Dhukhiram Sharma vs Mariam Bibi

Jyotirmay Bhattacharya, J.—Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of appeal in terms of the report of the Stamp Reporter.

Mr. Roy, learned advocate appearing for the appellant undertakes to deposit the deficit court fee in course of this day.

This second appeal is directed against the judgment and decree dated 25th August, 2015 passed by the learned Additional District Judge, Bolpur, Birbhum in Title Appeal No.32 of 2015 reversing the judgement and decree dated 28th April, 2015 passed by the learned Civil Judge (Junior Division), 1st Court, Bolpur, Birbhum in Title Suit No. 30 of 2007 at the instance of the defendant/appellant.

Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

Here is the case where we find the courts below differed from each other with regard to service of notice under Section 106 of the Transfer of Property Act upon the defendant/appellant. The learned Trial Judge held that service of notice upon the defendant has not been proved. Though copy of the eviction notice contains the original signature of the lawyer sending such notice to the addressee and the signature of the lawyer on the copy of such notice was proved, but according to the learned Trial Judge, the content of the said notice has not been proved.

Learned first Appellate Court reversed such findings of the learned Trial Judge by holding that such notice under Section 106 of the Transfer of Property Act was served upon the defendant/appellant by registered post. The postal slip remitting such postal article and the acknowledgement due card on which receipt of such notice was acknowledged by the defendant have been proved.

Learned first Appellate Court held that since service of such notice upon the defendant is proved, the defendant is the custodian of the original document. Since the said defendant who is the custodian of the original document has not produced the original document in court, the plaintiff is entitled to prove the copy of such notice by way of secondary evidence as per Section 65 of the Evidence Act.

Learned first Appellate Court, thus, held that service of eviction notice has been duly proved by the plaintiff. Hence, the learned first Appellate Court reversed the judgement and decree of the learned Trial Court and passed decree for eviction against the defendant/appellant as he failed to deliver vacant and khas possession to the plaintiff/respondent on the expiry of the notice period.

The legality of the said judgement and decree of the learned first Appellate Court is under challenge in this appeal at the instance of the defendant/appellant.

After hearing Mr. Roy, learned advocate appearing for the defendant/appellant and after considering the materials on record and the judgements of the learned courts below, we have no hesitation to hold that the learned first Appellate Court was justified in holding that the notice under Section 106 of the Transfer of Property Act has been duly served upon the defendant/appellant in the instant case. Such notice was sent for effecting service upon the defendant by registered post with A/D. Both the postal slip and the A/D. card were proved into evidence and were also marked as exhibits.

Since the service of eviction notice was proved by the plaintiff/respondent, we can safely hold that the defendant/appellant is the custodian of the original document. Since the defendant did not produce the original notice, plaintiff had the option to prove the contents of the copy of the said notice by producing copy thereof by way of secondary evidence. The plaintiff, in fact, has done so. Plaintiff has produced a copy of the eviction notice which contains the original signature of the lawyer sending such notice. The lawyer''s signature has also been proved and his signature was exhibited. Hence, we have no reason to disturb the findings of the learned first Appellate Court.

In the facts and circumstances as stated above, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed.

Re : CAN 3978 of 2016 (Stay)

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 3978 of 2016 is, thus, deemed to be disposed of.