C.M. Lodha, J.
1. This is a defendant-tenant's second appeal arising out of a suit for ejectment in respect of a shop situated in Jodhpur decreed against him by the two courts below.
2. Learned counsel for the appellant has raised two contentions: The first is that the notice of ejectment was not properly served. It appears that a notice dated 18-1-62 was affixed at the suit shop on the same date. The plaintiff's case is that it was not practicable to serve the notice on the defendant personally and consequently it was offered to his brother Mangilal who too refused to take it, and, therefore, it was affixed at the shop. The pasting of the notice at the suit shop is proved by the evidence produced by the plaintiff. The courts below accepted the plaintiff's version that the notice had been pasted and I do not see any reason to take a different view. Learned counsel for the appellant, however, urges that the notice had not been tendered to Mangilal as stated by P. W. 1 Kanwarlal. He has pointed out that there is clear variance between the pleading and the proof on this point. I find force in this contention. In the plaint it has been stated that the notice wastendered to the defendant. The endorsement contained on the notice Ex. 1 also recites the fact that the notice was offered to Gumanmal defendant. P. W. I Kanwarlal (plaintiff) when he came in evidence stated that the notice was offered to Mangilal brother of the defendant.
Thus the plaintiff's case regarding tender of notice to Mangilal runs counter to the averment in the plaint as well as the endorsement contained in the notice Ex. 1. The courts below do not seem to have noticed this glaring variation between the pleading and the proof. It is true that the defendant's son Devichand (D. W. 2) has admitted that the defendant mostly resides in village Khara Bera and the business at the shop is mostly looked after by him and his uncle Mangilal. If the plaintiff's case of tender of notice to Mangilal were accepted, I agree with the court below that it would have amounted to a sufficient tender in the eye of law. But since the plaintiff's case that the notice was tendered to Mangilal cannot be accepted in view of what I have stated above, the question arises whether affixation of notice without there being evidence of tender of the same to one of the defendant's family or servants at his residence would be sufficient compliance with the provisions of Section 106 of the Transfer of Property Act.
3. The relevant portion of Section 106, T. P. Act with which we are concerned reads as under:
'Every notice under this section 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 residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
4. I am prepared to grant in the facts and circumstances of the present case that tender or delivery of notice to the defendant personally has been proved to be not practicable. But the difficulty for the plaintiff arises from the fact that there is no reliable evidence on the record that the notice was attempted to be tendered or delivered to one of the defendant's family or servants at his residence. Some argument was advanced by the learned counsel for the respondent that the word 'residence' as used in this section is of wide import and includes within its scope the business premises of the tenant also. In this connection he has relied upon 1970 Ren C R 561 (Punj). However, it is not necessary for the purposes of this appeal to decide this point and I refrain from doing so. Assuming for the sake ofargument that the shop is also considered as the residence of the defendant the question still remains whether the plaintiff should have shown that it was not practicable to tender or deliver notice to any member of the defendant's family or his servants.
Learned counsel for the respondent urged that for the purpose of affixing the notice to a conspicuous part of the property the plaintiff need not have shown that he attempted to serve the notice on any member of the defendant's family or his servant and the provisions of Section 106 of the Transfer of Property Act will be deemed to have been sufficiently complied with by proof of the fact that it was not practicable to serve the notice on the defendant personally. In support of his contention he has invited my attention to Achamma v. Fairman, AIR 1970 Mys 77. This case undoubtedly supports the point of view canvassed by the learned counsel. However with great respect I have to point out that no reasons whatsoever have been given by the learned Judge in adopting that view. All that has been stated is that this view appeared to the learned Judge as sound.
In this connection I may respectfully point out the relevant provisions contained in Section 106 which make it obligatory on the part of the landlord to show that it was not practicable for him to tender or deliver the notice to the party personally or to tender or deliver the same to one of his family or servants and consequently the notice was affixed at the property. This is clearly the meaning borne out by the words within comas 'if such tender or delivery is not practicable'. It is too obvious to need any discussion that by the use of the words 'such tender' the legislature meant tender to the party as well as tender to one of his family or servants. Thus on a plain reading of this section it appears to me that before a landlord can resort to the service of notice by affixture of the same he has to show that it was not practicable to tender or deliver the notice personally to the party or to one of his family or servants.
This was the view taken in Sukumar v. Naresh Chandra, AIR 1968 Cal 49. It was held in this case that the 4th mode of service of notice of affixing the same to a conspicuous part of the property is available only when neither second nor the third mode is practicable that is neither it is practicable to tender or deliver the notice to the party nor it is practicable to tender or deliver the same to one of his family or servants. In this view of the matter I am constrained to hold that the notice of ejectment was not served upon the defendant according la law.
5. Learned counsel for the appellant also argued that the plaintiff has failed to prove his reasonable and bona fide necessity for the shop in question. However, it is not necessary to go into this question in view of my finding regarding notice which is sufficient to dispose of this appeal.
6. The result is that I allow this appeal, set aside the judgments and decrees by the courts below and dismiss the plaintiff's suit for ejectment. Since the defendant has succeeded on a technical ground, I leave the parties to bear their own costs throughout.
7. Learned counsel for the respondent prays for leave to appeal to Division Bench. Leave is refused.