Shankar Dayal Khare, J. - (1.) In this second appeal the main point for consideration is - What presumptions may be drawn when it is found that a combined notice of demand of rent under Sec. 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) and Sec. 106 of the Transfer of Property Act (as amended by Act 20 of 1929) was sent by registered post by the landlord to the correct address of the tenant, but was received back by the landlord undelivered with an endorsement made by some one in the post office that the addressee had refused to take the notice on a particular day.
(2.) The plaintiff had not led any evidence to show that the endorsement had been made by the postman concerned. In second appeal filed by the tenant the contention is that in the absence of such evidence having been led on behalf of the plaintiff no presumption of service could be made under Sec. 114 of the Indian Eviction Act.
(3.) The appeal came up for hearing first before a learned single Judge, who formulated three points (mentioned hereinafter) for the consideration of a larger Bench, The Division Bench before which this appeal was listed noticed that there was some conflict of opinion in two decisions given by the two Division Benches of this Court during the last two years. In the case of Budhu v/s. Smt. Kamla Narain, 1968 ALJ 707 it was held by a Division Bench of this Court that a presumption about the service of such notice could be raised under Sec. 114 of the Indian Evidence Act, and, when so raised, will be a presumption of fact On the other hand it was held in the case of Dwarka Singh v/s. Ratan Singh Ahuja, 1969 AWR 477 :, 1969 ALJ 849 that in a case like this a presumption with regard to service of notice will have to be raised under Sec. 27 of the General Clauses Act, and that will be a presumption of law. The following three points, originally formulated by the learned single Judge, have, therefore, come up for consideration before this Full Bench : - - (1) Whether a notice under Sec. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Sec. 106 of the Transfer of Property Act, has to be served on the tenant personally? (2) Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him? (3) Whether in the circumstances of the present case the Courts below were right in raising the presumption under Sec. 114 of the Evidence Act in favour of the landlord?;