K.N.SINGH,J. - (1.) THIS is a defendants' revision application under section 115 of the Code of Civil Procedure against the judgment and decree of the Additional District Judge, Saharanpur, decreeing in plaintiffs' suit for defen­dants ejectment.
(2.) THE plaintiff-opposite parties filed a suit against the defendant-applicants for recovery of arrears of rent and ejectment. The defendants raised two pleas, firstly, they contended before the courts below that since they had de­posited the entire rent in the court they were entitled to the protection of section 20 (4) of U. P. Act XIII of 1972. The second plea raised by them was that no notice as contemplated by section 106 of the Transfer of Property Act demanding rent and terminating their tenancy had been served on them prior to the filing of the suit. The trial court decided the first question in favour of the defendants and granted benefit of section 20 (4) of U. P. Act XIII of 1972. On the second question the trial court held that the notice under section 106 of the Transfer of Property Act had been served on the defendants. On these findings the trial court decreed the suit for arrears of rent but it dismissed the plaintiffs' suit for ejectment of the defendants. The plaintiffs filed revision application under section 26 of the Small Cause Court Act against the decree of the trial court. The Additional District Judge, Saharanpur, allowed the plaintiffs' revision and decreed the suit for defendants ejectment. The Addi­tional District Judge held that the defendants had failed to deposit the entire arrears of rent along with interest at the rate of 9% thereon and the costs of the suit on the first date of hearing of the suit as required by section 20 (4) of the Act, therefore, the defendants were not entitled to the benefit of the said section. On the question of service of notice the findings of the trial court were affirmed. Aggrieved, the defendants have preferred this revision against the judgment and decree of the Additional District Judge. Learned counsel for the defendants-applicants did not challenge the finding of the court below on the first question relating to the applicability of section 20 (4) of the Act. He confined his attack on the second question only. He urged that the courts below exercised their jurisdiction with material illegality in holding that the notice under section 106 of the Transfer of Property Act determining the defendants' tenancy was served on them. It appears that a notice under section 106 of the Transfer of Property Act was lent by the plaintiffs through registered post of the defendants' correct address on 1-8-1962. The endorsement on the registered envelope made by the postman indicated that the defendants refused to accept the notice on 12.8. 1972. The courts below held that the personal service of the notice was not necessary and as the registered envelope containing the correct address of the defendant had been posted to them and the endorsement made by the postman indicated that the defendants refused to accept the same, therefore the notice must be deemed to have been properly served on the defendants. Learned, counsel for the defendants-applicants urged that the presumption of service of notice stood rebutted on the defendant's denial of the service of the notice on oath. Thereafter onus to prove service of notice shifted on the plaintiffs. Since the plaintiffs failed to discharge that onus by producing the postman of the witnesses in whose presence the defendants were alleged to have refused to accept the notice, the plaintiffs failed to prove service of notice on the defendants-applicants. This question has been considered by this court and other Courts on a number of occasions. There appears to be two divergent views. However, there is unanimity on the question of raising presumption. The consensus of the various decisions in that where a regis­tered envelope containing correct address of the addressee is sent to him by registered post and if the same is received back with the endorsement of refusal, in such a case the Court would be entitled to raise a presumption that the notice was duly served on the addressee. This principle was laid down by a Full Bench of this Court in Gana Ram v. Phoolwati.(A.I.R. 1970 Alld. 446) But the question whether the presumption stood rebutted on a mere denial by addressee was not considered by the Full Bench and there appears to be divergence of opinion on this question.
(3.) IN Asa Ram v. Ravi Prakash (1966 A.L.J. 421) S. S. Dhavan J. held that where the land­lords sent a notice terminating the tenancy by registered post and it was returned back by the post office with the endorsement of refusal and the tenant denied receipt of the notice, the denial of the tenant was not sufficient to rebut the presumption of receipt unless he was believed by the Court. In Nirmala Bala v. Provat Kumar Basu, (1946 52 C.W.N. 659) similar view was taken. In Ramnath v. Angan,(1978 U.P. R.C.C. 170) a Division Bench of this Court relied on the presumption of service of notice in spite of the defendants denial of service of notice. In Mushiyat Ullah v. Abdul Wahab, (A.I.R. 1972 Alld. 539) a learned Single Judge of this Court held that the presumption relating to service of notice under section 27 of the General Clauses Act and Section 114 of the Evidence Act on the refusal of the addressee does not stand rebutted on a bare denial of service by the defendant-tenant.;