N.N. Sharma, J.
1. This revision is directed against the judgment and decree of Sri R. K. Rastogi, IV Addl. District Judge, Jhansi dated 7-1-1984 who decreed plaintiffs' suit while functioning as Judge Small Cause Court.
2. It was a suit for ejectment and recovery of arrears of rent and damages for use and occupation.
3. It was averred that defendant was tenant of the shop in dispute belonging to plaintiff No. 1 on a monthly rent of Rs. 200/-. Tenancy used to commence from the first date of every month of English calendar and used to expire on the last date of the month.
4. Rent remained unpaid from 1-5-1980 up to 30-10-1980 despite notice dated 5-11-1980 served on defendant on 12-1 1-1980. It was also a notice to vacate the premises and determine the tenancy. Defendant neither paid the rent nor vacated the premises; Hence the suit.
5. Pending the proceedings plaintiff No. 1 sold the disputed shop to her son, plaintiff No. 2.
6. Defendant contested the suit on the ground that agreement was to pay rent at the rate of Rs. 100/- per month; Rs. 200/- per month were payable in case the walls of the shop were made pucca; plaintiff did not carry out the part of her agreement despite demand pressed by the tenant who had already paid the rent up to 1-5-1980; tenant also served a notice on 16-6-1980 through his Advocate on plaintiff to carry out her promise; she did not comply. The notice of demand dt. 5-11-1980 was invalid and did not terminate the tenancy; no rent was due.
7. Learned trial Judge scrutinised evidence adduced by the parties and found under issue No. 1 that the rate of rent was Rs. 200/- per month; he further found under Issue No. 2 that the defendant was a defaulter in payment of rent. He further found under Issue No. 3 that defendant did receive notice dt. 5-11-1980; he further found that the said notice was valid; he further found that the plaintiffs were entitled to the reliefs sought.
8. Aggrieved by this decision defendant has filed this revision.
9. I have heard learned counsel for the parties and perused the record.
10. On behalf of revisionist it was argued that notice dt. 5-11-1980 sent by plaintiffs was not served on defendant.
11. In this connection it was pointed out that defendant in his statement denied the receipt of the notice ; the postman who served notice original of which is Ext. 1, sent through the registered post at the address vide postal receipt Ext. II was not examined; the acknowledgment due showing the receipt of the notice was not filed. Under the circumstances learned trial Judge erred in holding that the notice had been served on the tenant. It was further pointed out that although a notice to quit sent by registered post returned to the sender with the remark 'refused' is presumed to have been served on the addressee if the correct address is given it is also true that mere denial by the addressee was not always sufficient to rebut the presumption as held in Jamal Khan v. Haji Yusuf Ali reported in 1978 All LJ 993 but such presumption under Section 27 of General Clauses Act, 1897 or under Section 114 of Evidence Act could not be available to the land lady when the acknowledgment due is not on record; even the original notice is not on record; containing any endorsement of refusal.
12. In Amarnath v. Smt. Champa Devi, reported in 1978 All WC 84 : (1978 All LJ 44) notice to quit was sent by registered post and was received back with the endorsement 'refusal'. Address given on the envelop was correct. It was held that such presumption would be of service of notice but if the tenant stated on oath that no notice was delivered to him nor he refused to take any notice nor tenant was cross-examined nor there existed any circumstance on record on the basis of which his statement could be discredited. Such presumption of service of notice stands rebutted by statement of tenant. Ram Nakshatra Misra v. Girdhar Das Kashya reported in 1979 U.P.R.C.C. 5 was also cited on behalf of the revisionist in support of the contention that such presumption was rebuttable and when tenant rebuts it the burden shifts on landlord to prove the service. In the instantcase the tenant has rebutted the presumption successfully and the landlady could not successfully prove the service of notice by examining the postman or filing acknowledgment due showing the signatures of the tenant in token of receipt of the said registered letter.
