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Mushiyat Ullah Vs. Abdul Wahab - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Civil Appeal No. 89/1971
Judge
Reported inAIR1972All539
ActsUttar Pradesh General Clauses Act, 1904 - Sections 27; Transfer of Property Act, 1882 - Sections 106; Evidence Act, 1872 - Sections 114
AppellantMushiyat Ullah
RespondentAbdul Wahab
Appellant AdvocateS.M. Yusuf, Adv.
Respondent AdvocateS.M. Fakhrurzama, Adv.
DispositionAppeal dismissed
Excerpt:
civil - service of notice - section 27 of u.p. general clauses act, 1904 and section 114 of evidence act, 1872 - presumption as to service of notice - argument that section 27 implies that notice must be served at permanent address - held, presumption arises even if notice is not sent to permanent address. - - phulwati, 1970 all wr (hc) 198 =(air 1970 all 446 (fb)) that when it is found that a notice under section 106 of the transfer of property act was sent by registered post by the landlord to the correct address of the tenant, but was received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take the notice on a particular day, the presumption under section 114 of the evidence act as well as section 27 of the..........presumption of service of the notice under section 114 of the evidence act and section 27. of the general clauses act and decreed the suit for ejectment with costs. on appeal, the judgment and the decree of the trial court were affirmed and, therefore, the defendant comes to this court.3. the appeal raises a short question. the learned counsel for the appellant canvassed only one point: it was urged that the courts below were wrong in raising the presumption of service of notice under section 106 of the transfer of property act on the basis of section 27 of the u. p. general clauses act and section 114 of the evidence act. the learned counsel pointed out that although it was held by a full bench of this court in ganga ram v. smt. phulwati, 1970 all wr (hc) 198 = (air 1970 all 446 (fb)).....
Judgment:

Om Prakash Trivedi, J.

1. This is the defendant's second appeal.

2. This dispute in this case relates to a house situate in the district of Gonda of which the respondent Abdul Wahab is the landlord and in which the appellant Mushiyat Ullah has been living as a tenant on his behalf. The respondent brought a suit against the appellant Mushiyat Ullah for ejectment of this house and for recovery of arrears of rent alleging that he had sent a registered notice on 10-4-1969 at the Gorakhpur address of the appellant which was received back with an endorsement of refusal by the postman. The suit was resisted, on a variety of grounds, one of. which was that no notice, as alleged for the respondent-plaintiff, was ever served upon the appellant nor was, it ever refused by him. It is not necessary for the purpose of this appeal to notice the other grounds of defence. The trial Court raised a presumption of service of the notice under Section 114 of the Evidence Act and Section 27. of the General Clauses Act and decreed the suit for ejectment with costs. On appeal, the judgment and the decree of the trial Court were affirmed and, therefore, the defendant comes to this Court.

3. The appeal raises a short question. The learned Counsel for the appellant canvassed only one point: It was urged that the courts below were wrong in raising the presumption of service of notice under Section 106 of the Transfer of Property Act on the basis of Section 27 of the U. P. General Clauses Act and Section 114 of the Evidence Act. The learned Counsel pointed out that although it was held by a Full Bench of this Court in Ganga Ram v. Smt. Phulwati, 1970 All WR (HC) 198 = (AIR 1970 All 446 (FB)) that when it is found that a notice under Section 106 of the Transfer of Property Act was sent by registered post by the landlord to the correct address of the tenant, but was received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take the notice on a particular day, the presumption under Section 114 of the Evidence Act as well as Section 27 of the General Clauses Act about service of such a notice can be rightly made in law, but the learned Counsel points out that it was held by the Full Bench that this presumption of law under Section 27 of the General Clauses Act and the presumption of fact under Section 114 of the Evidence Act were not conclusive but were rebuttable presumptions and according to the learned Counsel the error of the Lower Appellate Court lays in not applying its mind to the question whether the presumptions which arose under Section 27 of the General Clauses Act and Section 114 of the Evidence Act had been rebutted by the defendant-appellant's sworn statement. The second submission of the learned Counsel in this connection is that no presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act could arise in law in the present case as the property in dispute was situate in the district of Gonda, which was the place of permanent residence of the appellant, and the notice admittedly was not sent by his permanent address but by the Gorakhpur address. In other words, the argument is that for a presumption to arise under Section 27 of the General Clauses Act and Section 114 of the Evidence Act, the notice must be shown to have been sent by permanent address of the tenant.

To take the last point first, I find no warrant for the submission that the presumption which arises under Section 114 of the Evidence Act and Section 27 of the General Clauses Act must be confined to cases where the registered notice was sent by a permanent address of the tenant and was received back undelivered by the landlord with an endorsement of refusal by the postman. At any rate, this argument is not supported by any observation made in the Full Bench case of Ganga Ram v. Smt. Phulwati (Supra). In that case the Court held that the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act arises whenever a notice by registered post is sent by the landlord to the correct address of the tenant and has been received back undelivered with an endorsement of his refusal by the post office that the addressee had refused to take the notice on a particular date. Section 27 of the U. P. General Clauses Act also does not contain any words which may support the argument that the presumption arises only when the notice is sent by permanent address of the addressee by registered post. The wordings of Section 27, on the other hand, are 'the service shall be deemed to be effected by properly addressing.....'

The words 'properly addressing' are so wide as to imply any correct address of the tenant for the time being. It cannot be disputed that the notice Ext. 4 was sent by the correct Gorakhpur address of the appellant. The appellant admitted in his cross-examination that he is the agent of a Tobacco factory and has to remain out for long periods and in connection with his itinerary, he visits Gorakhpur also and stays there at a house Nafis Manzil in Moh. Turkmanpur. It is, therefore, clear that the notice was sent by the appellant's correct Gorakhpur address. That being so, the presumption of service arose under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.

4. Turning to the second submission no doubt the lower appellate Court did not in so many words hold that the presumption which arose in this case had not been rebutted, but made observations which implied that the statement of the defendant-appellant in denial of service or refusal of the notice was disbelieved. The only evidence which was produced on the appellant's side consisted of his own statement. The defendant denied having received any notice or having refused any notice. He was a highly interested witness and this statement amounted only to a bare denial of the respondent's case of refusal of the notice. A bare denial does not amount in law to sufficient evidence so as to constitute rebuttal of the presumption. There was no suggestion made by the defendant in his statement that he was not present at Gorakhpur on 18th April, 1969 when the endorsement of refusal was made by the postman. I, therefore, hold that there was no rebuttal of the presumption which was raised in this case. Similar view was taken by this Court in Salik Ram Sahu v. Bindeshwari Ram Rauniyar, 1965 All LJ 839 and Asa Ram v. Ravi Prakash, 1966 All LJ 421. I find no force in this argument that the presumption about service of notice was incorrectly raised by the Lower Court.

5. The appeal fails and is, therefore, dismissed with costs.


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