- (1.) Heard Sri K.K. Dubey learned counsel for the petitioner and Sri Ram Jee Sexana appearing for the contesting respondent no. 2.
(2.) The facts relevant for the purpose of the case are that landlord respondent no. 2 to 6 filed SCC suit against the petitioner for arrears of rent and ejectment from the shop in dispute. The suit was contested by the tenant- petitioner by filing written statement. The trial court framed following 5 issues; i) Whether shop in dispute was constructed in 1984 and if yes, its effect. ii) Whether service of notice is sufficient. iii) Whether tenant is entitled to the benefit of Section 39 and 20 (4) of the U.P. Act XIII of 1972. iv) Whether the suit is maintainable. v) Any other relief. Both the parties led evidence on the basis of which, the trial court held that shop was constructed in 1984 and is not within the purview of the Act XIII of 1972, the tenant-petitioner is not entitled to the benefit of Section 39 and 20 (4) of the Act and decided the issues no. 1 and 3 accordingly.
(3.) In so far as issue no. 2 and 4 are concerned the trial court held that service of notice under Section 106 of Transfer of Property Act terminating the tenancy was not sufficient and as such suit is not maintainable. Only landlord respondent filed a revision. The tenant -petitioner did not challenge the finding on issues no. 1 and 3 which were against him. The rivisional court set aside the finding recorded by the trial court on issue no.2 and remanded the case back. The rest of the findings of trial court were confirmed. It has been urged by the learned counsel for the petitioner that rivisional court has wrongly reassessed the evidence and substituted its own finding with regard to service of notice and it was beyond its jurisdiction. It has further been contended that by the impugned judgment the case has been remanded back to the trial court but in view of the finding that notice has been validly served and finding on other two issues having been confirmed the suit virtually stands decreed. In reply learned counsel for the respondents has tried to justify the impugned order. I have considered the arguments advanced by the learned counsel for the parties and perused the record. It was pleaded by the landlord-respondent that petitioner-tenant was in arrears of rent since 4.7.1986. Notices dated 10.9.1986, 26.10.1987, 15.7.1988 and 16.8.1988 demanding arrears of rent and terminating the tenancy were sent by registered post. Notice dated 10.9.1986 was though served but acknowledgement was returned back without any signature of the tenant - petitioner. The other three notices were sent back unserved in connivance with the postman.;