KAN SINGH, J. - (1.) THIS is defendants' second appeal arising out of a suit for eviction from certain promises described in para-1 of the plaint.
(2.) SMT. Anandi Bai, the plaintiff-respondent, had purchased the property in question from one Govindram on 4 8 66. Defendant Dharamdas was the tenant of Govindram and in consequence of the purchase of the property by SMT. Anandi Bai he became her tenant. The plaintiff sued the defendant Dharamdas and sought the relief of eviction on two grounds: (1) that of default, and (2) that the property was bona fide and reasonably required by the plaintiff for residence. Prior to the filing of the suit the tenancy was terminated by the plaintiff by a notice dated 25-1-67. It may be mentioned that during the pendency of the suit Dharamdas died and his legal representatives Permanand and Jhamandas were brought on record in his place. The defendant-tenant contested the suit. It was averred by him that he was in occupation of the premises on the second floor of the house together with the verandah on the third floor of the house since 1948. He claimed that he was allotted the property by the Custodian of Evacuee Property as he happened to be a displaced person from Pakistan. It was denied that the plaintiff needed the property for her own residence or that her need was bona fide and reasonable. He further denied that he was a defaulter in the payment of rent. The validity of the notice was also denied. The learned Munsif, Ajmer City (West), in whose court the suit was filed, framed, as many as 13 issues. Both the parties led their evidence. The learned Munsif, on consideration of the evidence, decreed the suit both for eviction as well as for arrears of rent amounting to Rs. 102/ -. He further awarded Rs. 16/- as damages for the use and occupation of the premises from the date of the suit. Aggrieved by the judgment and decree of the learned Munsif the defendant-tenant went up in appeal to the court of the District Judge, Ajmer. The learned District Judge assigned the appeal to the Additional District Judge. Ajmer. The learned Additional District Judge, by and large, accepted the conclusion reached by the learned Munsif and accordingly dismissed the appeal. It is in these circumstances that the tenant has come in second appeal to this Court. Learned counsel for the defendant-appellant has raised a number of grounds, but some of them will not survive for consideration. It is to be noted that Dharmdas, the original tenant, died during the pendency of the suit. If his tenancy can be said to have been terminated by a valid notice, then his position will be that of a statuary tenant and consequently the protection against evicton that could be claimed by a statutory tenant under sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the "act", cannot be claimed after the death of such statutory tenant by his legal representatives and, therefore, the principal question that was first argued by learned counsel for the appellant was whether the tenancy had been terminated by a valid notice. The notice that is alleged to have been served by the landlord on Dharam Das is Ex. 4 on record and it is dated 25-1-67. Learned counsel submitted that this notice had not been served on Dharamdas. It purports to have been signed by Permanand, one of the legal representatives of Dharamdas. But, in the first place, according to learned counsel, the plaintiff has failed to prove by reliable evidence that Parmanand was the person who received the notice and in the alternative it was submitted that even if Permanand can be held to have received the notice such a receipt by him would not be valid in the eye of law, as according to plaintiff's evidence, the notice Ex. 4 was received by Permanand not at the house where Dharamdas resided, but at another place namely, at the shop of Permanand in another locality. Such a service, according to learned counsel, was not valid according to the provisions of sec. 106 of the Transfer of Property Act. It was next submitted that the notice Ex. 4 related only to a part of the tenanted premises and was consequently bad, as the tenancy could not be split up. It has been pointed out that the notice was only in respect of the second floor, but it is established by documentary evidence that besides the apartment on the second floor the tenant was having in his lawful occupation the third floor as well which consisted of a covered verandah. On the same ground it is urged that the suit for eviction from the part of the premises was not maintainable. Learned counsel cited Manmatha Pal vs. Sarada Prosad (l) in support of his contention. As regards the mode of service of notice, learned counsel invited attention to Harihar Banerji vs. Ramshashi Roy (2 ). Learned counsel for the appellant further argued that issue No. 7 relating to the jurisdiction of the court was wrongly decided in that the notification defining the jurisdictions of the court of Munsif City (West) and Munsif City (East) was not correctly applied. According to learned counsel, the learned Munsif, who tried the suit, had no territorial jurisdiction in the matter. Learned counsel further sought to challenge the findings of the learned Additional District Judge both regarding the default in the payment of rent as well as about the bona fide personal necessity of the landlord. As I have already observed, the question just mentioned would not arise in the event of the notice regarding termination of the tenancy being found valid. Now, so far as the service of the notice terminating the tenancy is concerned, it is a question of fact whether the notice was received by Permanand and in token of it he signed the postal receipt Ex. 2. Kanhaiyalal P. W. 1, the Postman, was examined on this point. Both the courts have believed his statement. It is, therefore, not open to learned counsel for the appellant to question the correctness of this finding. Even so, when the statement was read over to me, I did not find anything improbable in what Kanhaiya Lal had stated. It is true, in his examination-in-chief Kanhaiyalal stated that he went to Dharamdas's house where his son Permanand was also there and as the hands of Dharamdas were shaking the notice was accepted by Permanand and in his cross-examination he stated that the notice was accepted by Permanand at his shop. It is remarkable that the attention of the witness was not drawn to this apparent contradiction in his statement which ought to have been done. Any way, it may be due to Kanhaiya Lal's forget fulness that the discrepancy in the two portions of the statement has crept in. Be that as it may, there is no reason to discard the testimony of Kanhaiyalal regarding the fact that the acknowledgment receipt Ex. 2 bears the signatures of Permanand. Permanand had not denied his signatures in his examination-in-chief, but when cross-examined by the plaintiff he had denied his signatures on Ex. 2. Nevertheless he has not examined any handwriting expert for showing that Ex. 2 did not bear the signatures of Permanand. In the circumstances the finding of fact cannot be said to be vitiated by any error of law.
