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TMI Blog1969 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e registered notice issued by the petitioner to the respondent has been returned undelivered. The learned Munsiff found that a copy of the notice was affixed on a conspicuous part of the premises. He also found that one of the notices was sent by certificate of posting and therefore a presumption of service of the notice arises under Section 114 of the Evidence Act. The learned Munsiff found that the petitioner had issued a valid notice to the respondent to quit. In the result, he allowed the petition for eviction. 3. On appeal in H. R. C. A. 11 of 1968 the learned First Additional District Judge, Bangalore concurred with the finding of the trial court that the petitioner required the premises reasonably and bona fide for her own use. On the question of hardship, the learned District Judge found against the tenant. He took the view that in the circumstances of the case, there was no valid termination of the tenancy in accordance with law; thus the petitioner had no right to seek eviction of the respondent-tenant and therefore he allowed the appeal and dismissed the petitioner's application for eviction. She has now filed this revision petition. 4. The most important quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of his own and he gets a rent of ₹ 120 per mensem. The petitioner purchased the premises with a view to occupy the same herself. After purchasing the same she appears to have notified the tenant by a registered letter marked as Ex. P-4 (a) dated 29-8-66 wherein she has stated that she has purchased the house on 26-8-66 and that the tenant should attorn to her. There is material in the evidence of the respondent to show that he had an intention of purchasing this property himself. In any event, it is clear from Ex. P-4 envelope containing Ex. P-4 (a) that the letter was returned with an endorsement that he was not found at the leased premises. Therefore, the petitioner issued the second notice on 10th September 1966 again asking him to attorn to her. This letter came back with an endorsement that he was not found at the delivery time. Again, the petitioner sent a letter Ex. P-6(a) addressed to the tenant through his official superior. Even this letter came back with an endorsement not found . It is useful to refer to the fact that in Ex. P-6 (a) the petitioner's counsel through whom notices were issued, has stated that it is the third notice that is being issued to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt terminating his tenancy it must be presumed that there has been due service of the notice of termination of the tenancy and therefore the petitioner is entitled to succeed. He also invites my attention to the provisions in Para 2 of Section 106 of the Transfer of Property Act which prescribes that the notice of termination referred to in Para 1 must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his resident, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. It is pointed out that the notice has been sent by post to the party, i. e. lessee in this case who is intended to be bound by it. Further it is contended that since the registered notices sent to the respondent-tenant have come back to the petitioner without being delivered personally to him, the petitioner affixed the notice to a conspicuous part of the property as delivery personally to the tenant was not practicable. 6. There is no dispute that the petitioner has sent several notices by regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements referred to earlier, in law, it must be deemed that there is due service of the notice of termination of the tenancy. 7. The next submission is that para 2 of Section 106 of T. P. Act does not prescribe that the notice of termination should be sent by registered post; it could also be sent by ordinary post. In this case, there is un- impeachable evidence that the petitioner's counsel sent the notice of termination under certificate of posting . The certificate of posting bearing the postal seal is marked Exbt. P-8. Therefore, a presumption arises under Section 114 of the Evidence Act that there has been due service. In support of this _contention the learned counsel for the petitioner drew my attention to a decision reported in Sukumar Guha v. Naresh Chandra Ghosh, AIR1968Cal49 , wherein at paragraph 13 it has been observed as follows:-- In view of the history of legislation that added the relevant phrase in Section 106, T. P. Act and the language of the phrase that says only sent by post in the relevant part, I unhesitatingly reject that argument of Mr. Mukherjee and hold that though presumption under Section 27, General Clauses Act can only arise when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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