1. An unsuccessful tenant has filed the instant appeal challenging the judgement and decree dated 29 June, 2019 passed in Title Appeal no. 24 of 2016 by the learned Civil Judge (Senior Division), Serampore affirming the judgement and decree of the Trial Court.
2. A suit for recovery of possession under the Transfer of Property Act was filed against the appellant alleging that despite the expiration of the period provided in the statutory notice issued under Section 106 of the Transfer of Property Act, the appellant is wrongfully and illegally occupying the same.
3. The defence, which was taken in the said suit, was that there was a divestation of the right, title and interest in favour of the present plaintiffs and, therefore, they are not entitled to maintain the suit for eviction on the ground of default having committed prior to the purchase of the said property. Secondly it was stated that the notice to quit was not served, as the postal article, which returned to the sender, contained two inconsistent remarks, i.e. “not found” and “refused”.
4. Both the Courts below disbelieved the case made out by the defendant/appellant and passed the decree of recovery of possession.
5. The learned Advocate appearing for the appellant submits that the Court ought not to have proceeded to treat the notice to be valid, legal and sufficient to terminate the tenancy, as the postal article bore two remarks “not found” and “refused”. According to him, it is the duty of the plaintiffs/respondents to prove the due service of notice by examining the postal peon and, therefore, having not done so the suit is liable to fail.
6. It is further submitted that the suit for recovery of possession on the ground of default is not maintainable if the period of default falls prior to the date of purchase of the property.
7. After conscious deliberation of the aforesaid issues, we do not find that the aforesaid pleas have any substance.
8. It is no longer res-integra that once the postal article is correctly addressed and prepaid, it is presumed that it has reached the addressee. In the instant case, the postal article was returned to the sender thereof containing the remark “refused”, which is also presumed to be a good service. Since there was another remark that the defendant/appellant was not found, it emboldened the learned Advocate for the appellant to contend that there is no presumption of due service.
9. The postal articles were tendered by the postal peon more than one occasion and if he has found on one such occasion that the defendant/appellant was not found at the relevant address and subsequently recorded that he has refused to accept the service, in absence of any strong evidence of rebuttal it cannot be said that there was no due service of notice. Once the initial onus is discharged by raising a presumption under the statute, such onus shifts to the other side to rebut the same by producing cogent materials.
10. The defendant/appellant did not take any steps to rebut the presumption and, therefore, cannot be permitted to take a stand that there was no service of the statutory notice.
11. On the second plea, we do not find that it has any legal basis for the simple reason that it is a suit for recovery of possession under Section 111(h) of the Transfer of Property Act. Once a notice under Section 106 of the Act is duly served and the suit for recovery of possession is filed after expiration of the period stipulated in the said notice, no further ground is required to be assigned. Had it been a suit under the Rent Restriction Act, which provides that the eviction cannot be made unless the grounds enumerated therein are proved, the position would have been different.
12. Since the Transfer of Property Act does not stipulate any such grounds, which are envisaged in the Rent Restriction Act and if the incident of determination of lease indicated in Section 111 is fulfilled, the suit cannot be defeated as the plaintiffs/respondents are not entitled to take advantage of the default in payment of rent prior to the date of their acquiring right, title and interest in respect of the suit property.
13. We thus do not find any substantial questions of law involved in the instant appeal.
14. The appeal is thus dismissed at the stage of Order XLI Rule 11 of the Code of Civil Procedure. With the dismissal of the appeal itself, the application, being CAN 7878 of 2019, is also dismissed.
15. There will be no order as to costs.