JUDGMENT

K.B. Asthana, J. - The only point for determination in this second appeal is whether the defendant failed to pay the amount of arrears demanded in the notice served upon him by the plaintiff. The plaintiff respondent is the owner of the premises in suit in mohalla Lonamandi of Agra City. The defendant appellant is his tenant in that premises. The plaintiff also resides in another premises in the same mohalla. In the month of October, 1958 the plain-tiffs served upon the defendant a notice of demand for arrears of rent. The defendant by a money order sent the requisite amount of to the defendant within the time of the expiry of the notice period. This money order was ultimately refused by the plaintiff on 2-12-1958 presumably for the reason that on 2-12-1958 the money order was tendered for payment to the plaintiff after the expiry of the period of notice. The plaintiff had also served upon the defendant a notice under Section 106 of the Transfer of Property Act terminating the tenancy and asking him to quit. The defendant, it is alleged, neither paid the arrears of rent nor vacated the premises, hence the suit.

2. Apart from the allegation that the defendant had defaulted in the payment of the rent, the plaintiff also pleaded that the defendant committed nuisance, had damaged the premises and had also raised unauthorised construction as grounds for ejectment. The two courts below have recorded findings against the plaintiff on the pleas of nuisance, damaging the premises and raising of unauthorised constructions but finding that the defendant failed to pay the arrears of rent decreed the suit for ejectment. When this appeal was argued at the earlier stage two issues were sent down to the court below for recording of findings. Those issues were as follows:

(1) In what circumstances the endorsement on the money order coupon dated 2-12-1958 came about to be written? (2) Whether the said money order was tendered to the plaintiff on any date prior to 2-12-1958? If so, on which date and with what results? The court below has now recorded its findings which are before me. On issue No. 1 the court below reports that it was not possible to arrive at any finding inasmuch as the records in the post office in respect of the relevant money order have been weeded out. On issue No. 2 the court below has recorded a finding that the money order was actually tendered for payment to the plaintiff on 15-11-1958 but he did not accept the amount having told the postal peon to bring it some other time to enable him to consult his lawyer in the meantime.

3. The finding of fact on issue No. 2 mentioned above has been objected to by the learned counsel for the plaintiff respondent.- I have heard the learned counsel at some length. I do not think the objection is worth accepting. The defendant himself appeared in the witness-box and stated that he had gone with the postal peon on 15-11-1958 when the money order was taken for delivery to the plaintiff and the plaintiff saying that he would consult his lawyer asked the postal peon to come with the money order on some other day. The learned counsel submitted that the best evidence on this material question of fact, which would have been of the postal peon, was not produced before the court and the defendant's uncorroborated testimony should not be accepted. The defendant in his statement has given satisfactory explanation as to why the postal peon could not be produced. He stated that he never knew the name of the postal peon and since the records were weeded out in the post office nobody was in a position to inform him of the name of the postal peon. This explanation has been believed by the learned judge of the court below and I do not see any reason why I should differ from it. After all the defendant was the tenant and he must have made all efforts to save his tenancy and it is not unnatural in those circumstances to find the defendant being anxious to see that the Money order sent by him was te