(3.) THE next question that calls for consideration is whether the notice could have been delivered to Permanand, Dharamdas's son instead of Dharamdas himself and that too at Parmanand's shop and not at the house of Dharamdas. Sec. 106 of the Transfer of Property Act reads as follows : "s. 106. Duration of certain leases in absence of written contract or local usage - In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy ; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or, (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. " THEre are two modes in which a notice terminating the tenancy can be served; the first one is that of sending it to the party by post, and the second mode is by tendering or delivering personally to such party or to one of his family or servant at his residence or if such tender or delivery is not possible, affixing to a conspicuous part of the property. In other words, according to the plain language of this section it may be sent by post to the party or may be tendered or delivered personally in the manner indicated in the section. It is not right, in my opinion, to read the requirements of the second mode in to the first mode of sending the notice by post. THE section does not lay down how the postman is to deliver the notice to the addressee. That is a matter that will be governed by the relevant rules of the Post Office as to how letters or registered letters are to be delivered by the postmen. Any way, from the statement of Kanhaiya Lal it is clear that he first went to the house of Dharamdas and offered the registered letter to him and it was at the behest of none other than Dharamdas that he carried the registered letter to his son Permanand at his shop and the same was delivered to Permanand. THErefore, in such a case it cannot be held that the notice was not sent by post to Dharmdas or for that matter not tendered to him by the postman. It was undoubtedly tendered to him by the postman, but the actual delivery was made by the postman to Dharamdas's son on his request. THEre is, therefore, no flaw in the mode of service of notice through post. Even in Harihar Banerji vs. Ramshashi Ray (2) their Lordships, inter alia, observed : "but it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter himself, or that he cannot do so by the hand of another person, or that if another person does sign it on the addressee's behalf the presumption is that it never was delivered to the addressee himself mediately or immediately. For instance, if a servant in the addressee's house saw a notice handed in by the postman carried to the addressee, and handed to him that servant could certify that it was delivered to his master and could, if requested by the master, sign the receipt on the latter's behalf though he was not the agent of the master authorised to take delivery on his, the master's behalf. " In view of the above observations when the registered letter was first tendered to Dharmdas and at his behest was carried to Permanand and then it was accepted by him the letter shall be deemed to have been delivered to Dharamdas. Learned counsel wanted to rely on the following observations in this judgment : "the personal tender or delivery of the notice may take place anywhere ; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. " THEse observations, in my humble view, relate to the second mode of service namely, that of personal delivery through means other than that of sending the notice by post. In the present case as the registered notice was sent by post at the correct address of Dharamdas and was eventually delivered to his son Permanand and which was, as per the postman, according to the behest of Dharamdas the service of the notice was good. I may next turn to the other argument whether the notice is bad because it related to only a part of the premises let out to the tenant on for that matter the suit could not have been filed only for a part of the premises let out. There is no manner of doubt that the whole of the subject matter of the tenancy is to be included in the notice terminating the tenancy as also in the suit for ejectment ; vide A. I. R. 1939 Calcutta 651 (1), but, whether this was so is a question of fact. In the present case the learned Additional District Judge came to the conclusion, on consideration of the several documents, that as the third floor consisted only of a covered verandah and an open roof the defect cannot be considered fatal to the plaintiff's case and the plaintiff will be taken to have sued the defendant in respect of the tenancy existing between the parties. The learned Judge also referred to the defendant's stand that the third floor was also included in his tenancy and observed that in the circumstances the decree can be passed in respect of whole of the premises comprised in the tenancy. In the present case, there was no written indenture or any rent note executed by the tenant in favour of the landlord. Present is a case of a tenancy being created by operation of law. Dharamdas was a displaced person from Pakistan and was allotted a portion of an evacuee property by the Custodian of Evacuee Property in Rajasthan. The property has been later sold by the Government of India. This could be done after the legal ownership of the evacuee in the property was terminated with the acquisi tion of the property by the Government of India in accordance with the provisions of the Displaced Persons Compensation and Rehabilitation Act, 1954. In accordance with that Act, on a sale of the property to a person other than the displaced person who was allotted the property the allottee would become the tenant of the vendee. The order of allotment in favour of the defendant has not been produced by him. There is no doubt the report of occupation Ex. A/1, but one cannot say whether the lady really took possession of the portion of the premises allotted to her or of something more. It appears that subsequently Govindram the vendee, had filed a suit against Dharamdas alleging that he had taken unlawful possession of the third floor. A copy of the judgment in the case has been placed on record and it is Ex. A/10. Perusal of that judgment only shows that Dharamdas was not in unlawful possession of the third storey, but it does not establish that he was in possession as an allottee or a tenant. This judgment, at any rate, shows one thing viz. , that Govindram, the predecessor in title of the plaintiff, was not regarding Dharamdas as a tenant, but as a trespasser. The other document, to which reference is made are receipts Exs. 5 and 6. They are again foils of the receipts passed by the landlord Govindram in favour of Dharamdas when he paid the rent for the premises. The counter foils are signed by Dharamdas as well. These receipts show that Dharamdas was paying rent for the second floor and thus by operation of law as well as by attornment by paying the rent, Dharamdas was the tenant of Govindram in respect of the second storey. ;