IMPORTANT POINTS
Termination of tenancy--Notice--Service of--Presumption--When letter is received back with report Not Present, no presumption of service can be drawn unless something more is proved by leading cogent evidence that it was in fact refusal.
Notice--Service of--Presumption--In case it is proved, that there is no role of the addressee in sending back the letter and the letter, is received back by the sender with the remarks Not Present no presumption can be drawn of addressees service, as the return itself shows that letter was actually not served

Vinod K.Sharma, J.

1 This regular second appeal is directed against the judgment and decree dated 6.9.1986 passed by the learned District Judge, Kurukshetra vide which suit filed by the plaintiff/appellant for possession was ordered to be dismissed.

2 Briefly stated the facts of the case are that Teja Singh son of Harnam Singh was owner of the shop bearing No.366-A Ward No.9 Darra Kalan, Thanesar. Defendant was the tenant under him at the rate of Rs.350/- (Rupees three hundred and fifty only) per month as on 19.5.1981 i.e. the date of execution of the sale deed in favour of the plaintiff/appellant. It was claimed in the suit, that the defendant had not paid the arrears of rent w.e.f. 1.1.1980. Shop was said to be newly constructed shop, and the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the Act) were not applicable. The plaintiff terminated the tenancy of the respondent by serving a notice under section 106 of the Transfer of Property Act. On the failure of the defendant-respondent to vacate the premises a notice was issued terminating his tenancy.

3 Suit was contested by raising a plea that shop in dispute was not newly constructed shop, and that the Act was applicable. The plaintiff/appellant on earlier occasion had filed an eviction petition on the ground of non-payment of rent which was got withdrawn after depositing the rent. It was also claimed that rate of rent was Rs.100/- (Rupees one hundred only) per month and not Rs.350/- (Rupees three hundred and fifty only). Arrears were said to have been paid to the previous owner up to 19.5.1981. Defendant showed his willingness to pay the rent. A plea was also taken that no valid notice terminating the tenancy was served upon the defendant, therefore, the suit was said to be not maintainable.

4 In the replication averments made in the plaint were reiterated and those of the written statement were denied.

5 An application dated 3.10.1985 was placed on record showing that the rent petition was withdrawn.

6 On the pleadings of the parties learned trial court framed the following issues:-

"1. Whether the plaintiff is entitled to the possession of the shop, as alleged? OPP

2. Whether the plaintiff is entitled to recover Rs.9683.60P as arrears of rent? OPP

3. Whether the civil court has no jurisdiction? OPD

4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

5. Whether the present suit is barred by the principle of res judicata? OPD

6. Whether the plaintiff served the defendant with valid notice under section 106 T.P.Act, if no, its effect? OPD

7. Relief."

7 On issue No.l on appreciation of evidence, learned trial court held that the appellant was entitled to possession of the shop as defendants tenancy was validly terminated by issuing notice under section 106 of the Transfer of Property Act. On issue No.2 learned trial court held that the rate of rent was only Rs.100/- (Rupees one hundred only) per month, and decreed the claim of rent for Rs.840/- (Rupees eight hundred and forty only) only.

8 On issue No.3, learned trial court was pleased- to hold, that the parties by their conduct could not give jurisdiction to the court, and that the filing of rent petition by the plaintiff/appellant did not oust the jurisdiction of the civil court. It was ha d that building was new and the provisions of the Act, were not applicable.

9 On issue No.4, learned trial court was pleased to hold that there Could be no estoppel against the statute, and issue No.4 was accordingly decided against the defendant. Similarly plea of res judicata was not accepted. On issue No.5 learned trial court was pleased to hold that valid notice was issued.

10 Issue No.6 was taken up with issue No.l, the learned trial court held that Section 106 of the Transfer of Property Act, provides a number of modes for delivery of notice and one of the modes is to serve the notice by post. Learned trial court was of the view th