JUDGMENT

Mohan, J.

I. Leave granted.

2. The special leave petition is directed against the judgment of the Gauhati High Court in Second Appeal No. 193 of 198 I. The petitioner filed a title suit No. 97 of 1965 in the court of learned Munsiff, Dibrugarh. The suit is for ejectment of the respondent herein. on the following averments.

3. The plaintiff purchased the suit land from the original owner Mis Planters Stores Agency Ltd. on October 28, 1948. The father of the defendant was originally the tenant of Mis Planters Stores Agency paying an annual rent of Rs. 50 by putting up temporary structures on the suit land for residential purpose. After the purchase by the plaintiff, he continued as tenant accepting the plaintiff as a landlord. He defaulted in payment of the rent for a period from January I, 1962 to February 28,1965. He also sublet a part of the structure standing thereon to pro forma defendants 2-5. Besides, the plaintiff bona fide required the suit land for their use and occupation. A notice of ejectment was issued on January 8, 1965 calling upon the defendant to vacate and deliver the vacant possession. He did not do so. Hence the suit.

4. The original defendant Ramprit Kumar filed a written statement contesting the suit. However, he died, pending the suit. Therefore, the respondent Atmaram Kumar came to be substituted. He filed a written statement that the suit was not maintainable and the first defendant was a tenant under the provisions of Assam Urban Areas Rent Control Act.

5. The plaintiff had no right to sue as the father (original defendant) came to occupy the suit premises in the year 1922 as yearly tenant. In any event, there was no service of notice of ejectment and the structure standing thereon was of a permanent character.

6. One of the main issues for decision was whether there was a valid notice terminating the tenancy and the defendant had been properly served.

7. The learned Munsiff on trial decreed the suit. The defendant preferred title appeal No. 17 of 1970 before the Assistant District Judge, Dibrugarh, the appeal was dismissed. Thereafter, he preferred second appeal No. 193 of I 98 I on the file of the Gauhati High Court. The learned Judge went into detail on the question of notice. He came to the conclusion merely because the original defendant did not deny specifically the service of notice in paragraph 5 of the written statement it cannot be deemed to be an admission Under Order 8 Rule 5 of the Code of Civil Procedure. Therefore, according to him the courts below committed an error of law in not deciding this issue, on a consideration of the entire evidence on record. The evidence according to him, disclosed that the notice had not been served. On this sole ground, the second appeal can

be allowed. Hence, the present special leave petition.

8. This Court on October 4, 1991 ordered thus:

"Issue notice. The question is a short one and that is whether in the second appeal stage the question of the service of the notice should have been permitted to be raised at all. The notice shall specifY that the matter will be finally disposed of on the SLP stage itself on the SLP papers at the next date of hearing."

9. Therefore the only question which we are called upon to decide is as to the validity of the notice.

10. The learned Munsiff cast many issues. Issue No.5 reads as follows:

"Whether the notice terminating the tenancy is a valid one and whether there is proper service." I I. The learned Munsiffrendered the following finding:

"PW 3 Harinarayan Mitra was the mohurer of Shri C.C. Chakrabarty who issued the ejectment notice on behalf of the plaintiff. Ex. 2 is the postal receipt and Ex. I is the acknowledgement. From Ex. ] it appears that the ejectment notice was sent to the address Village Naruah, P.O. Mirzapur, Distt. Chapra (Bihar). It appears from D.W. Ramsundars evidence that Ramprit went home (Bihar) for his treatment. It is probably due to this reason the notice was sent to Ramprits home addr