Khagendra Nath Paul v. Achal Pada De — 1985 DIGILAW 243 (CAL)

JUDGMENT Bankim Chandra Ray, J. 1. These two appeals are directed against the common judgment and decree passed in Ejectment Suit Nos. 296 and 297 of 1973 by the 12th Bench City Civil Court, Calcutta decreeing Ejectment Suit No. 296 of 1973 and dismissing Ejectment Suit No. 297 of 1973. The plaintiffs were directed to get a decree for khas possession after evicting the defendant therefrom and the defendant was allowed three months time to vacate the suit premises failing which the plaintiff would be at liberty to put the decree into execution. 2. The facts of the case in short are as follows:- The plaintiffs Achal Pada De and his brothers Bejoy Krishna De and Dulal Krishna De and the other plaintiff Nos. 2 and 5 to 10 who are the sons of Panchu Gopal De, one of the brothers of plaintiff Nos. 1, 3 and 4 purchased the suit premises No. 4B and 4C, Jagannath Sur Lane by a registered deed of Sale on 8.3.1957 from the previous owner. The defendant principal respondent Rathindra Nath Hazra was a tenant in respect of two bed rooms in second floor with kitchen and bath and privy at premises No. 4C, Jagannath Sur Lane, Calcutta-6 at a rental of Rs. 110/- per month payable according to English calender under the plaintiffs. The said tenancy of the defendant was terminated by the plaintiffs by a combined notice of ejectment under section 106 of the Transfer of Property Act and under section 13(6) of the West Bengal Premises Tenancy Act, 1956. This notice was dated 9.10.1972 and it was served under registered cover with acknowledgement due through their Advocate and agent Sri S.P. Bagchi whereby the tenant was asked to quit and vacate and deliver possession of the suit premises on the expiry of last day of November, 1972. The notice sent by registered post was manipulated by the defendant with the result that it came back with the remark left. It was also pleaded that the defendant was served with a copy of the said notice dated 9.10.1972 through Peon on 14.10.1972 when the defendant was present at 4C, Jagannath Sur Lane. The notice sent by registered post was manipulated by the defendant with the result that it came back with the remark left. It was also pleaded that the defendant was served with a copy of the said notice dated 9.10.1972 through Peon on 14.10.1972 when the defendant was present at 4C, Jagannath Sur Lane. The defendant after reading the contents of the notice refused to accept the same and so the notice was affixed on the main door of the suit premises in presence of two gentle men present in the locality and the identified. The plaintiff reasonably require the suit premises for their own use and occupation and for use and occupation of the members of their family. The defendant was a defaulter in payment of rent since May, 1972 and as such he was not protected under the West Bengal Premises Tenancy Act, 1956. It has also been stated that the plaintiff No.1 family consisted of himself, his wife, his son and daughter-in-law, three daughters and plaintiffs mother-in-law. The plaintiff No.1 requires one room for himself and his wife, one room for his married son, one room for his eldest married daughter, one room for the two unmarried daughters, one room for the aged mother-in-law and one drawing room, one study room, one store room and one dining room and a kitchen. The plaintiff No.2 who bas attained marriageable age requires one room for himself. One room for his mother and unmarried sister, one kitchen and one store-cum-dining room. The plaintiff No.3 employed in Calcutta requires one room for himself and his wife, two rooms for his two sons who carried on their study at Calcutta and one kitchen and one store-cum-dinning room. The plaintiff requires two bed rooms for his two sons one of whom has attained marriageable age and is employed in Calcutta and one kitchen. The plaintiff further stated that the 8 rooms in premises 4B, Jagannath Sur Lane which are in their possession are not sufficient to meet their requirements. 3. The defendant filed a written statement questioning the validity and legality and sufficiency of the alleged notice to quit. The plaintiff further stated that the 8 rooms in premises 4B, Jagannath Sur Lane which are in their possession are not sufficient to meet their requirements. 3. The defendant filed a written statement questioning the validity and legality and sufficiency of the alleged notice to quit. Defendant further stated that no notice was served or tendered to the defendant on 14.10.1972 through peon and as such the question of affixing the said notice in his presence and in the presence of the two gentlemen in the locality did not arise at all. The defendant also denied that a notice to quit was served on him in the manner or manners as alleged in the plaint. The report of the peon is a fabricated document created by the plaintiff for the purpose of the case. The defendant denied that the plaintiffs reasonably require the suit premises for their own use and occupation. The defendant further stated that the plaintiff Nos. 3 to 10 do not require the suit premises for their own use and occupation as they resided in their native village in Vestara, District Hooghly very near to Calcutta and it was very convenient for them to live there for purpose of looking after their joint properties and business. It has also been stated therein that plaintiff No.4 is a Government employee whose Office is very near to his village and plaintiff Nos. 5 and 6 have their lucrative sweet meat business in their said village and the plaintiff Nos. 7 and 10 are studying in the Higher Secondary School of their native village. The plaintiff Nos. 8 and 9 are to stay in their native village and to look after their family and also their joint business. An additional written statement was also filed on 26.6.1980 by the defendant in Ejectment Suit No. 296 of 1973 wherein it has been stated that the plaintiffs previously filed an ejectment suit on same grounds of reasonable requirement being Ejectment Suit No. 216 of 1957 before the 5th Judge, Small Causes Court, Calcutta and the said suit was decreed and the plaintiff obtained possession of the suit premises, but the plaintiffs relet he suit premises to the different tenants within a few months. The plaintiff had no complied with the provisions of a section 18 of the Wes Bengal Premises Tenancy Act, 1956 and so this suit is liable to be dismissed. The plaintiff had no complied with the provisions of a section 18 of the Wes Bengal Premises Tenancy Act, 1956 and so this suit is liable to be dismissed. It has also been stated that the plaintiff No.4 constructed a new building in his village Vestara after filing the suit and he resides there separately and permanently. The plaintiff No.9 is married and he has residing with her husband in village Dasgorea, District Hooghly. The mother-in-law of plaintiff No.1 was living with her son A.P. Dutta who has a lucrative sweet meat shop and as such the plaintiff do not require the suit premises for their own use and occupation. 