13. I do not subscribed to this contention for the simple reason that the learned trial Judge who had an occasion to observe the demeanour of defendant disbelieved him on this point. The reasons given by learned Judge to hold the testimony of tenant incredible are cogent. In para-2 of his written statement the defendant did not dispute the service of notice on him; he further set out in para-9 of his written statement that the notice dt. 5-11-1980 sent by plaintiff was fictitious and without any basis and did not satisfy the requirements of Section 106 of Transfer of Property Act. This assertion could not have been put forward by the defendant in so many words in his additional pleas, if he had not actually received that notice. Under the circumstances his bald interested denial about the service of notice on him is not sufficient to displace the onus which lay on him to rebut the presumption available to plaintiff under Section 27 of General Clauses Act and Section 114(e) and (f) of Evidence Act. In summary of cases reported in 1980 All LR 136 : (1980 UPTC (NOC) 52) it was held that in a given case circumstances may be proved which may lead the Court to accept the mere denial of the defendant in rebuttal of the presumption but such a case, obviously, would depend upon the particular facts of the case. In Bharat Pandey v. IInd Addl. District Judge, Varanasi reported in (1984) 1 All Rent Cas 279 it was observed : -
'...In the case of Jamal Khan v. Haji Yusuf AH, 1978 All LJ 993 it has been laid down that the question whether the presumption under Section 114 of the Evidence Act or under Section 27 of the General Clauses Act is rebutted or not is always a question of fact and the Court should consider having regard to all the surrounding circumstances and the conduct of the parties concerned.......'
14. I respectfully agree with the said observations.
15. Under the circumstances I find that the testimony of defendant on this point was rightly discarded as incredible.
16. The next contention pressed before me was that notice Ext. I was invalid.
17. A look at notice Ext. I shall go to disclose that it contained demand of rent at the rate of Rs. 200/- per month stating that it was a monthly tenancy and rent from 1-5-1980 up to 30-10-1980 amounting to Rs. 1,200/- remained unpaid. It required the defendant to make the aforesaid payments within one month of the receipt of the notice. Clause 4 which is relevant in this connection is extracted below : --
'.......In default of payment of rent duringthe period aforesaid after occupation of the shop for a period of full 30 days you vacate the shop and put it in possession of plaintiff;......on expiry of the said period your status would be that of a trespasser only and you will be liable to ejectment and damages for use and occupation at the rate of Rs. 10/- per day....'
18. The contention of learned Advocate . for the revisionist was that the said notice was not proper notice to quit manifesting intention of terminating tenancy as was pointed out in Hakim Ziaul Islam v. Mohd. Rafi, reported in : AIR1971All302 . In that case notice which terminated the tenancy in praesenti and demanded possession of rented premises within a month of the receipt thereof was not held as a proper notice to quit.
19. Reliance was next placed upon Farooq Ahmad v. Muneshwar Bux Singh, reported in : AIR1972All155 which posited that if the notice was only for vacation of the premises and not for termination of the tenancy it was invalid. However, in that case the notice was not available nor its contents were proved. On the other hand it was held that the onus was on the defendant to prove the invalidity of the notice. So this authority does not help the defendant.
20. The next authority relied upon by the learned counsel for the revisionist has been reported in Kailash Saran v. Murli Manohar, 1968 All LJ 718. The facts were as below :-
The landlord gave a notice to his tenant in the following words : --
'You are hereby given notice that you should pay the entire amount of arrears of rent within one month of the receipt of the notice, otherwise, your tenancy shall be terminated and a suit for recovery of arrears of rent and for ejectment shall be filed against you, and you will be liable for damages and costs.'
21. After the service of the notice, the tenant failed to pay the arrears demanded. The landlord filed a suit for ejectment. The tenant contended that no notice under Section 106 of the Transfer of Property Act terminating his tenancy had been given and the notice served upon him was a notice demanding arrears of rent and, therefore, the suit for ejectment could not be decreed.
Held, that the notice in the instant case was not a notice under Section 106 of the Transfer of Property Act at all.'
