Hon'ble Dr. KOTHARI, J.—The present first appeal has been filed by the defendant – tenant – Ram Pal s/o Mahadev Prasad under Section 96 CPC aggrieved by the judgment and decree dated 02.05.2011 for eviction of a suit shop situated at Nokha, district Bikaner, in which the defendant – appellant is carrying on the business in the name and style of M/s. Kanchan General Store, Pancharia Market, Ghantaghar, Nokha, Tehsil Nokha, district Bikaner.

2. The plaintiff / lessor / landlord – Sohanlal s/o Hiralal by caste Pancharia, filed a suit on 25.01.2005, which was registered as 43/2005, which was later on registered as Suit No.129/2008 – Sohanlal vs. Rampal and came to be decreed by the learned trial court on 02.05.2011. According to the plaintiff, the lease / tenancy in question was terminated after serving a notice under Section 106 of Transfer of Property Act dated 22.11.2004 and sending the same by registered A.D. post to the defendant - lessee at the address of the suit shop on 22.11.2004 itself. On the acknowledgment receipt of which, the signatures of Rampal's adult son, Shri Suresh vide Ex.3 were obtained for service on 23.11.2004.

3. The learned trial court decided the said issue in favour of the plaintiff holding that the service under Section 106 of the Transfer of the Property Act terminating lease, was proper and in accordance with law on the said son Suresh, comparing his signatures on Ex.3 A.D. with another document Ex.7 – a letter dated 19.01.2004 addressed to the defendant's business firm M/s. Kanchan General Store by M/s. Pancharia Transport of India, the plaintiff's another business firm – a Transport Company, in which the acknowledgment of receipt by the said defendant's son were taken and comparing the signatures of the said son Shri Suresh on these two documents Ex. 3 and Ex.7, the learned court below came to the conclusion that the service on said son Suresh was in accordance with law and consequently the tenancy / lease stood terminated and accordingly the eviction suit was decreed, since in Nokha, Rent Control Act did not apply at that point of time. Being aggrieved by the same, the defendant – tenant – appellant – Rampal has preferred this first appeal in this Court, which was filed on 23.05.2011.

4. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. D.D. Chitlangi submitted that the tenancy was not terminated in accordance with Section 106 of the Transfer of Property Act as the service of the notice Ex.1 dated 22.11.2004 was not effected in accordance with Section 106 (4) of the Act. According to Mr. Thanvi, learned counsel for the appellant – defendant the word “at his residence” in Section 106(4) of the Act governs and restricts the provisions to the two modes of service prescribed in Section 106(4) of the Act, namely (i) that such registered notice is either be sent by post to the party who is intended to be bound by it or, (ii) be tendered or delivered personally to such party, or to one of his family or servants at his residence, or if such service is not practicable, affixed to a conspicuous part of the property as per the second part of Section 106 (4) of the Act.

5. Learned counsel urged that not only the defendant Rampal (DW-1) denied the signatures of his son Suresh on the said Ex.3 – Acknowledgment Receipt and also stated before the Court that the said son Suresh was not doing business with him regularly and, therefore, service upon him by the said registered post could not be taken as sufficient service, as the same was not effected at the residential address of the defendant, which in any case was different than the shop address, namely being at Ward No.2, Udhampura Mohalla, Nokha, whereas shop address was M/s. Kanchan General Store, Pancharia Market, Ghantaghar, Nokha, Tehsil Nokha, district Bikaner.

6. Learned counsel for the appellant – defendant, Mr. Thanvi though could not produce any case laws in support of his aforesaid contentions, but sought to distinguish the judgment relied upon by the learned c

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