4. Ejectment Suit No. 297 of 1973 has been filed by the plaintiffs against the defendant Khagendra Nath Paul for ejectment from the tenanted premises comprising of three rooms, kitchen, bath and privy in 1st floor of premises No. 4C, Jagannath Sur Lane let at a monthly rental of Rs. 125/- per month payable according to English Calendar after terminating his tenancy by a combined notice under section 106 of the Transfer of Property Act and under section 13(6) of the West Bengal Premises Tenancy Act and the said notice dated 9.10.1972 was served under registered post sith acknowledgement due through their Advocate and Agent one Shri S.P. Bagchi asking the defendant to quit and vacate and deliver possession of the defendants tenancy on expiry of last day of November, 1972. The plaintiff also served a copy of the said notice dated 9.10.1972 through Peon on 14.10.1972 when the defendant was present. The defendant after reading the contents of the notice refused to accept the same and so the said notice was affixed on the main door of the suit premises in presence of the two gentlemen present in the locality and the identified. The ground of ejectment was reasonable requirement of the suit premises for own use and occupation of the plaintiffs and their family members a caused by the death of Panchu Gopal De, brother of the plaintiff Nos. 1, 3 and 4. It has been stated that the notice sent through registered post was manipulated by the defendant wherein neither the acknowledgement nor the unsigned letter came back. 1, 3 and 4. It has been stated that the notice sent through registered post was manipulated by the defendant wherein neither the acknowledgement nor the unsigned letter came back. A written statement was filed by the defendant denying that the notice to quit was ever served on him in the manners or manner alleged and also challenging the validity and legality of the alleged notice to quit. It was also denied that a notice was served and/or tendered to the defendant on 14.10.1972 through Peon. As such the question of affixing the same in this presence and in presence of the two gentlemen of the locality did not arise at all. It was also stated that the report of the Peon was fabricated document created for the purpose of the case. The defendant denied that the plaintiffs reasonably require the suit premises for his own use and occupation. 5. On these pleadings several issues were framed:- 1. Is the suit bad for defect of Parties? 2. Has the plaintiff any cause of action for this suit? 3. Do the plaintiffs at all require the premises for their own occupation or for the occupation of their family and dependants? 4. Has there been a determination of defendant tenancy by service of the valid notice to quit? 5. Is the plaintiff emtitiled to any decree? 6. The plaintiffs examined 9 witnesses on their behalf and the defendants in both the suit also examined themselves. Both the suits were heard analogously and the learned Judge Shri J.N. Hore after hearing both the parties dismissed Ejectment Suit No. 296 of 1973 and decreed Ejectment Suit No. 297 of 1973 holding, inter alia, that though the plaintiffs after getting an Ejectment Decree on the ground of reasonable requirement for his own use and occupation let out premises No. 4C, Jagannath Sur Lane to the tenants in order to repay the loan which was incurred by the plaintiffs as plaintiff Bejoy Krishna De was involved in a defalcation case and through section 18 of the Premises Tenancy Act was applicable yet the tenant did not initiate any proceedings before the Rent Controller to have his possession restored in respect of tenanted premises. It was, therefore, held that section 18 did not debar subsequent suit for ejectment of their tenants on the ground of section 13(ff) of the West Bengal Premises Tenancy Act. It was, therefore, held that section 18 did not debar subsequent suit for ejectment of their tenants on the ground of section 13(ff) of the West Bengal Premises Tenancy Act. It was also held that copies of the ejectment notice under section 13(ff) was duly served by the Peon on 14.10.1972 and the notice was quite legal and valid and sufficient. It was also held that the defendant in Title Suit No. 296 of 1973, that is Khagendra Nath Hazra duly deposited all arrears of rent according to the order of the Court under sections 17(2) and 17(2a) of and (b) of the said Act and as such he was entitled to protection under section 17(2) of the said Act. It was further hold that plaintiffs reasonable require the suit premises in Ejectment Suit No. 297 of 1973 and as such Ejectment Suit No. 297 of 1973 was decreed with costs and Ejectment Suit No. 296 of 1973 was dismissed. The defendant was given three months time to vacate the suit premises in default the plaintiff would be at liberty to put the decree into execution. 7. Against this judgment and decree, F.A. No. 186 of 1981 was field by the plaintiff of Ejectment Suit No. 296 of 1973 and F.A. No. 317 of 1981 was filed by Khagendra Nath Paul the defendant against the judgment and decree passed in Ejectment Suit No. 297 of 1973. 