22. It is obvious that in that case the notice was merely a notice of demand for arrears of rent and no intention was expressed to determine the tenancy or to demand possession over the disputed premises. So this authority is clearly distinguishable. The next authority relied upon by learned Advocate for the revisionist has been reported in Smt. Jilani Ikram v. Mahammad Idiris 1981 All Rent Cas 125. Relevant portion of notice of ejctment is extracted below : --
'My client under the circumstances does not want to keep you in her tenancy. My client therefore terminates your tenancy and calls upon you to vacate the accommodation in your tenancy and occupation on expiry of 30 days from the date of service of this notice on you when your tenancy comes to an end.'
23. Such notice was held as valid. It was further pointed out that such notice to be valid under Section 106 of the Transfer of Property Act must definitely and unequivocally terminate the tenancy of the tenant after the expiry of the notice as was reported in 1971 All. LJ. 752 Ram Bhusan v. Kalu Ram Chakravarty. In that case the notice was held as invalid. The notice was in these terms : --
'You are required to deposit Rs. 195/- as arrears of rent within one month of receipt of the notice, failing which you should vacate the portions of the premises which are in your tenancy on expiry of 30 days from receipt of the notice otherwise on expiry of the said period necessary legal proceedings will be taken against you.'
Obviously this notice did not contain unconditional and unequivocal terms so far as the intention of the landlord to terminate the tenancy was concerned.
24. The mere fact that the notice did not contain the date of termination of tenancy is not sufficient to invalidate it as was held in Ram Nath Angan, reported in (1984) 2 All Rent Cas 290. The relevant portion of the notice is extracted as below : --
'Chunki tum kiraya makan bawajood notice hamko ada Nahin Kartc ho, hamko tumahara makan me kirayedar kabiz rakhna manzoor nahin hai. Lehaza zariya notice haza tumko muttella kiya jata hai ki hamara makan 20 Sept. San 50 tak khali kar do aur hamara kiraya waji-bul-ada kar do, warna tumhare khilaf munasib charawaoi adalat majaz me kijayegi.'
This point came up for consideration before a Division Bench of this Court in Abdul Jalil v. Haji Abdul Jalil reported in : AIR1974All402 . In that case reliance was placed upon Hardley v. Atkinson, (1885) ILR 7 All 899 (FB) and Harihar Banerjee v. Ramshashi Rao, AIR 1918 PC 102. Various illustrations were given at page-405 to illustrate the form of the notices; Illustration(C) reads as below : --
'I do not want to keep you as my tenant, you are therefore given this notice and required to vacate the premises on the expiry of thirty days from the date of service of this notice on you.
'You are given this notice to quit or vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you'
In the instant case notice Ext. I squarely falls under Illustrations (C) and (F) and isa perfectly valid notice.
25. In Pyare Lal v. III Addl. District Judge, Allahabad reported in 1980 All U 643 it was observed at page-647 : --
'In my opinion, these decisions too are of no assistance. For, the notice under consideration does not contain a mere demand for possession without more. As I have mentioned above, the notice under consideration clearly requires the tenant to vacate and deliver up possession to the lessor within thirty days of the notice, failing which, it states, the lessor would be constrained to file a suit for the ejectment of the petitioner. Such a notice is simiar to the notice contemplated under illustration F mentioned in the case of Abdul Jalil : AIR1974All402 (supra). U accords with requirements of Section 106 of the T.P. Act as regards the period. It will hence validly determine the tenancy on the expiry of the period of the notice under Section 111(h).'
26. In Budh Sen v. Rahiman reported in : AIR1978All549 , relevant portion of the notice ran as below (at page-550) :
'Aap ko mujhe kiraya 21-6-1967 lagayat 20-3-1968 tak ka kiraya Rs. 54A alawa water tax wa sood aap key jummey wajib hae. Aap notice pahunchane ke ek maah men kiraya wa sud ada kar den warna default ho jayega aur yasi sural me aap ko wajib hae ki ek maas makan men qabiz wa keakhil rah kar qabza hamarey men deiden aur makan ki halat khasta aur najuk hae, kuchh hissa gir bhi gia hai isliye khali kar deejiya warna miyad guzar ney notice aap key khilaf karrwai dakhi was wasuli kiraya adalat me kee jawagi.'
