Patna High Court
Smt. Bhagwati Devi vs Surendrajit Singh And Ors. on 19 August, 1968
Equivalent citations: AIR1969PAT257, AIR 1969 PATNA 257
JUDGMENT B.D. Singh, J.
1. This appeal arises out of a suit which was instituted on 5-10-1981 by Smt. Sushila Devi for eviction of the defendants from the premises bearing holding No. 229 old plots Nos. 668 and 669, ward No. 3, situated at Chaibasa Road, Ranchi.
2. The plaintiff's case, in short is that on 20-12-58 the said premises were transferred to her by her father Suraj Prasad by way of gift. On 12-3-64 Smt. Sushila Devi sold the said premises to Smt. Bhag-wati Devi. Therefore, during the pendency of the appeal before tha lower appellate court the appellant filed a petition on 25-5-1964 in the said court for being added as a respondent, stating that she had purchased the said premises. Her petition was also supported by Smt. Sushila Devi and she also prayed that she should be added as a co-respondent. In the said premises one Shri Bir Singh was inducted as a tenant by the original owner Shri Suraj Prasad Singh. Sardar Beyanat Singh, who was defendant No. 1, is the grandson of Shri Bir Singh and the other four defendants who were impleaded in the suit are the sub-lessees inducted by the aforesaid Shri Bir Singh without the consent of the landlord in breach of tenancy. There was default in payment of rent. Therefore, a notice (Ext. 9) dated 9-2-59 was sent to defendant No. 1 to quit the premises. On 20-2-59 a reply (Ext. 10) to the said notice" was sent by the defendant. The default of payment of rent continued throughout, but the suit was instituted, as stated above, on 5-10-61. The defence, in short, is the denial of the title of the landlord, repudiation of any relationship of landlord and tenant, denial of subletting by defendant No. 1 and assertions by defendants 2, 4 and 6 that they are in possession in their own rights and have right in the said premises by prescription, whereas defendant No. 3 did not appear at all in the suit.
3. The trial court decreed the suit on a finding in favour of the plaintiff in respect of her title as well as default in payment of rent by the defendant No. 1, and on a finding of subletting by defendant No. 1 in breach of condition of the tenancy. And an ex parte decree was passed against defendant No. 3.
4. On appeal filed by all the defendants except defendant No. 3, against the aforesaid judgment and decree of the trial court, the lower appellate court after considering the evidence on the record held that (1) the plaintiff has title, (2) the contesting defendants 2, 4 and 5 have been inducted as sub-lessees by defendant No. 1 and (3) there has been default in payment of rent to the landlord; but it dismissed the suit on a finding that a notice as required under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) to quit the premises had not been properly served. Therefore, it held that the plaintiff ought to be non-suited. Hence this appeal by Smt. Bhagwati Devi, the assignee-appellant.
5. Mr. Balbhadra Prasad Singh,learned counsel appearing on behalf of the appellant, has submitted that the learned appellate court has erred in deciding the following questions of law which he has also raised in this appeal:--
(i) The defendants having denied the relationship of landlord and tenant existing between the parties, they could not take a plea of non-service of a valid notice under Section 106 of the Act
(ii) Alternatively he has submitted that even assuming that they could take such a plea and the notice under Section 106 of the Act is required, the plaintiff has served notice (Ext. 9) dated 9-2-59 as required under the said section.
6. For the consideration of both the points raised above, it will be convenient to refer to the notice to quit which was given by Smt. Sushila Devi to Shri Bir Singh, the original tenant, which is Ext. 9,and the reply thereto which Shri Bir Singh sent to her is Ext. 10. Ext. 9 reads as follows:--
"From: Kuldip Sahay. pleader. Ranchi. To Sri Bir Singh. Punjabi, Mohalla Mal-lahtoli. Main Road. Ranchi. Client: Smt. Sushila Devi wife of Shri Ram Nagina Prasad, A. S. D. O. Mohalla-Harenganj, Hazaribagh.