8. Mr. Rabindra Nath Mitra learned Advocate appearing on behalf of the appellants in both the appeals have seriously questioned the legality and validity of personal service of ejectment notice by Gopi Krishna Pal P.W. 2, Clerk of Advocate Shri Lal Behari Sen on 14.10.1972. Mr. Mitra submitted with reference to the report of the Peon which bas been marked as Exts. 5 and 5(a) that this report clearly states that on 14.10.1972 he handed over a ejectment notice to the addressee, that is, in one case Shri Khagendra Nath Paul and in other case Shri Rathindra Nath Hazra on 14.10.1972. The addressee refused to sign and receive the same and as such he served the notice by hanging at the door of the room. The Peon signed the report on 14.10.1972. Mr. Mitra submitted that the identified Achal Pada De, the plaintiff No.1, signed on the top of the report and the date put in was 12.10.1972. The addressee refused to sign and receive the same and as such he served the notice by hanging at the door of the room. The Peon signed the report on 14.10.1972. Mr. Mitra submitted that the identified Achal Pada De, the plaintiff No.1, signed on the top of the report and the date put in was 12.10.1972. The said date was subsequently struck out and the date 14.10.1972 was put in. This will be evident from the report itself. Mr. Mitra also submitted that the two witnesses Sib Nath Auddy and Tarak Nath Sinha also signed at the top of the report instead of signing as is usually done at the end of the report or below the report. This alteration of the date is evident from the reports submitted by Gopi Krishna Pal which are marked as Exts. 5 and 5(a). Mr. Mitra also submitted in this connection that in paragraph 3 of the original plaint of both the suits the date of service of the said notice through Peon was at first typed as 12.10.1972 and subsequently this date was over written as 14.10.1972. Mr. Mitra submitted that these two reports Exts. 5 and 5(a) were subsequently created and/or manufactured for the purpose of this case and as such thi3 serious discrepancy occurred both in the said report submitted by the Peon as well as in the paragraph 3 of both the plaint of the said suits. Mr. Mitra, therefore, submitted that there has been no personal service at all by the clerk Gopi Krishna Pal on 14.10.1972. It has also been submitted in this connection that none of the two witnesses to the personal service is a man of the locality through Sib Nath Auddy was examined as P.W.5 and he stated in his deposition in cross-examination that he went to Achalpada's house as per previous engagement on the date of service of the ejectment notice by the Peon as be is a resident of No. 312, Bhangur Avenue Block-A, P.S. Dum Dum. The other witness to the service Tarak Sinha who according to P.W.5 is a friend of Achal Pada was not examined in this case. P.W.1 Achal Pada, plaintiff No.1 admitted in his evidence that both Sib Nath De and Tarak Nath Sinha are not neighbours. The other witness to the service Tarak Sinha who according to P.W.5 is a friend of Achal Pada was not examined in this case. P.W.1 Achal Pada, plaintiff No.1 admitted in his evidence that both Sib Nath De and Tarak Nath Sinha are not neighbours. It has not been stated how Tarak Nath Sinha was present at the time of service of the ejectment notice by Gopi Krishna Pal on the defendants Sri Rathindra Nath Hazra and Khagendra Nath Paul respectively of Ejectment Suit Nos. 296 and 297 of 1973. Mr. Sakti Nath Mukerjee though made elaborate arguments as to the implication of the sending of a letter by registered post duly addressed did not advance any argument on the submissions made by Mr. Mitra on this serve Mr. Bhaskar Ghosh, his junior, has tried to urge that the notice was duly served by the Peon Gopi Krishna Pal, P.W.5 by submitting that though there was an over writing regarding the dale put in after the signature of the identified and there is some discrepancy yet so far as the date out in by the Peon below his signature is quite clear and fresh and there is no over writing there. It has, therefore, been submitted that the personal service should be considered to be duly made on 14.10.1972. Considering the reports Exts. 5 and 5(a) and also considering the fact that the identified signed at the top of the report and the two witnesses of the report also signed at the top and the date put in by the identifier below his signature though over written is clearly legible as 12.10.1972 which was put in originally through subsequently over written as 14.10.1972. This raises a serious suspicion in the mind of court as to the genuineness of this report. It has not been explained also why the identified and the witnesses in whose presence the said notice is alleged to have been tendered to the defendants signed at the top of the report which is something unusual without signing at the bottom of the report. Furthermore it is also very striking to note that in paragraph 3 of the plaintiffs of both the suits the date of personal service was originally typed as 12.10.1972 and a subsequently it was typed as 14.10.1972. Furthermore it is also very striking to note that in paragraph 3 of the plaintiffs of both the suits the date of personal service was originally typed as 12.10.1972 and a subsequently it was typed as 14.10.1972. Moreover none of the witnesses of the service of the ejectment notice are of the locality as has been admitted by P.W.1 in his cross-examination. Though P.W.5 has stated is his deposition that on previous engagement he came to 4C, Jagannath Sur Lane at 8 A.M. to the witness service of the notice on the defendants yet there is no explanation how the other witnesses Tarak Nath Sinha who is admittedly a friend of Achal Pada De P.W.1 and not a man of the locality came at that time when the ejectment notice was alleged to have been tendered to the defendants. Considering these facts and circumstances I am inclined to hold that the notice of ejectment was not served personally on 14.10.1972 and the report of the Peon Gopi Krishna Pal, Exts. 5 and 5 (a) cannot be relied upon to hold that there has been a personal service of ejectment notices by Gopi Krishna Pal on 14.10.1972. 