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2003 DIGILAW 1682 (MAD)

Sethuraman Chettiar v. Saraswathi

2003-10-17

R.BALASUBRAMANIAN

body2003
JUDGMENT: The second appeal came for admission on 15.10.2003. The decree holder is represented by a learned counsel. The judgment under challenge is that the notice issued under Sec.106 of the Transfer of Property Act had not been served at all and the suit being a one for ejectment, the termination of tenancy under Sec.106 of the Transfer of Property Act is a must. 2. To verify the statement at the bar made by the learned counsel for the judgment debtor, whether the notice under Sec.106 of the Transfer of Property has been sent or not whether the same had been served or not, I directed the Registry to get the entire records from the lower Court. The records have reached. Perused the records. 3. On hearing the learned counsel for the appellants, the second appeal is admitted and the following substantial question of law definitely arises for consideration in the second appeal. “Whether in the absence of service of the notice under Sec.106 of the Transfer of Property Act terminating the tenancy, is a suit for ejectment maintainable?” 4. Heard the learned counsel on either side. Ex.A-7 is the copy of the notice stated to have been sent, terminating the tenancy. Ex.A-7 is dated 3.2.1999. The allegation in the plaint is that, “The registered legal notice sent to the defendant has got itself returned due to the defendants maneuvering with the postal department. Anyhow, the plaintiff (wrongly typed as defendant) has technically and legally complied with the requirements of Sec.106 of the Transfer of Property Act.” 5. Except the plaintiff, none else has been examined. In other words, none from the postal department, either from the office where the registered notice was accepted for onward transmission or from the office where the registered notice was received for delivery, was examined. The endorsement in the returned postal cover marked in this case as Ex.A-6 shows “To sender”. There is no other endorsement in the cover made by the postal department on any of the following lines. ‘Addressee not available - instructions left - not claimed.‘ (or) ‘Addressee not found.‘ (or) ‘There is no such addressee. ‘or ‘Refused’.If the endorsement is under the first head viz., “addressee not available - instructions left u not claimed”, probably the Court can presume service of notice. But, in the case on hand, no such endorsement is available on the cover. ‘Addressee not available - instructions left - not claimed.‘ (or) ‘Addressee not found.‘ (or) ‘There is no such addressee. ‘or ‘Refused’.If the endorsement is under the first head viz., “addressee not available - instructions left u not claimed”, probably the Court can presume service of notice. But, in the case on hand, no such endorsement is available on the cover. As per the postal manual, when the addressee is not available, the postal authorities leave instructions about the receipt of the letter and then await the addressee to come and claim the letter by holding it for about seven days. None of the endorsement is available in the returned cover Ex.A-6. 6. Therefore, to hold that notice under Sec.106 of the Transfer of Property Act has been validly served, is definitely not supported by legal evidence. If there is no valid service of the notice under Sec.106 of the Transfer of Property Act, which is a condition precedent for instituting the suit for ejectment, then the suit itself is not maintainable. Accordingly, the question of law framed is answered in favour of the appellant and the second appeal is allowed, setting aside the judgment under challenge with no costs throughout. The dismissal of the suit is with liberty to the plaintiff to terminate the tenancy once again, if so advised, and then initiate fresh proceedings for any appropriate relief. Consequently, connected C.M.P.No.7859 of 2003 is closed.