Subject: Ejectment from M. S. Plot Nos. 668 and 669. holding No. 229 within ward 3 of the Ranchi Municipality, and demand of arrear and current rents. Dear Sir.
I understand from my client above named that by virtue of a registered deed of gift dated 20-12-58, executed by Sri Suraj Prasad Sinha, the abovementloned holding has been gifted away to her by the said Suraj Prasad Sinha, her father and that you are in occupation of the same as a monthly tenant @ Rs. 35/-from before. That my client required the said premises bona fide for her personal need and as such she requests you with this notice to quit and deliver possession of the said premises to her positively by the end of this month, i.e. by 28th Feb. 1959. Besides my client requires you to clear off the arrear and current rent upto date, of the said premises at the said rate by the end of this month, failing which my instructions are to take legal action against you in the court of law for realisation of its rent as well as for your eviction from the aforesaid premises and that without any further reference.
Yours faithfully, Sd. Kuldip Sahay, pleader Ranchi. 9th Feb. 59."
Ext. 10 reads as follows:--
"Akhouri Braj Kumar Singh, B. L. Advocate Dated 20th Feb. 1959. Phone 356 Commissioner's Compound, Ranchi. To Kuldip Sahay. Pleader, Ranchi Client:-- Shri Bir Singh Punjabi, Mohalla Mallah Toli, Ranchi.
Subject:-- Ejectment from M. S. Plot Nos. 668 and 669. holding No. 229 within Ward 3 of Ranchi Municipality and Demand of arrear and current rents.
Dear Sir, Your notice dated 9-2-59 addressed to my client has been made over to me with instructions to reply thereto as follows:--
My client has understood the game which your client's father Sri Suraj Pra-sad is playing behind the screen. Your client as well as her father know well that my client is in occupation of the holding for more than 40 years and he has always been good enough to stand by the side of your client's father at the time of need by paying the rents in advance. The question of arrear rents does not arise at all as "the rent of the month for December, 1958 stands paid up and so far as the rent for January, 1959 is concerned, my client has repeatedly asked your client's father to receive it and grant receipt therefor. Your client as well as her father well know that it was at this request and suggestion that my client spent a good deal in creating structures on the holding in question at his own costs on a definite understanding that my client will have permanency of residence over there. Your client's father as long as the suit in regard to the holding in question was pending before the Hon'ble High Court did not give out anything, but soon after the case has ended, he has changed feathers and taken up to this strategic game Please note that my client emphatically denies that your client is a bona fide donee in respect of the holding in question or that she needs the house bona fide for her own occupation.
Please, therefore, advice your client to think in the terms of what I have stated above and to refrain from taking any ill-advised steps; if your client even after this, persists in running to law court she will do so at her own risk and my client will defend himself against any action taken against him.
Yours faithfully, Sd. Akhouri Braj Kumar Singh."
7. First I take up point No. (i) for consideration. Learned counsel appearing on behalf of the appellant has urged that in the said notice (Ext. 9) it is clearly mentioned that by virtue of the registered deed of gift dated 10-12-58 Smt. Sushila Devi became the landlady of the said premises. Therefore, she sent Ext. 9 through her lawyer Shri Kuldip Sahay, to Shri Bir Singh who was the then tenant of the said premises. In reply to this, in Ext. 10, which was sent on behalf of Shri Bir Singh, the tenant has clearly repudiated the relationship of landlord and tenant in respect of the said premises, and thereby, he has submitted, that the defendant No. 1 could not take a plea of non-service of a valid notice under Section 106 of the Transfer of Property Act and in this connection he has particularly referred to the passage in Ext. 10 which reads as follows:--
"Please note that my client emphatically denies that your client is a bona fide donee in respect of the holding in question ....."
8. Learned counsel has relied upon Section 111 (g) of the T. P. Act which reads as follows:--
"A lease of immoveable property determines by forfeiture; that is to say--(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."
