1990 INSC 0033
                                                     Anil Kumar

                                                           Vs

                                               Nanak Chandra Verma

                                          Civil Appeal No. 1968 of 1988

                                 (K. Jagannatha Shetty, Dr. T.K. Thommen JJ)

                                                      25.01.1990

                                                        ORDER

1. The suit for eviction of the appellant in respect of certain premises has been decreed by the trial
court and that decree has been confirmed by the High Court. The principal question that arises for
consideration relates to the validity of the notice issued under Section 106 of the Transfer of
Property Act. The notice was not personally served but there is an endorsement of the postman
stating that it has been refused. The case of the tenant was that he was not all present during the
period when the postman visited the premises for service and the endorsement of the postman was
therefore not correct. He has discharged the initial burden by examining himself and it would be for
the other side to prove the valid service. The submission was sought to be justified by reference to
the decisions in Shiv Dutt Singh v. Ram Das (AIR 1980 All 280) and Jagat Ram Khullar v. Battu
Mal (AIR 1976 Del 111).

2. The question considered in both the decisions was as to the statement on oath by the tenant
denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant
was sufficient to rebut the presumption of service. In our opinion there could be no hard and fast
rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut
the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be
different. It is always a question of fact in each case whether there was sufficient evidence from the
tenant to discharge the initial burden.

3. In the instant case the trial court has considered the evidence of the tenant and was not impressed
with it. It is indeed impossible to believe that the tenant having the business premises at Ghaziabad
would have left it in the hands of the servant and remained at Delhi for a long period from
December 19, 1984 to January 1, 1985 where people shuttle between the two places quite often.

4. The finding recorded by the trial court as to the insufficiency of the evidence from the tenant has
been accepted by the High Court. Thus there is a concurrent finding of fact that the notice has been
refused.

5. In this view, the appeal fails and is dismissed. In the facts and circumstances of the case we make
no order as to costs.

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