S.D.Khare, J. - (1.) IN this second ap peal the main point for consideration is What presumptions may be drawn when it is found that a combined notice of demand of rent under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) and Section 106 of the Transfer of Property Act (as am ended by Act 20 of 1929) was sent by re gistered 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 evi dence to show that the endorsement had been made by the postman concerned. In second appeal filed by the tenant the con tention is that in the absence of such evi dence having been led on behalf of the Plaintiff no presumption of service could be made under Section 114 of the Indian Eviction Act. The appeal came up for hearing first before a learned single Judge, who formulated three points (mentioned here inafter) 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 deci sions given by the two Division Benches of this Court during the last two years. In the case of Budhu v. Smt. Kamla Narain, 1968 All LJ 707 it was held by a Division Bench of this Court that a pre sumption about the service of such notice could be raised under Section 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. Ratan Singh Ahuja, 1969 All WR (HC) 477 = 1969 All LJ 849 that in a case like this a pre sumption with regard to service of notice will have to be raised under Section 27 of the General Clauses Act and that will be a presumption of law. The following three points, originally formulat ed by the learned single Judge, have, therefore, come up for consideration before this Full Bench:- (1) Whether a notice under Section 3of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 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 re gistered post by producing the post man 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 S. 114 of the Evidence Act in favour of the landlord?
(3.) WHENEVER a notice for ejectment under Section 106 of the Transfer of Pro perty Act is attempted to be served on a tenant by means of a registered post,, Riving the correct address of the tenant,, but is received back with an endorsement "not met" or "refused" the question arises as to what presumptions can safely be drawn regarding the service of notice where the actual proof of service is want ing.;