He has contended that due to the denial of relationship of landlord and tenant by the defendants in the instant case, the lease stands terminated and in order to support his argument he has also relied upon a bench decision of this court in Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156 wherein it has been observed as follows at page 159 :--
"In the Full Bench case of this court 196-1 BLJR 583 : AIR 1964 Pat 401 (FB) it has been held that a plea about the absence of notice under Section 106 of the Transfer of Property Act terminating a month to month lease can be raised in appeal. In the batch of cases disposed of by that decision, the tenant did not challenge the title of the lessor and in that view it was open to him to contest the determination of the lease in absence of a notice for that purpose. As the service of such notice was the cause of action for that suit and as the plea in regard thereto was available to the defendant, that appears to have been permitted to be raised at the appellate stage. Besides, the admitted position in those cases was that there was no service of any such notice on the defendants of the three cases. But, if in a case of ejectment where the defendant sets up his own title as against that of the lessor and contests the suit, no defence on the ground of absence of notice for termination or determination of the lease is available to him during the trial, he can much, less be allowed to raise such a plea in a second appeal."
Further he has referred to a decision of the Privy Council in Maharaja of Jey-pore v. Rukmini Pattamahdevi. 46 Ind App 109 : (AIR 1919 PC 1), The short facts of the case before the Privy Council were that a pargana within the appellant's zamindari was held under a hereditary patta and muchilika of 1877, which provided that the holder should pay an annual rent of Rs. 15,000/- and should attend the zamindar at the Dashara dar-bar with 500 paiks for service. The holder in 1904 refused in writing to pay rent at the agreed rate or to attend at the darbar, alleging that the pargana was in independent zamindari subject only to a rent of Rs. 2,200/- a year. In that case, however, it was held that no forfeiture was incurred since there was no denial of title by matter of record before the suit, and the service refused was a subsidiary consideration and, on the evidence, of a merely ceremonial character. In this connection learned counsel also referred to Section 116 of the Indian Evidence Act, 1872, which reads as follows:--
"No tenant of immoveable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."
9. On the other hand. Mr. Lalnarayan Sinba. Advocate General, who appeared on behalf of the respondents, has urged that in this case the defendant has not repudiated the relationship of landlord and tenant by Ext. 10. The whole purport of Ext. 10 which was sent by the defendant to Smt. Sushila Devi in reply to her notice (Ext. 9) was to intimate to her that the transfer of the premises by hr father in her favour was not genuine one and not a bona fide act on the part of her father because it was done only for the purpose of evicting the respondents from the said premises; and in order to support his contention learned counsel has relied upon a decision in Prag Narain v. Kadir Baksh, (1913) ILR 35 All 145 wherein their Lordships while dealing with Section 111 (g) of the T. P. Act held as follows at page 148:--
"The denial in our opinion ought to be an unequivocal and unambiguous denial of the plaintiff's title."
Learned counsel has further contended that in Ext. 10, in the first paragraph, the respondent has clearly mentioned that the question of arrear of rent does not arise at all as the rent for the month of December, 1958. stood paid up and so far as the rent for January, 1959, was concerned, the respondent had repeatedly asked Shri Suraj Prasad to receive it and grant receipt therefor. This clearly indicafes that in Ext. 10 the defendant showed his readiness to pay the rent to Suraj Prasad, who was the original landlord because, according to him the deed of gift in favour of Smt. Sushila Devi was not genuine. In order to support his contention learned counsel further placed reliance upon a Bench decision of Bombay High Court in Rukmini Vithu v. Ravaji Dattatraya Pai. AIR 1924 Bom 454. In this case their Lordships while dealing with the provisions under Section 111 (g) of the T. P. Act expressed their views to the following effect: --
" 'Disclaimer' must be a renunciation by the party of his character of tenant.
A tenant's plea that 'as the plaintiff and a third person both claim rent from him he is ready to pay to either whom the court finds entitled' to is not tantamount to a disclaimer.
A 'disclaimer' as the word imports must be a renunciation by the party of his character of tenant whether by setting up a title in another or by claiming title in himself.
