V.K. Khanna, J.
1. This is a defendant's second appeal arising out of suit for ejectment and also for recovery of arrears of rent.
2. According to the plaintiff's case, the plaintiff is a registered society and Sri Bishan Swaroop Gupta is its secretary duly authorised to file the suit. The defendant, according to the plaintiff is a monthly tenant @ Rs. 20/- per month who had been served with a registered notice dated 28-12-1969 under Section 106 of the T.P. Act by which his tenancy has been duly terminated and despite service of the notice he is not delivering the possession of the property in suit and hence the suit.
3. The aforesaid suit has been contested by the defendants on the ground that no valid notice has been served on him and further that the provisions of U.P. Act No. 3 of 1947 were applicable to the case and the defendant was not liable to eiectment, besides other pleas.
4. The trial court, besides other issues, framed issue No. 2 to the effect:
'Whether the plaintiff has served any notice of termination of tenancy upon the defendant. If so, whether that is a valid notice?'
On the aforesaid issue the trial court held that the notice which is alleged to have been served by the plaintiff was not a valid notice as it has not been proved that the person sending the notice was authorised to send the notice on behalf of the plaintiff. The plaintiff's suit was accordingly dismissed. Feeling aggrieved the plaintiff filed an appeal which has been allowed. The lower appellate court reversed the finding of the trial court and held after admitting additional evidence that the person sending the notice and filing the present suit on behalf of the plaintiff was authorised to send the notice and file the suit.
5. In the present second appeal the learned counsel appearing for the appellant has urged only one point. It has been argued that the alleged notice terminating the tenancy of the defendant has not been proved to have been served on the defendant. The learned counsel for the respondent, however, in connection with the aforesaid point raised by the learned counsel for the appellant has argued that the aforesaid point has neither been raised before the lower appellate court nor taken in the grounds of appeal in the present second appeal and thus the appellant should not be allowed to raise this point in this second appeal.
6. A bare perusal of the written statement filed by the defendant would show that the defendant had denied that notice has been served on him. A bare perusal of the issues framed by the trial court would clearly indicate that a specific issue was framed by the trial court on the aforesaid question of service of notice on the defendant. From the evidence which has been led by the parties it is also clear that the parties had led evidence on the point. It, however appears, that as the trial court while framing issue No. 2, has, in fact, incorporated two questions for determining in that issue i.e. service of notice on the defendant and also the validity of the notice, the trial court proceeded to decide the question regarding the validity of the notice first and held that the person sending the notice on behalf of the plaintiff was not authorised to send it and thus the notice was invalid. In view of the aforesaid finding, which was given by the trial court, the trial court did not record a further finding as to whether notice was in fact served on the defendant or not. The appeal was filed by the plaintiff and was confined only to the findings which had been recorded against the plaintiff. In the judgment given by the lower appellate court thus we find no mention of the aforesaid point. In my opinion, when a specific issue has been framed on the aforesaid question and when the parties had also given evidence on this point and also looking to the facts of the present case which have been enumerated above, the interest of justice requires that the defendant be allowed to raise this question in the present second appeal.
7. On the merits of the question raised by the learned counsel for the appellant it has been argued that defendant in his testimony has made a statement on oath that no notice was delivered to him by the postman and thus the defendant has rebutted the presumption of service of notice which could be raised against him under Section 114 of the Evidence Act. Reliance has been placed on certain decisions of this Court and also on a decision of the Supreme Court reported in P.V. Rao v. C.V. Ramana (AIR 1976 SC 869). It has been strenuously urged that the defendant has not been cross-examined by the plaintiff on the aforesaid question and thus the plaintiff has not been able to indicate any circumstance or any conduct of the defendant which could discredit his testimony.
8. Learned counsel appearing for the respondent has, however, urged that in view of the pronouncement of the Full Bench of this court reported in Gangaram v. Smt. Phulwati (AIR 1970 All 446), it should be held that the plaintiff has been able to prove the service of the notice on the defendant. It has been argued that the registered letter was sent to the correct address of the defendant and in case the defendant wanted to challenge the service of notice on him, he should have cross-examined the plaintiff on the aforesaid question and also should have produced the postman to prove that there was a collusion between the plaintiff and the postman for effecting service on the defendant.
