The judgment emphasizes the importance of discharging the burden of proof in cases involving service of notice, and highlights the principle that positive evidence of service can outweigh mere denial.

Manoj Kumar Gupta,J.

1. Heard learned counsel for the petitioners and Sri Sanjay Agrawal on behalf of the respondents.

2. S.C.C. suit no. 119 of 2002 was instituted by the plaintiff-respondents against the petitioners for recovery of arrears of rent and for ejectment. It was decreed by the trial court by judgement dated 4.1.2010. The trial court recorded a specific finding that notice dated 11/6/2002 under section 106 of Transfer of Property Act, 1882 terminating the tenancy was served on 12/6/2002 by registered post. The acknowledgement bears the signatures of Parul, the daughter of the petitioner no.1. It has further been held that although the petitioners have denied service of the notice, but they have not produced any handwriting expert to prove that the acknowledgement does not bear the signatures of Parul. The court has held that the petitioners have failed to discharge their burden and accordingly, decided issue no.4 relating to service of notice in favour of the plaintiff-respondents and against the petitioners.

3. On issue no.1, the trial court has held that the date of construction of the building is after 26 April 1985 and consequently, the provisions of U.P. Act no. XIII of 1972 would not apply. The findings have been affirmed by the revisional court with the dismissal of the revision.

4. The only submission made by learned counsel for the petitioners is that the plaintiff-respondents failed to prove the service of notice under section 106 of Transfer of Property Act, 1882 on the petitioners. In this regard, he has placed reliance on a decision of the Supreme Court in the case of V. N. Bharat vs. D.D.A. & another AIR 2009 SC 1233 . Therein, the dispute was whether the demand notice for payment of instalments in respect of a flat, issued by Delhi Development Authority, was served on the allottee or not. The Delhi Development Authority, claimed that notice was sent to the allottee at the correct address by registered post and thus there was presumption of service under section 114(f) of the Evidence Act. The allottee, on the other hand, categorically denied receipt of the notice. The Supreme Court held that presumption of service of notice under section 114(f) of the Evidence Act, 1872 is a rebuttable presumption. The allottee having categorically denied receipt of notice, had discharged his onus, and the burden shifted on the person claiming service of notice. The Supreme Court further noticed that in that case, there was no material on record to prove service of notice, except the plea of presumption under section 114(f) of the Evidence Act. It was held thus : -

"19. The assertion of service of notice on account of such presumption has been denied by the appellant as a result whereof onus of proving service shifted back to the respondent. The respondent DDA has not led any other evidence in support of the presumption of service. In such circumstances, it has to be held that such service had not been effected. ...................

20. As far as the MRTP Commission is concerned, there is no definite finding on the question of service of the demand notice. On the other hand, the Commission presumed that the appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers. According to the Commission, it was for the appellant to have made inquiries relating to completion of the construction and it should have waited for a demand notice to have been sent to him. In our view, the Commission also erred in placing the onus of proof of service of the demand notice on the appellant, since except for denial there is nothing else that the appellant could have produced to prove a negative fact. As we have indicated hereinbefore, the presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DDA the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examin