Where a tenant did not set up the title of another neither did he affect to claim title in himself, but required further information before he would pay the rent to anybody".
In such circumstances, their Lordships held :--
"He acknowledged himself to be tenant, and was ready to pay rent to the right person and hence there was no disclaimer".
In the same case at page 456 their Lordships held:--
"Again the plaintiff by his conduct in this suit is estopped from relying upon the forfeiture. Because he made an alternative claim in his plaint that his notice of July 28, 1915, should be treated as a notice terminating the annual tenancy as from July, 1, 1917. This was clearly inconsistent with the claim that the tenancy had been terminated by forfeiture as from the date of notice. It amounted to an assertion that the tenancy was still subsisting and was therefore, waiver of the forfeiture. See on this point the case of Evans v. Davis (1878) 10 Ch D 747".
Learned counsel further made a reference to the decision in the case of Jagannath Mondal v. Bhajahari Nath, AIR 1926 Cal 1206, but in my opinion this case is not relevant on this point. Learned counsel also relied upon a decision of the Privy Council in Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd., AIR 1937 PC 251. Their Lordships were dealing with the provisions contained under Section 116 of the Indian Evidence Act. Their Lordships held at page 255 an follows:--
"....... The section postulates that there is a tenancy still continuing, that it has its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise which is the case before the Board on this appeal the section applies against the lessee., any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent. etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversloner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.... .The tenancy under Section 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment...."
10. Considering the circumstances in which the defendant sent Ext. 10 and the contents thereof and in the light of the decisions referred to above, in my opinion, the contentions of learned counsel for the respondents are well founded. The underlying policy of Section 118 of the Indian Evidence Act is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the Legislature in the said section. This has been made clear in AIR 1937 PC 251 (Supra) where their Lordships have held that what all such persons are precluded from denying is that the lessor had a title at the date of the lease.
Their Lordships have also laid stress upon the date of the lease. In my view, the decision reported in AIR 1965 Pat 156 (Supra), which the learned counsel for the appellant has relied is of no avail on the facts of the instant case, because their Lordships in that case have clearly held that where the defendant sets up his own title, as against that of the lessor and contests the suit, no defence on the ground of absence of notice for termination or determination of the lease is available to him. But in the Instant case in Ext. 10 the defendant does not set up his own title, rather he asserts that Suraf Prasad is the real landlord and Smt. Sushila Devi is not his landlady, because. In his opinion, the deed of gift executed by Suraj Prasad in her favour was not genuine. Similarly, the decision reported in 46 Ind App 109: (AIR 1919 PC 1) (Supra) also does not help the appellant because in that case it has been clearly held that there was no denial of the relationship of landlord and tenant and there was no forfeiture in the circumstances stated in that case. Therefore, for the reasons stated above, in my opinion, the defendant has not denied the relationship of landlord and tenant to entail forfeiture or estoppel and he is entitled to take a plea of non-service of valid notice under Section 106 of the Transfer of Property Act Hence, the contention of learned counsel for the appellant on point No. (i) fails.
11. Now I turn to consider his contention on point No. (ii). In order to appreciate the contentions of the parties in full, it will be necessary to mention, that prior to the decision laid down in 1964 BLJR 683: (AIR 1964 Pat 401) (FB( under Section 11 of the Bihar Buildings (Lease. Rent and Eviction) Control Act. 1947 (Act 3 of 1947) as subsequently amended by Act XVI of 1955, a landlord was not required to serve a notice on the tenant to quit and to give a 15 days' notice as required under Section 106 of the T. P. Act. In Bhairo Lal Agarwala v. Samir Baran Ghosh, 1964 BLJR 59 a Bench of this Court held that Section 11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not and their Lordships further held that no notice under Section 106 of the T. P. Act is required to be given by the landlord before instituting a suit for eviction. Therefore, at the time when the instant case was instituted by Smt. Sushila Devi no notice was required to be given to defendant No. 1. However, a notice had been given in the form contained in Ext. 9 and, in fact, this finds mention in Paragraph 9 of the plaint which reads as follows:--
"That the cause of action for this suit arose on 20-12-58, the date of the deed of Gift (and) on 9-2-69, the date when registered notice was served on Bir Singh Punjabi, calling upon him to pay the arrear rents and to quit and vacate deliver possession of the premises in question to the plaintiff and...."
