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Rajani Sutradhar and ors. Vs. Baikuntha Chandra Saha and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.446
AppellantRajani Sutradhar and ors.
RespondentBaikuntha Chandra Saha and anr.
Cases Referred and Burmaster v. Barrow
Excerpt:
landlord and tenant - land let out for non-agricultural purposes--subsequent user for agricultural purposes--whether changes incidents of tenancy--tenant would be governed by transfer of property act--evidence act (i of 1872), sections 16, ill. (b), 114, ill. (i)--registered litters correctly addressed and posted--letters not coming back--that they reached destination, if can be presumed--some of joint tenants receiving notice to quit--whether notice to all. - .....to defendant no. 1 was returned to the plaintiff with an endorsement that it was refused. the letters addressed to defendants nos. 2 and 3 did not come back to the plaintiffs but the acknowledgement slips purporting to be signed by defendants nos. 2 and 3 respectively were received in due course by the plaintiffs. it may be that the signatures on these acknowledgement slips have not been proved by the plaintiffs, the finding of the learned subordinate judge in this respect being that the signatures resemble the signatures , of defendants nos. 2 and 3. defendant no. 3 examined himself and denied the receipt of the notice. but the, defendant no. 2 did not come to the box and there is no denial on his part. this fact has been proved, that registered letters correctly addressed to.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the defendants in a suit instituted by the plaintiffs for ejectment after service of a notice to quit. The defence was that the lands in suit had been let out to them for agricultural purposes and they, the defendants, have acquired occupancy rights and their further defence was that the notice to quit had not been served upon them. For the purpose of proving that the letting was for agricultural purposes the defendants adduced evidence that they raised in the years past crops upon a part of the lands included in the tenancy. Witness No. 5 examined on behalf of the defendants, however, admitted that the defendants had taken the lands for the purpose of residence. The letting was about 50 years before the suit : He also proved that for about 25 years crops are being raised in the southern portion of the lands in suit.

2. The learned Munsif explained away the statement made by this witness that the letting was for residential purposes but the learned Subordinate Judge has ' held that the evidence of this witness on this part of the case is unambiguous. He has found that the purpose of the tenancy was non-agricultural and this finding, in my judgment, cannot be attacked in second appeal.

3. When the letting was for non-agricultural purpose, a subsequent user for agricultural purposes would not affect, in my judgment, the incidents of the tenancy. It would still be regarded as a non-agricultural tenancy although after the creation of the tenancy the tenants may be using a part of it for agricultural purposes.

4. I accordingly hold that the lower Appellate Court has rightly held that the defendants are not occupancy raiyats but their tenancies are governed by the provisions of the Transfer of Property Act. There is no defect in the notice to quit but a further point has been raised before me as to whether the notice was served on the tenants.

5. Now there are three defendants to the suit. The plaintiff addressed three registered letters one to each of them. The letter addressed to defendant No. 1 was returned to the plaintiff with an endorsement that it was refused. The letters addressed to defendants Nos. 2 and 3 did not Come back to the plaintiffs but the acknowledgement slips purporting to be signed by defendants Nos. 2 and 3 respectively were received in due course by the plaintiffs. It may be that the signatures on these acknowledgement slips have not been proved by the plaintiffs, the finding of the learned Subordinate Judge in this respect being that the signatures resemble the signatures , of defendants Nos. 2 and 3. Defendant No. 3 examined himself and denied the receipt of the notice. But the, defendant No. 2 did not come to the box and there is no denial on his part. This fact has been proved, that registered letters correctly addressed to defendants Nos. 2 and 3 had been posted by the plaintiffs and these letters did not come back to the plaintiffs. In these circumstances, I hold that the Court would be justified in presuming that the letters correctly addressed reached their destination. The matter has been considered fully by Mr. Justice Mookerjee and Mr. Justice Caspersz in the case of Tapurah Hossain v. Gopi Narayan 7 CLJ 251 at p.258. At p. 258 Page of 7 CLJ--[Ed] of the report speaking of a letter correctly addressed and which has been proved to have been posted, the learned Judges say thus:

The presumption, which is applicable to cases of this description is thus stated in Taylor on Evidence, Vol. I, Section 179. The rule is well settled that, if a letter properly directed is proved to have been either put into the Post Office or delivered to the postman, it is presumed from the known course of business in the Post Office department, that it reached its distinction on the regular time and was received by the person to whom it was addressed. (See also Wigmoro on Evidence, Vol. I, Section 95). This statement is identical with the rule as enunciated by Mr. Justice Wood in delivering the unanimous opinion of the Supreme Court of the United States in Rosemthal v. Walker (1884) 111 US 185 at p 193. To the same effect in the proposition laid down in Schutz v. Jordan (1891) 141 US 213 This rule is amply borne out by the cases of Warren v. Warren (1834) 1 Cr.M & R 250 : 40 RR 547 : 4 Tyr. 850 : 3 LJ (ns) Ex. 294, Woodcock v. Houdlsworth (1846) 16 M & W 124 : 16 LJ Ex 49 and Sanderson v. Judge (1795) 2 H & Bl. 509 : 3 RR 492 and Dunlop v. Higgins (1848)1 HIC 381 : 73 RR 98 and it has been adopted in this country:. (See Lootf Ali Meah v. Pearee Mohun 16 WR 223. where it is stated that, if a letter is forwarded to a person by post duly registered, it must be presumed that it was tendered to him: See also the Indian Evidence Act Section 16, ill. (6), and Section 114, ill (f). There is, however, no presumption that a letter, which was posted was properly addressed and the presumption in question has no application till it is established that the letter was properly addressed. See Lindmburghar v. Beal (1821) 6 Wheaton 104, Ram Das v. Official Liquidator 9 A 366 and Burmaster v. Barrow (1852) 17 QBD 828 : 85 RR 688 : 21 LJQB 135 : 16 Jur. 314. Before the presumption can be applied it is necessary to prove, as was done in the case of In re Hickly (1875) 10 Eq 117 at p 127, that the notice was sent in a cover which was properly addressed.

6. In this case, in as much as there is no dispute that the letters were properly addressed and inasmuch as it has been proved that the letters were registered letters and were posted at the Post Office, in my judgment, having regard to the principles laid down in the above passage of Mr. Justice Mookerjee and Mr. Justice Caspersz it must be held that there was a service through post of the notice to quit at least on defendants Nos. 2 and 3. The notice which was put in those letters was addressed to all the tenants. It must, therefore, be taken that the notice to quit reached at least two of the joint tenants. If that be so, according to the well-known rules on this matter, it must be taken that all the three joint tenants got the notice to quit. In this view of the matter, there is no substance in the second point urged before me that the service of the notice to quit had not been duly proved.

7. I accordingly, hold that the decree of the learned Subordinate Judge is a correct decree and this appeal must be dismissed with costs.


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