Umeshwar Pandey - (1.) -Heard the learned counsel for the appellant.
(2.) THE plaintiff - appellant challenged the order passed by the Cantonment Board under Section 256 of the Cantonments Act, 1924 (hereinafter called as the Act) stating that no notice as required under Section 185 of the said Act was ever served upon him and the direction for demolition of the building erected by him is wholly illegal and uncalled for, therefore, the prayer for the relief of permanent injunction. This suit was contested from the side of the Cantonment Board advancing the pleadings that the notice under Section 185 of the Act was duly served upon the wife of the plaintiff Smt. Babita Jain and when no compliance of the said notice was made nor any appeal was filed as provided under Section 274 of the Act, the orders under Section 256 of the Act were passed. The contention of the plaint regarding no service of the notice was specifically refuted by the respondent-defendant. It has also been pleaded that the suit was incompetent and barred under Section 41 of the Specific Relief Act and the alternative remedy of appeal as provided under Section 274 of the Act was not availed. The courts below recording concurrent findings have held that the service of notice upon the wife of the plaintiff-appellant was sufficient and she had received the same and in its acknowledgment had put her signatures on the counter foil of the said notice. The courts below also found that the suit was not competent as the remedy of appeal provided under Section 274 of the Act was not availed of. Accordingly, the trial court dismissed the suit and plaintiff's appeal before the lower appellate court was also dismissed.
(3.) THE learned counsel appearing for the appellant submits that since the service of the notice as claimed by the defendant in its pleading is not in the manner as provided under Section 254 of the Cantonment Act there could not be a legal presumption as to the said alleged service by the Court. It is submitted that under sub-section (1) of Section 254 of the Act if the addressee of the notice is not found at the place the notice should be served by giving or tendering the same to any adult male member or servant of the family and since the wife of the appellant is not a male member of the family, the delivery of the notice made to her should not be treated as sufficient service. THE learned counsel has further submitted that since the notice under Section 185 of the Act was not served upon the plaintiff-appellant, occasion for filing the appeal as provided under Section 274 of the Act did not arise and the suit as such cannot be said to be barred by Section 41 of the Specific Relief Act. On perusal of the judgments of the courts below and other documents filed with the paper-book it is found that the specific plea in the defence taken by the respondent Cantonment Board is that the service of the notice under Section 185 of the Act was done upon the wife of the appellant and in an acknowledgment to that she appended her signature on the counter foil. This plea has been duly substantiated and proved in the statement of the defendant's witness who filed his affidavit and specifically stated that the notice was delivered at the residence to the plaintiff's wife, who was also residing and occupying the same building having unauthorised construction. This witness of the defendant has also been subjected to thorough cross-examination by the plaintiff's counsel, but no challenge at any place, even in the least, has been made regarding the fact deposed by the witness relating to the service of the notice upon plaintiff's wife. There is no suggestion to this witness from the side of the plaintiff that the notice was not taken at the address given and that it was not handed over to plaintiff's wife. Sub-section (2) of Section 254 of the Cantonment Act provides that the notice can be also served by giving or tendering the same upon one of the occupiers also if there are more than one. In the allegedly unauthorised constructions erected by the plaintiff his wife is also one of the occupiers and if the notice has been served upon her that notice can rightly be treated as sufficient service and no legal objection in respect thereto is entertainable at all. Therefore, the findings recorded by the court below with regard to the service of the notice as sufficient, are wholly justified and do not require any interference in this second appeal.;