defendant contested the said suit by filing a written statement denying the material allegations of the plaint and contending inter alia that the defendant was a tenant under the plaintiff’s father Haripada Banerjee and that on the death of Haripada Banerjee, all his heirs became joint landlords and that the plaintiff was not the sole landlord and had no authority to file said ejectment suit as the sole landlord. It was further alleged that defendant did not receive any notice and that plaintiff managed to obtain a postal endorsement “refused” in collusion with postal peon.
The Trial Court framed several issues including an issue as to whether there was relationship of landlord and tenant between the parties and whether the notice u/s. 106 of the Transfer of Property Act was legal, valid and sufficient and was duly served upon the defendant. After hearing the Trial Court decreed the suit for ejectment observing that the defendant was a tenant under the plaintiff and that the notice u/s. 106 of the Transfer of Property Act was legal, valid and sufficient and that on account of refusal on the part of the defendant to accept the same it amounted to good service.
The Hon’ble Court observed that now it is settled law that once a notice is sent under registered post with A/D with proper stamp and proper address and is returned with an endorsement of the postal peon “refused” then there is a presumption of tender and refusal amounting to a good service of notice. However, said presumption is rebuttable. If the addressee denies said tender and alleged refusal on his part in his pleadings as well as in his evidence and the same is found believable to the Courts then the presumption of service will be deemed to be sufficiently rebutted. In that case, the onus will shift back to the addressor for proving such alleged tender and refusal by calling the postal peon to the witness box.
In the case in hand, admittedly the appellant tenant took specific plea not only in his written statement but also in his evidence that there was no tender of said notice to him by the postal peon and as such there was no question of refusal on his part to accept the same. The Courts below, however, refused to accept his version on the ground that he did not file any document to show that he was present in his office on that day. The respondent landlord has also admitted that the appellant tenant was an employee of the Government mint at Alipur. It also came out from evidence that the defendant remained absent from the suit shop room during the working period of the working days and that a barber shop was run therein through his employee Gour Chandra Pramanik. A Government employee is expected to be in his office during the office hours in a working day, in absence of any evidence to the contrary. Neither of the parties produced any evidence to show that on the relevant date of alleged tender or alleged refusal the appellant tenant was present in the said suit shop by not going to his office.
During hearing the learned counsel for the appellant tenant drew the attention of the Court to the cross-examination of the appellant landlord wherein he categorically stated that the postal peon told him that he went to the defendant’s shop room but he did not meet with him. According to the counsel, said admission of the plaintiff coupled with denial on the part of the appellant tenant belied the story of alleged tender by the postal peon to the defendant or refusal on the part of the defendant.
Section 106 of the Transfer of Property Act requires that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence/place of business or if such tender or delivery is not practicable, it be affixed to a conspicuous part of the property. In the case in hand, only one notice to quit was sent to the appellant tenant under registered post with A/D. It returned with the endorsement of the postal peon “refused”. The appellant tenant took specific plea not only in his written statement but also in his evidence that the postal peon did not tender any notice to him and accordingly there was no question of refusal on his part to accept the same. It also came out from evidence that the suit premises is a barber shop being run by appellant tenant through an employee Gour Chandra Pramanik. As such even in the absence of the appellant tenant if the postal peon tendered the notice to his employee Gour Chandra Pramanik to be refused to be accepted by Gour still it might amount to refusal on the part of the tenant treating it to be good service of notice. But there is no evidence to that effect also from the side of the respondent landlord. Rather the appellant tenant also examined said employee Gour Chandra Pramanik who categorically stated that on the relevant date i.e. 17-10-1988 postal peon did not visit said barber shop for service of the notice nor to speak of tendering the same to him. Said evidence remained unshaken in spite of cross-examination. In view of the aforesaid evidence on record it is palpable that the appellant tenant was able to rebut the presumption of due service in view of postal endorsement “refused” on the envelope of notice and that it was a duty of the respondent landlord to produce the postal peon on the dock to discharge the burden of proving the service of the notice.
Proper service of notice to quit is the very backbone of a suit of ejectment filed under the Transfer of Property Act. In this case, the deemed service of notice in view of postal endorsement “refused” is found to be not acceptable. As such, the Ejectment Decrees passed by learned Courts below banking on said deemed service of notice were not sustainable in law. As a result, the appeal was allowed.