9. The said ejectment notice dated 9.10.1972 was sent under registered cover to Khagendra Nath Paul at 4C, Jagannath Sur Lane Calcutta-6 on 10.10.1972 as appeared from the postal Receipt No. 188 dated 10.10.1972 which was posted in the Post Office at Treasury Buildings. The defendants Khagendra Nath Paul has stated in paragraph 9 of the written statement filed on 23.8.1983 that he denied that any notice to quit was served on him in the manner or manners as alleged therein. He has also stated that no notice was served or tendered to the defendant On 14.10.1972 through peon and as such the question of affixing the same in his presence and in the presence of two gentlemen in the locality does not arise at all The report of the peon if any is a fabricated document created by the plaintiffs for the purpose of this case. Khagendra Nath Paul also as D.W.1 has stated in his evidence as follows. On 14.10.1972 Gopi Krishna Pal did not tender any notice of ejectment to me. I left for my native borne on the night of 13.10.1972 which was a Saptami Puja day. I was at my native place. Khagendra Nath Paul also as D.W.1 has stated in his evidence as follows. On 14.10.1972 Gopi Krishna Pal did not tender any notice of ejectment to me. I left for my native borne on the night of 13.10.1972 which was a Saptami Puja day. I was at my native place. I did not receive any registered letter containing ejectment notice. In cross of examination he has also stated that this statement is not false. Admittedly neither the letter nor the acknowledgement receipt did come back to the Advocate Bagchi who as agent of the plaintiffs posted the said letter. P.W.1 Achal Pada stated in his deposition that the registered letter containing the notice addressed to the Khagendra Nath Paul was not returned nor the acknowledgement was returned. He also stated that his lawyer Bagchi wrote to the post office a letter which was marked Ext. 6. The postal Peon attached to Bidden Street Post Office Phanindra Nath Paul deposed as P.W.8 stated that the records of the registered letter No. 188 dated 10.10.1972 had been destroyed. This will be evident from the letter written by Post Master, Bidden Street Post Office dated 8.12.1980 marked as Ext. 13 in Ejectment Suit No. 297 of 1973. This being the position the court below in my opinion, was justified in holding that in view of the denial of service of the addressee Khagendra Nath Paul presumption of service from posting the registered letter duly addressed and after prepaying the requisites stamps have been rebutted. As regards the two letter containing ejectment notice dated 9.10.1972 addressed to Rathindra Nath Hazra sent by the plaintiff agent and Advocate Shri S.P. Bagchi it appears from the postal receipts of the registered letter granted by the Treasury Buildings on 10.10.1972 being Nos. 191 and 192 that the notices of ejectment were duly posted under registered cover to the defendant Rathindra Nath Hazra Calcutta at his address at Midnapore and the Calcutta address at 4C, Jagannath Sur Lane Calcutta-6. These postal receipts are marked at Exts. 5A in Ejectment Suit Nos. 296 and 297 of 1973. Mr. Hazra has stated in paragraph 9 of his written statement that he denies that any notice to quit was served on him in the manner or manners as alleged therein. These postal receipts are marked at Exts. 5A in Ejectment Suit Nos. 296 and 297 of 1973. Mr. Hazra has stated in paragraph 9 of his written statement that he denies that any notice to quit was served on him in the manner or manners as alleged therein. He further stated that no notice was served or tendered to him on 14.10.1972 through Peon and as such the question of affixing the same in his presence and in the presence of two gentlemen of the locality does not arise or at all. The report of the Peon, if any, is a fabricated document created by the plaintiffs for the purpose of this case. This statement has been verified as true to his knowledge. In his evidence at D.W.2 he stated that he did not receive any notice of ejectment. He also stated that Gopi Pal did not tender any notice of ejectment on 14.10.1972 to him. He has also stated that it is not a fact that he affixed the notice on the door. His further evidence is that he did not receive any registered notice. No postal Peon tendered any registered notice to him. The undelivered cover of both the registered letters came back to the sender and they were marked Exts. 7 and 7(a) respectively in the said suit. It appears that on the undelivered cover of the registered letter addressed to Rathindra Nath Hazra at 4C, Jagannath Sur Lane the Calcutta address was penned through and the letter was redirected to Indrapur Post and Village 24 Parganas. In the reverse of the said letter it was written Red to P.O. and Village Indrapur illegible 19.10.1972 below it there was further writing Red to, Post and Village Barberia, District Midnapore. This letter was received as per Receipt No. 192 by Treasury Building Post Office, Calcutta-1. It does not appear from the endorsements made by the postal authorities on the letter that there is any endorsement stating the reasons for returning the letters to the sender. In other words there is no postal endorsement to the effect refused, nor claimed not found or left on the undelivered envelope. The registered letter Ext. 7(a) as per Receipt No. 191 issued by the Treasury Building Post Office Calcutta-1 was addressed to Rathindra Nath Hazra C/o. Sudhir Chandra Hazra, Post, and Village Barberia, District Midnapore. In other words there is no postal endorsement to the effect refused, nor claimed not found or left on the undelivered envelope. The registered letter Ext. 7(a) as per Receipt No. 191 issued by the Treasury Building Post Office Calcutta-1 was addressed to Rathindra Nath Hazra C/o. Sudhir Chandra Hazra, Post, and Village Barberia, District Midnapore. This address was panned through subsequently and it was written Indrapur Village and Post 24 Parganas. This was also penned through and it was written Red to Post and Village Barberia, Dist Midnapore. The postal endorsement was absent on 20.10.1972, 30.10.1972, 31.10.1972 and 1.11.1972. In the left hand side of the said cover of the registered letter was written Red to Post and Village Indrapur, District 24 Parganas Sd. Illegible. 