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2012 DIGILAW 698 (HP)

Kulbhushan v. Satya Devi

2012-10-09

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. 1. This is a regular second appeal filed by the appellant under section 100 C.P.C against the judgment and decree, dated 29.3.2007, passed by the learned District Judge, Kangra, vide which he affirmed the judgment and decree, dated 13.1.2005, of the court of learned Civil Judge (Junior Division), Indora, District Kangra, H.P., decreeing the suit of the respondents for possession and for recovery of the arrears of rent. 2. Briefly stated, the facts of the case are that the respondents, hereinafter referred to as the plaintiffs, filed a suit for possession by way of ejectment of a shop and for recovery of 18,850/- on account of rent and for recovery of `462/- on account of use and occupation charges as against the appellant, hereinafter referred to as the defendant. It was alleged by the plaintiffs that the shop, marked as ABCD in the site plan, was rented out by the plaintiffs to the defendant on a monthly rent of `325/-in March, 1990. The defendant was in occupation of the shop as tenant and was running the business of Tv repair etc. The plaintiffs alleged that they required the shop for their personal use and occupation to run their business and requested the defendant to vacate the shop. A notice under Section 106 of the Transfer of Property Act was served upon the defendant to vacate the shop and to pay the arrears of rent and as the shop was not vacated and the arrears of rent were not paid, hence the suit for possession and for recovery of the amount. 3. In written statement, the defendant pleaded that the shop was rented out on monthly rent of `300/- in the year 1988, which was enhanced in 1991-92 to `325. The defendant also pleaded that he has paid the rent upto December 1999 and since the plaintiffs refused to take the rent after January, 2000, he has is not in arrears of rent for the period March 1995 to 31.12.1999. The defendant also took up the plea that no notice was issued to him under Section 106 of the Transfer of Property Act to vacate the shop and as such, the suit was not maintainable. 4. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs are entitled for possession of the shop by way of ejectment, as alleged? OPP 2. 4. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs are entitled for possession of the shop by way of ejectment, as alleged? OPP 2. Whether the plaintiffs are entitled for the recovery of Rs.18,850/- on account of arrears of rent, as alleged? OPP 3. Whether the plaintiffs are entitled for the recovery of Rs.462/- on account of use and occupation of the shop in dispute, for the period from 01.01.2000 to 15.02.2000? OPP 4. Whether the suit is not mountable in the present form? OPD 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 6. Whether the plaintiffs have no cause of action to file the present suit? OPD 7. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.1 to 3 in favour of the plaintiffs and as against the defendant and consequently decreed the suit of the plaintiffs in full. On appeal, these findings of the learned trial Court were upheld by the learned Appellate Court. Being aggrieved, the defendant has filed the present second appeal. 6. The appeal was admitted on the following substantial question of law: “1.Whether the plaintiff can maintain present suit for possession against the lawful tenant (defendant) on the basis of mere entry of occupation recorded in the Column of Possession of JAMAWANDI 1999-2000 with numerous other persons in respect of SHAMLAT LAND of village on which shop in question stood constructed? 2. Whether the notice under Section 106 of Transfer of Property Act, claimed to have been refused by the defendant on the basis of report of some Chokidar of Post office where two Postmen stood posted and working is a suspicious circumstance in service of mandatory notice on the defendant? 3. Whether lawful presumption of delivery of registered letter by Post Office can be lawfully drawn under General Clauses Act where registered letter was specifically entrusted to Chowkidar, whose job is of watch and ward during night, instead of through two regularly working Postmen in the said Post Office?” 7. I have heard the learned counsel for both 8. 3. Whether lawful presumption of delivery of registered letter by Post Office can be lawfully drawn under General Clauses Act where registered letter was specifically entrusted to Chowkidar, whose job is of watch and ward during night, instead of through two regularly working Postmen in the said Post Office?” 7. I have heard the learned counsel for both 8. During the course of hearing, the learned the parties and have gone through the record of the case counsel for the appellant had not pressed substantial question of law No.1 and had confined his arguments on substantial questions of law No.2 and 3, as mentioned above. The submissions made by the learned counsel for the appellant were that the report on the notice under Section 106 of the Transfer of Property Act that the defendant had refused to take the notice was made by some Chowkidar of Post Office where two Postmen were also working and as such there was no proper service of the notice upon the defendant. It was also pleaded that the presumption of delivery of registered letter cannot be drawn once the job was entrusted to a Chowkidar, despite the fact that two regularly posted Postmen were working in the Post Office. 9. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons recorded therein. 10. The plea in regard to non-service of notice was taken in para 3 of the written statement, but no separate issue was claimed or framed in this regard, but both the courts below have dealt with the evidence under issue No.1 and have answered the plea taken by the defendant in his written statement in this regard. 11. A perusal of the evidence led by the parties, as discussed by the learned trial Court as well as by the learned Appellate Court, clearly shows that there is statement of PW-2 Devi Chand, Sub Post Master, who had stated that thought the person who effected the service, namely, PW-1 Shiv Kumar was not working as a Postman, but was on duty and in the absence of regular two Postmen, he had deputed him to effect service and he has also proved the chart of duties assigned to the witness Ext.PW-2/A prepared from the record. There is no bar in the Post Master deputing a Class-IV employee to effect the service or work as a Postman to effect service of the notice in the absence of the regular Postman posted in the Post Office. No motives can be attributed to him in assigning the duty. The statement of PW-1 Shiv Kumar shows that he had gone to the spot and twice the defendant was not available and on the third occasion, when he was available, he had refused to take the notice for which he submitted the report and there is an entry proved from the record of the Post Office in this regard, though the original report was destroyed, as per the Rules, after one year or so. All these aspects have been duly considered by the learned Appellate Court in paras 12 to 27 under point No.1 and whole evidence has been discussed by the learned Appellate Court. It has been concluded by the learned Appellate Court that since the Postman was on leave, the duty was entrusted to PW-1 Shiv Kumar, who made the report. The extract of duty order and the report made by PW-1 Shiv Kumar has been duly proved and discussed by the learned District Judge as well as by the learned trial Court. In view of the fact that the evidence was properly discussed and right conclusion was drawn by the learned District Judge and the learned trial Court, no case is made out for reappraisal of the whole evidence led in this regard. 12. The only point urged was in regard to legal presumption as to whether the job could be entrusted to another Class-IV employee or presumption of service can be drawn. In view of the fact that the job was duly entrusted to another Class-IV employee, who had gone to the spot and made the service, presumption of due service can be drawn as against the defendant and in favour of the plaintiffs. 13. Therefore, in view of the above discussion, there is no merit in the plea raised by the learned counsel for the appellant that there was no due service and as such the findings of the learned trial Court are liable to be affirmed. No other point was urged during the course of arguments and as such the appeal filed by the appellant is dismissed. 14. The appeal stands disposed of accordingly. No other point was urged during the course of arguments and as such the appeal filed by the appellant is dismissed. 14. The appeal stands disposed of accordingly. However, both the parties are left to bear their own cost throughout.