27. While construing this notice it was held at page-549 : --
'In the notice the apellant has clearly expressed an intention that he did not wish the respondent to continue in possession of the premises after the expiry of the period of one month. It is true that in notice in question it has not been stated that the tenancy of the defendant-respondent was being terminated. However, if an intention to terminate the tenancy can be clearly discerned by construing the words used in the notice as a whole, the mere fact that the expression that tenancy was being terminated is not used, would not render the notice invalid. The language which has been used in the notice given by the appellant to the respondent, does unmistakably evince an intention on the part of the plaintiff-appellant not to continue the tenancy of the respondent. The notice would validly terminate the tenancy of the respondent.'
28. I respectfully agree with these observations.
29. In Mohammad Idris Mian v. Doman Sah, reported in : AIR1978Pat82 it was observed : --
'Where the landlord asked the lenanl in the notice to quit, after slating that the tenant had failed to pay the rent and the house was being required by the landlord for his personal use, to vacate the house, the notice would not be invalid merely because it was not specifically stated therein that the tenancy was terminated.'
30. In Lakshmi Shanker Srivastava v. Dr. J.G. Sharma reported in 1980 All Rent Cas at p. 46 it was observed : --
'Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed utres magis vaic at quam prereat. 'The validity of notice to quit', as pointed out by Lord Justice Lindley L.J. SIDE botham v. Holland ought not to run on the splitting of a straw. 'It must not be read in a hyper critical manner, nor must its interpretation be affected' by padagogic pedantism or over refined subtlety, but it must he construed in a common sense way.'
31. Thus it is obvious that in view of all these authorities notice to quit need not be worded with the accuracy of a plea. In the instant case, having regard to the guiding principles enumerated above, notice Ext. I does satisfy the requirements of Section 106 of the Transfer of Property Act.
32. The last contention was that rate of rent was R. 100/- per month and not Rs. 200/-per month. In this conception learned trial Judge believed the statements of P. W. 1, Smt. Sushila and P. W.2, Priya Saran who testfied that the rate of rent was Rs. 200/- per month and not Rs. 100/- per month. This testimony was materially corroborated by Ext.3 receipt for payment of rent signed by the defendant himself for the period 16-4-1975 to 15-8-1975. Rent was paid at the rate of Rs. 200/- per month. There was nothing in the receipt to show that this rent was contingent on construction of shop as Pucca. Learned trial Judge rightly discarded the testimony of D.W.1 on this point. It is highly improbable to believe that from the inception of tenancy up to June, 1980 the defendant went on paying rent at the rate of Rs. 200/- per month instead of Rs. 100/- per month on the off chance that the shop would be constructed Pucca despite such long default in carrying out her promise by the landlady.
33. Learned counsel for the revisionist pointed out that Smt. Sushila P.W.1, admitted in her own statement that there was rent-note which was in her possession. She did not file the same for the simple reason that such condition was specified therein. Smt. Sushila has denied this fact on oath. That rent-note was not summoned. However, learned counsel for the revisionist pointed out that in Gopal Krishnaji v. Mohammad Haji Latif reported in : 3SCR862 it was held that where a party in possession of best evidence did not file the same the Court could draw an inference against such party notwithstanding that onus of proof did not lie on him.
34. In Ramrati Kuer v. Dwarika Prasad Singh reported in : 1SCR153 it was observed at page 1137 : --
'It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the Court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts.'
35. So there was sufficient evidence on record about rate of rent which was rightly believed by the learned trial Judge. Such evidence could not be out-weighed by a mere presumption under Section 114, Illustration (g) of the Evidence Act which learned trial Judge refused to raise in this case for the reasons given above.
36. Moreover finding of fact based on evidence is not to be disturbed by this Court when it is not shown to be perverse or unjust.
37. In the result revision is dismissed with costs. The impugned judgment and decree are affirmed. One month's time is allowed to the defendant from this dale to vacate the disputed premises subject to payment of the decretal amount within a fortnight from today. Interim stay order dated 30-1-1984 is hereby vacated.