1910 and the postal endorsements are absent on 13.10.1972 14.10.1972 and 18.10.1972. It appears the seal of the Barberia Post Office, Midnapore, dated 20.10.1972. Regarding these postal endorsements it has been submitted by Mr. Rabindra Nath Mitra, learned advocate appearing on behalf of the appellant in F.A. No. 186 of 1981 that both these registered letters were not received by him and as such the court below rightly held that in view of the specific denial of service by the defendant Rathindra Nath Hazra the presumption of service is said to have been rebutted. Mr. Sakti Nath Mukherjee learned advocate appearing on behalf of the respondents in this appeal has urged very persuasively that the statutory presumption under section 27 of the Indian General Clause Act read with section 114 of the Indian Evidence Act arose in favour of the due service of notice on the defendant as the plaintiffs have already proved by the postal receipt that the letter has been duly addressed, stamped prepaid and posted in the post office at Treasury Building. It has been submitted in this connection by Mr. Sakti Nath Mukherjee refurring to several decisions at the bar that this presumption has not been rebutted by the defendant Rathindra Nath Hazra as he has not said that he was absent from his residence at 4C, Jagannath Sur Lane on the date when the said registered letter was tried to be tendered to him by the postal Peon nor it is his pleadings that he was absent from his house from the day when the postal Peon came to his residence to the tender the said letter to him. Mr. Mukherjee has submitted that plaintiff had categorically stated in paragraph 2 of the plaint that though the said notice sent by registered post was manipulated by the defendant with the result that it came back with the remark left and submitted that it was defendant at whose machination the postal peon returned back the register envelope containing the ejectment notice. It has been further submitted by Mr. Mukherjee that not only the notice or ejectment was sent to the Calcutta address of the defendant Rathindra Nath Hazra but it was also sent to his village address in Barberia within Midnapore District and the said letter also was redirected to several places in Midnapore and 24 Parganas. In none of the places the defendants could be found for tendering the said letter to him. Mr. Mukherjee submitted that mere denial that the notice was not tendered to him presupposes that he was present at the Calcutta address at the relevant time when the postal peon is supposed to go there with the registered letter for service. In these circumstances the statutory presumption of service of the notice has not been rebutted by cogent evidence on the part of the defendant. It has also been submitted by Mr. Mukherjee in this connection that it is not necessary that by mere denial of the service of registered letter the statutory presumption is rebutted and the ownership shifted on the plaintiff relying on the statutory presumption to examine the postal peon to prove the due service of the said registered letter. 10. P.W.1 Achal Pada De stated in his evidence that notice of ejectment was sent to Hazra by registered post with acknowledgement due on 10.10.1972 both at his village as well as at his Calcutta address. The copy of the ejectment notice was filed in the suit and marked as Ext. 3. The registration slip was also marked as Ext. 4(a). It is also his evidence both the registered letter containing the ejectment notices addressed to Rathindra Hazra were returned. Rathindra Nath Hazra as D.W.2 stated that he did not receive any notice of ejectment. He also stated that he did not receive any registered notice. No postal peon tendered any registered notice to him. In cross-examination he further stated that he had no enmity with the postal peon. Rathindra Nath Hazra as D.W.2 stated that he did not receive any notice of ejectment. He also stated that he did not receive any registered notice. No postal peon tendered any registered notice to him. In cross-examination he further stated that he had no enmity with the postal peon. It was not a fact that he was present at 4C, Jagannath Sur Lane on 14.10.1972. No inmate was also present. He denied that he tried to evade service of notice by registered post and got the registered letter directed to his village address. It also appears from Ext. 7 the undelivered cover of a registered letter dated 19.10.1972 with acknowledgement card addressed to Rathindra Nath Hazra at 4C, Jagannath Sur Lane that there is no postal endorsement when the letter was last redirected to village Barberia, District Midnapore and whether the letter was tendered to the addressee or not. It further appears from Ext. 7(a), that is, the undelivered cover of registered letter dated 19.10.1972 addressed to Rathindra Nath Hazra at his village address Barberia that it was redirected to village Indrapur where the postal endorsement was that the addressee was absent on 13.10.1972, 14.10.1972, 18.10.1972. It was then redirected to Post and Village Barberia, District Midnapore and the endorsement of the postal Peon was that the addressee was absent on 28.10.1972, 30.10.1972, 31.10.1972 and 1.11.1972. Considering these postal endorsements on the two letters Exts. 7 and 7A along with the evidence of D.W.2, R.N. Hazra the only inference that can be drawn is that the statutory presumption arising from the posting of the registered letters containing the ejectment notices after prepaying the stamps and addressing the same property has been rebutted. The postal peon has not been examined in the case to prove that the registered letters were ever tendered to the addressee R.N. Hazra not any other cogent evidence has been adduced by the plaintiffs to show that Rathindra Nath Hazra though present in the address as mentioned in the letters at the time when the letter was tried to be tendered to him had avoided service of the same. In such circumstance the submission made by Mr. Mukherjee that the presumption of due service of the said two letters containing the ejectment notices has not been rebutted cannot, in my opinion be accepted. In such circumstance the submission made by Mr. Mukherjee that the presumption of due service of the said two letters containing the ejectment notices has not been rebutted cannot, in my opinion be accepted. It is pertinent to consider the relevant decisions cited by both the parties in this connection. In the case of Saibalini Saha vs. Snehalata Bose, 65 CWN 690, two registered notice were sent under registered post with acknowledgement due. Both the acknowledgement came back, one bearing an acknowledgement of acceptance of the registered notice purported to be signed by one S. Bose and the other acknowledgement returned with the endorsement refused. It was held that so far with regard to acknowledgement form which was received back by the post office with the endorsement of acceptance it is to be presumed that the registered notice has been