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Shri Nath Vs. Gopi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2512 of 1959
Judge
Reported inAIR1964All416
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Evidence Act, 1872 - Sections 114
AppellantShri Nath
RespondentGopi Chand and ors.
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateNarendra Kumar, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - notice - section 106 of transfer of property act, 1882 - thirty days notice given to vacate the premises - there is no difference between a notice given or asking the tenant to vacate within 30 days -time allowed expired on the midnight of the 30th day and the tenant can occupy the accommodation up till the end of 30th day - held, similarity in both cases. - .....denied that any notice of demand has been served on them and also challenged the validity of the notice terminating the tenancy. both the courts below held that the defendants had refused the notice of demand and that the notice terminating the tenancy was valid. the defendants have come to this court in second appeal.2. mr. k. c. saksena learned counsel for the appellant urged the following arguments in support of this appeal. first he contended that the notice under section 106 of the transfer of property act terminating the tenancy was invalid as it asked the tenants to vacate 'within 30 days' instead of giving what learned counsel called a clear one month's notice. according to learned counsel, within thirty days means less than thirty days. i do not agree. there is no difference.....
Judgment:

S.S. Dhavan, J.

1. This is a defendant's second appeal from the concurrent decisions of the Courts below decreeing the landlord's suit for his ejectment. The plaintiff-landlord alleged that the defendants did not pay rent for several months in spite of service of a notice of demand and the plaintiff thereupon filed this suit after terminating their tenancy. The defendants denied that any notice of demand has been served on them and also challenged the validity of the notice terminating the tenancy. Both the Courts below held that the defendants had refused the notice of demand and that the notice terminating the tenancy was valid. The defendants have come to this Court in second appeal.

2. Mr. K. C. Saksena learned counsel for the appellant urged the following arguments in support of this appeal. First he contended that the notice under Section 106 of the Transfer of Property Act terminating the tenancy was invalid as it asked the tenants to vacate 'within 30 days' instead of giving what learned counsel called a clear one month's notice. According to learned counsel, within thirty days means less than thirty days. I do not agree. There is no difference between a notice asking a tenant to vacate within 30 days and another giving him 'thirty days time' to vacate, because in both cases the time allowed expired on the midnight of the 30th day and the tenant can occupy the accommodation upto the end of the 30th day but not beyond it. Counsel was asked to specify in each case the last moment on which the notice will expire and he had to concede ultimately that each will expire on the midnight of the 30th day.

3. Secondly Mr. Saksena contended that the finding that the notice of demand was served on thedefendants is erroneous as it was based on a presumption drawn from the endorsement 'refused' on the acknowledgment receipt. But it is not correct that the finding is based only on this endorsement. The plaintiff gave evidence that he accompanied the postman and that the notice was refused by the defendant in his presence. The lower appellate Court believed his testimony and its conclusions are binding on this Court in second appeal.

4. No other point was urged.

5. The appeal is dismissed with costs.


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