K.N.SINGH,J. - (1.) THIS is a plaintiff's application in revision under section 115 of the Code of Civil Procedure for setting aside the judgment and decree of the courts below dismissing their suit.
(2.) THE plaintiff-applicants filed a suit for ejectment of the defendants from the building in dispute and for recovery of Rs. 835/- as arrears of rent and Bhumi Bhawn Kar. The defendants contested the suit, inter alia, on the ground that no notice as contemplated under section 106 of the Transfer of Property Act had been served on them. The trial Court upheld defendants contention and held that their tenancy had not been determined prior to the filing of the suit as no notice under section 106 of the Transfer of Property Act was served on them. It decreed the suit for recovery of arrears of rent but it dismissed the plaintiffs' suit for defendants' ejectment. On plaintiffs' revision, the Addl. Distt. Judge, Kanpur affirmed the findings of the trial court. The only issue which arises for determination is whether notice under section 106 of the Transfer of Property Act was served on defendant no. 1 in accordance with law. The plaintiffs case was that they sent notice under registered cover on the correct address of the defendants but they refused to accept the same. On the other hand, the defendant contended that notice was never tendered to them and they never refused to accept the same. Jamuna Pd. defendant No. 1, examined himself in the witness box and denied service of the notice. The plaintiffs, on the other hand, examined the postman who had made endorsement of refusal on the registered cover. The trial court on appreciation of the evidence recorded a finding that the notice was never tendered to the defendant No. 1 and, therefore, no presumption about service of notice could arise. The trial court's finding was affirmed by the lower revisional court.
(3.) LEARNED counsel for the applicants urged that the findings recorded by the two courts are vitiated as they have misread the evidence and have evaluated the same in a manner not permissible under the law. Learned counsel referred to the trial court's observation that the postman had noted refusal of the addressee on 29th April, 1970, therefore, there was no occasion for noting the refusal on 30th April, 1970. The Additional District Judge also observ­ed that even though the postman in his statement before the trial court proved the endorsement made by him on the envelope, he did not, however, state that he had actually tendered the registered envelope to Jamuna Prasad defendant that he had refused to accept the same. Learned counsel urged that these are no valid considerations for rejecting the testimony of the postman. The landlord did what was possible under the law and the courts below wrongly rejected the testimony of the postman.;