duly delivered. There was no evidence to show that the purported acceptance or signature was manufactured or falsely made. As such it was held that the presumption will prevail. So far as regards other acknowledgement hearing the postal endorsement refused the Court below held that there was a mere denial by the defendant regarding the service of the said letter. Yet in view of the evidence on record the defendants evidence was not trustworthy and it was held relying on the evidence of the postal peon who proved the particular endorsement refused and the signature underneath the said endorsement to be of the serving peon that the letter was served in the usual course of business and the presumption of due service arising under section 114, illustration (f) read with illustration (e) of the said section of Indian Evidence Act as to the regularity of the official acts has to be drawn and no reliable evidence to the contrary having forth-coming the presumption of the due service would prevail. This decision was rendered by P.N. Mookherjee. In the case of H.K. Das vs. Hahnneman Publishing Corporation, 70 CWN 262, the registered letter containing ejectment notice was sent with acknowledgement due and the acknowledgement card returned with the postal endorsement left. It was held by P.N. Mookherjee, J. that in view of the categorical denial by the defendant that the said registered letter was not given to him no presumption of service arose. It was held by P.N. Mookherjee, J. that in view of the categorical denial by the defendant that the said registered letter was not given to him no presumption of service arose. In the case of Chaya Debi vs. Lahori Ram Prashar, 67 CWN 819, two letters addressed to the petitioner was posted by the opposite party under certificate of posting. The normal presumption under section 114 of the Evidence Act would be that the covers were delivered to the petitioner. It was held that this presumption was not however proved and it might be rebutted. The petitioner denied receipts of these two letters in her affidavit-in-reply. The question was whether the denial was sufficient to rebut the presumption that the letters were delivered to the petitioner. It was held that the opposite party did not act like a man of ordinary prudence when he choose to send the two letters by ordinary post under certificate of posting. He took the peril of such letters being mislate or misdelivered. In the case of Surajmuli Ghanshyam Das vs. Samadarshan Sur, ILR 1969(1) Cal 379, the notice of ejectment sent under registered post and the acknowledgement card was returned with the endorsement left. It was held that the word left itself shows that there was no tender and unless there was a tender to the addressee on no conveyable principle, can service by registered post be accepted as good service. The service by registered post in the instant case must therefore he rejected. This decision has been rendered relying on the decision in the case of H.K. Das vs. Hahnneman Publishing Corporation, 70 CWN 262. In the case of Amal Banerji vs. Santi Devi, 83 CWN 753, registered letters with acknowledgement were posted but acknowledgements were not received. Letter was send to the Post Master who sent attested copies of the acknowledgement slip. But the signatures of the addressees were not legible. Addresses denied tender of the registered letters to them. It was held that the presumption was rebutted by the defendant assertion on oath that no registered letter was tendered to him and the plaintiff was not entitled to a decree of eviction. 11. This decision was rendered by N.C. Mukherji and Guha, JJ. Addresses denied tender of the registered letters to them. It was held that the presumption was rebutted by the defendant assertion on oath that no registered letter was tendered to him and the plaintiff was not entitled to a decree of eviction. 11. This decision was rendered by N.C. Mukherji and Guha, JJ. in Munni Devi vs. Puspa Lata Mandal & another, 71 CWN 282, the notice of ejectment was sent by registered post and the registered cover came back with the postal peon's endorsement of refusal by the defendant. It was held by P.N. Mookherjee, J. that under the circumstances a strong presumption arose with due service of the notice on the defendant under section 27 of the Indian General Clauses Act read with section 114 of the Indian Evidence Act. It was further held that the evidence adduced by the defendant was not sufficient to prove non service or impossibility of service of notice on her. In the case of Santosh Kumar Gupta vs. Chinmoyee Sen, AIR 1966 Cal 615 , the notice of ejectment was sent by registered post and cover came back with the endorsement left. It was held by Laik, J. that the presumption of service arose under section 114 of the Evidence Act by posting and correctly addressing the registered letter. It was further held that even if it was assumed that there was no proper service yet in view of the evidence on record the findings of fact arrived at by the court below that there was proper service of the notice stands. In Meghji Kanji Patel vs. Kundanmal Chaman Lal Mehtani, AIR 1968 Bombay 387, a writ of summons sent under registered post returned with the postal endorsement refused. It was observed that it was for the defendant to rebut the presumption by satisfying the Court that the letter was not tendered to him. The defendant can only do so by making a statement on oath. This must clearly remain uncontroverted, unless the postman who tendered the letter to him is summoned and makes a statement that he tendered the letter containing the summons to the defendant and after cross-examinati0n his evidence was believed. If he did not summon the postmen the statement on oath of the defendant remains uncontroverted and in such a case there was sufficient ground for setting aside ex parte decree. If he did not summon the postmen the statement on oath of the defendant remains uncontroverted and in such a case there was sufficient ground for setting aside ex parte decree. In Puwada Venkateswara Rao vs. Chidamana Venkata Ramana, (1976) 2 SCC 409 , it was observed by the Supreme Court that a letter sent by registered post with the endorsement refused on the cover could be presumed to have been duly served upon the addressee without examining the postman who have tried to effect the service. But it is a rebuttable presumption. If the addressee states on oath that he had not refused the letter as it was not brought to him the sender cannot succeed without further evidence. In appropriate case, on a closer examination of evidences on record the Court can reach the conclusion that the defendant bad full knowledge of the notice and bad 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 admission or conduct. 