9. As far as the decision given by the Full Bench of this Court in Ganga Ram's case, (AIR 1970 All 446) (supra), is concerned, the law which had been laid down is that it is not incumbent on the plaintiff to prove the endorsement of refusal of the notice sent by the registered post by producing the postman or other evidence in case the defendant denies service on him. A reading of the judgment in the aforesaid case would clearly indicate that the presumption which has to be raised is not an unrebuttable presumption and the defendant would be entitled to rebut such presumption.
10. The Supreme Court in the case of P. V. Rao (AIR 1976 SC 869) (supra), had an occasion to consider the precise question which is being raised in the present second appeal. After reviewing the authorities of various High Courts on the aforesaid question, the Supreme Court held:--
'The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had been not repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct'
The correct legal position seems to be, as laid down by the Supreme Court and by the Full Bench of this Court, that it is not necessary for the plaintiff in order to prove the endorsement of refusal by producing the postman. Even though the postman may not have been produced by the plaintiff, the presumption of service of notice and its refusal would be available to the plaintiff under the provisions of Section 114 of the Evidence Act and also under Section 27 of the General Clauses Act. The presumption which would thus be available to the plaintiff, would be a rebuttable presumption. It will, therefore, depend on the evidence which is led by the parties in each case to find out as to whether in a particular case on the evidence which is before the Court, the presumption which has been so raised against the defendant has been rebutted by him.
11. The crucial question which thus arises in the present case now is as to whether in the state of evidence which exists on the record the defendant can be said to have rebutted the presumption which had been raised against him. The defendant in the present case stated on oath that the postman has not served the notice on him. He has not at all been cross-examined on the aforesaid point by the plaintiff. The plaintiff's only witness has made a statement that he had not accompanied the postman. The only thing which the plaintiff has been able to point out is that the notice has been sent to the correct address of the defendant. The contention of the plaintiffs counsel that the defendant should have cross-examined the plaintiff on the aforesaid question and should have also produced the postman, in my opinion, is without any force. The plaintiff himself had not accompanied the postman for effecting the service and thus there was no question of cross-examinine the plaintiff on that question. The postman had made an endorsement of refusal on the notice and the defendant would not call a witness who was going to depose against him. It was for the plaintiff, in case he wanted to produce better evidence to produce the postman in evidence in order to belie the version of the defendant that he was not served. On similar facts this Court in the case of Shiv Dutt Singh v. Ram Dass, (1980 All LR 457) : (AIR 1980 All 280), held:--
'In the instant case the defendant clearly save out that the postman never came to him to offer this notice nor he refused to take it. Nothing was elicited in cross-examination to show that he was not telling the truth. He could not have examined the postman as he would not have deposed against his own endorsement and more so if it was done to oblige the plaintiff. The defendant could not have produced any other witness as that would have been stamped as got up evidence. As a party to the suit, having knowledge of the facts, he was bound to examine himself otherwise another presumption would have been raised against him. Therefore, the presumption of service in the circumstances of this case was amply rebutted by the solitary statement and the suit was bad for want of notice.'
Similar view has been taken by this Court in Hub Lal v. Bhudeo Prasad Sharma (1980 All LJ 437); Amar Nath v. Smt. Champa Devi (1978 All LR 90), Ram Nekshatra v. Girdhar Das Kashya (1979 (UP) RCC 5) and also by the Delhi High Court in Jagat Ram Khullar v. Battu Mal (AIR 1976 Delhi 111). In my opinion in the present case the defendant rebutted the presumption of service of notice against him by examining himself and deposing that the postman never served a notice on him. His testimony was not challenged by the plain tiff in the cross-examination. The plaintiff did not produce the postman or any other evidence to show that the defendant was not deposing the truth and that notice had, in fact, been served on him. The plaintiff having failed to prove that he had served notice of termination of tenancy under Section 106 of the T.P. Act on the defendant, the plaintiff's suit was liable to be dismissed on this ground alone.
12. For the reasons stated above, the present second appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the plaintiff's suit is dismissed. However, in the circumstances of the case the parties shall bear their own costs.