12. On a conspectus of all these decisions it is clear and apparent that the presumption of due service of notice sent under registered cover with postal stamp prepaid and the letter duly addressed and posted arose under section 27 of the Indian General Clauses Act read with section 114 of the Indian Evidence Act. But this presumption is a rebuttable one and whether in a particular case on the denial of the defendant that the registered letter was not tendered to him will be taken as evidence rebutting the presumption or not depends on the Courts believing or not believing the said statement in the facts and circumstances of the case. If the Court believes that statement then it is for the plaintiff who relies on the presumption to examine the postman or the peon to prove that the letter was duly tendered to the defendant. In the instant case I have already postal acknowledgement card Ext. 7 does not contain any postal endorsement and as such it is difficult to presume an inference that the letter was duly served to the addressee. As regards the acknowledgement card Ext. In the instant case I have already postal acknowledgement card Ext. 7 does not contain any postal endorsement and as such it is difficult to presume an inference that the letter was duly served to the addressee. As regards the acknowledgement card Ext. 7(a) it appears that the postal endorsement is that the defendant was absent on all the occasions the peon went to serve the same. Therefore it is very difficult in view of the above postal endorsements .to presume that the letter was ever tendered to the defendant and the presumption of due service, in my considered opinion, cannot be attached to this postal acknowledgement card returned with the endorsement absent. Therefore the argument tried to be advanced on behalf of Mr. Mukherjee, in my opinion, cannot be accepted. Furthermore the letter was tendered lastly on 1.11.1972 as evident from the acknowledgement card Ext. 7(a). The notice of ejectment terminating the tenancy on the expiry of the last day of November, 1972 and the tenancy commences from the 1st of calender month to the end of the calender month. Therefore this ejectment notice Ext. 3 did not terminate the tenancy of the defendant Rathindra Nath Hazra as it fall short of one month ending with the expiry of the month of the tenancy. 13. It is, of course, not necessary in view of my findings above that the notice of ejectment in both the suits was not served on the defendants either by personal service or by registered post still then as elaborate argument has been advanced by both the parties as to the reasonable requirement of the plaintiffs for their own use and occupation and the use and occupation of the members of their families of the suit premises, that is, the first floor and second floor of premises No. 4C, Jagannath Sur Lane. I am inclined to hold on a consideration of the evidences on record that the plaintiffs do reasonably require the suit premises comprising of the five bed rooms in the suit premises for the own use and occupation for the plaintiffs and the members of their families. I am inclined to hold on a consideration of the evidences on record that the plaintiffs do reasonably require the suit premises comprising of the five bed rooms in the suit premises for the own use and occupation for the plaintiffs and the members of their families. It is evident from the evidence of P.W.1 Achal Pada De that his family consisted of his wife one son and three daughters and he requires one room for himself and his wife, one room for his two unmarried daughters residing with him and also a study room for his daughters and he also requires one kitchen one dining room though, of course, he stated that he requires five rooms that is one room for his mother-in-law and another room for his eldest daughter who was married and was living with him. Regarding the married daughter in view of the evidence on record the plaintiff No.1 did not require any room and so far as the mother-in-law is concerned as it is in evidence that she is now dead. Therefore there is no requirement of any room for the mother-in-law. As regards the requirement of some of Panchu Gopal De it is stated by P.W.7 Bishnu Charan De that his other brothers, that is, plaintiff Nos. 5, 6 and 7 have been happily residing at their ancestral home at Bhastara. It also appears that his elder sister plaintiff No.9 Smt. Swaraswati Dhara after her marriage has been residing in her father-in-law's house. As such there is no requirement of any room for occupation of P.W.5 to 7 and 9. According to P.W.3 he requires one bed room for himself and one bed room for his mother. P.W.8 and unmarried sister P.W.10 Sikha De and he require also one kitchen and one dining room. P.W.1 has stated that Bejoy Krishna De has three sons and two daughters besides his wife. The daughters have been married and they are residing at their husband house. It is his evidence that the two sons of Bejoy live at 4B, Jagannath Sur Lane and Bejoy lived at his ancestral home. It was also his evidence that Bejoy is suffering from heart trouble and he requires treatment at Calcutta and so he requires one room for himself and his wife. His eldest son requires one room and the other two sons require one bed room. It was also his evidence that Bejoy is suffering from heart trouble and he requires treatment at Calcutta and so he requires one room for himself and his wife. His eldest son requires one room and the other two sons require one bed room. They also require one kitchen and store-cum-dining room. It is also his evidence that Dulal De has four sons and one daughter. The daughter is married and she is living at her husband's house. The eldest son is an agent of Peerless Investment Company. The other sons are all students. Dulal is living at the ancestral home at Bhastara. It is his evidence that two sons of Dulal need one bed room and one kitchen. His eldest son requires one bed room and other two sons require also another bed room and they further require one kitchen and one store-cum-dining room. Dulal De, P.W.6 however stated in his deposition that his second son works as electrical mechanic in the villages. He also stated that he had constructed a house in his native place and he has been residing there and attending office from his house. It is also his evidence that his sons are reading in the schools at his village. Therefore Dulal does not require any room for himself but he requires one room for his eldest son working in the Peerless Investment Co. and one room for his other two sons. P.W.9 Mrityunjoy De, one of the sons of Bejoy Krishna De has stated that his father Bejoy attends his place of work from the village and the story of the illness of his father was not all stated by him in his evidence. It is his evidence that he requires two room for himself and his elder brother. Considering all these evidences I am constrained to hold that P.W.1 Achal Pada De requires at least three bed rooms one for himself and his wife, another for his two unmarried daughters and one for his only son who though employed in Trivandrum comes to Calcutta every year as evident from the evidence of D.W.1 and stays with their parents with his family. Similarly Bejoy also requires two rooms for his two sons besides one kitchen and one store-cum-dining room. Plaintiff, Achal Pada De also requires one dining room one store and thakurghar. Similarly Bejoy also requires two rooms for his two sons besides one kitchen and one store-cum-dining room. Plaintiff, Achal Pada De also requires one dining room one store and thakurghar. Dulal De also requires two rooms for his son's one for his eldest son employed in Peerless and Co. and one for other two younger sons. Bishnu Charan De also requires one bed room for himself and for his wife and another room for his mother and unmarried sister Sikha besides one kitchen and one dining room. Thus the plaintiff No.1 requires four rooms that is three bed rooms and one study room besides one kitchen, one dining room, one thakurghar and one store. The plaintiff No.2 Bishnu requires one bed room for himself and his wife and also one bed room for his mother Smt. Kamala De plaintiff No.8 and his own unmarried sister Miss Sikha De. He also requires one kitchen and one dining room. The plaintiff No.3 Bejoy Krishna De is admittedly living in his village home at Bhastara and he attends his work of place from his village. It is the evidence of Mrityunjoy De son of Bejoy Krishna De that he requires two rooms one for himself and another for his brother who is reading in Joypuria College. The plaintiff No.4 Dulal Chandra De has stated that he does not require any room for himself and his wife. But his two sons require two bed rooms and the eldest son is an agent of Peerless and Co. and he also comes to Calcutta. As such he requires one room for his living. His second son is an electrical mechanic working in the village as such he does not require any room. It is his evidence that his two younger sons who are reading in village school require one room for their better schooling in a Calcutta School. Thus considering these evidences it is quite clear that the plaintiffs require all the five rooms comprising of the first floor and second floor of the premises No. 4C, Jagannath Sur Lane for the use and occupation of plaintiffs themselves and the members of their families. Thus considering these evidences it is quite clear that the plaintiffs require all the five rooms comprising of the first floor and second floor of the premises No. 4C, Jagannath Sur Lane for the use and occupation of plaintiffs themselves and the members of their families. It has been tried to be contended on behalf of the respondent in F.A. No. 186 of 1981 and as well as on behalf of the appellant in F.A. 317 of 1981 that the plaintiffs do not reasonably require the suit premises for their own use and occupation under section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956. This submission is not at all sustainable in view of my holding that all the rooms in occupation of the appellants in F. A. 317 of 1981 as well as in occupation of the respondents in F.A. No. 186 of 1981 are reasonably required for the use and occupation of the plaintiffs and the members of their families. The plaintiff has also proved that they have got no other reasonably suitable accommodation in Calcutta. In these circumstances the plaintiffs, that is, the respondents in F.A. No. 317 of 1981 and appellants in F.A. No. 186 of 1981 are entitled to get a decree for eviction of the tenants of the suit premises, that is, first floor and second floor of premises No. 4C, Jagannath Sur Lane. But in view of my findings hereinbefore that the notice of ejectment which was given under section 106 of the Transfer of Property Act read with section 13(6) of the West Bengal Premises Tenancy Act, 1956 was not served on the defendants tenants either through registered post or through personal service the plaintiff are not entitled to get any decree for ejectment of the tenants of first floor and second floor of premises No. 4C, Jagannath Sur Lane, even if it is assumed from the undelivered cover of the registered letter Ext. 7(a) that the registered letter containing the ejectment notice was served on 1.11.1972 the plaintiffs are not entitled to get a decree for ejectment of the tenant Rathindra Nath Hazra of second floor of premises No. 4C, Jagannath Sur Lane as the notice does not satisfy requirement of section 13(6) of the West Bengal Premises Tenancy Act that is, the notice falls short of one month expiring with the month of the tenancy. In the premises aforesaid the submissions made on behalf of the appellants in F.A. No. 317 of 1981 as well as on behalf of respondents in F.A. No. 186 of 1981 having succeeded as to the non service of ejectment notices F.A. 317 of 1981 is allowed and the judgment and decree of the court below passed in Ejectment Suit No. 297 of 1973 is hereby reversed and set aside and the suit is dismissed. F.A. No. 186 of 1981 is dismissed and the judgment and decree passed in Ejectment Suit No. 296 of 1973 is hereby affirmed. There will however no order as to costs.