By the time the appeal arising out of this suit was pending before the lower appellate court, the judgment reported in 1964 BLJR 583: (AIR 1964 Pat 401) (FB) (Supra) was delivered by the Full Bench of this court wherein their Lordships per majority overruled the judgment reported in 1964 BLJR 59 (Supra) and at page 597 (of BLJR): (at p. 409 of AIR) held as follows:--
"The plaintiff would have succeeded in view of the above conclusion and its appeal would have been allowed; but the learned counsel for the defendant-respondent has raised the question that the plaintiff has not alleged or proved in this case that the defendant's tenancy has been determined by a notice under Section 106 of the Transfer of Property Act or by reason of any other ground referred to in Section 111 of that Act. I have already held that determination of a tenancy is necessary before a landlord becomes entitled to the right of possession and can institute an action under Section 11 of the Control Act for actual eviction of the tenant. I have also held that this is a point which can be raised for the first time in second, appeal. That being so, the plaintiff's suit for eviction must be dismissed on this ground alone. As the courts below have dismissed the suit, no interference is called for. The appeal is, accordingly, dismissed."
At the appellate stage a question arose whether the plaintiff had served notice on the defendant as required under Section 106 of the Transfer of Property Act. Therefore, the appellant filed an application under Order 41 Rule 27, C. P. C. supported by an affidavit and prayed that in order to establish the service of the notice some documents mentioned in the petition should be taken as additional evidence. From the order sheet of the lower appellate court dated 30-8-65 it appears that the aforesaid petition for taking additional evidence was taken up for disposal and the learned appellate court after hearing both the parties held that there was no question of the appellants (defendants) being taken by surprise as these papers were filed in the trial court but they were not proved there. Besides, the appellate court was of the view that according to the law as it then stood, it was not necessary for the plaintiff to prove the notice terminating the tenancy and the reply thereto, but since the law has changed after the decree, it had become necessary to prove these papers and bring them on the record.
Therefore, learned appellate court allowed the prayer of the plaintiff for taking the papers as additional evidence and one Shri Kuldip Sahav, Advocate and Babulal Banka were examined and cross-examined as witnesses and lawyer's notice and the reply thereto along with the postal acknowledgment due were marked as Exts. 9, 10 and 11 respectively. Further, the defendant was also allowed to give evidence on rebuttal. On 31-3-65 Harnam Singh was examined and cross-examined as D. W. 1 on rebuttal.
12. It has been contended on behalf of the appellant that this Ext. 9 was posted at Ranchi on 9-2-59 and it had to be deli-vered at Ranchi itself and therefore, it had to travel a very short distance and, it was expected that it must reach defendant No. 1 on the next day.
13. Learned counsel appearing on behalf of the respondent does not deny the receipt of Ext. 9, obviously because he sent a reply to the notice contained in Ext. 9 by a letter dated the 20th February, 1959 (Ext. 10) wherein he refers to Ext. 9, the notice dated 9-2-59. Learned counsel, however, seriously challenges that the said Ext. 9 was received by defendant No. 1 on 10-2-59. According to him, defendant No. 1 received the said Ext. 9 on the 20th February, 1959 and the month ending was on the 28th February and, therefore, clear 15 days' notice expiring on the month of tenancy as required by the. Full Bench decision aforesaid, was not complied by the plaintiff. Therefore, the notice was invalid. The postal acknowledgment receipt of Ext. 9 is marked Ext. 11, as stated above, and both parties have referred it to us. There appears to be interpolation in the date when it was received by Shri Bir Singh.
It appears that originally the date of the receipt was '10-2-59' but after it was filed in the lower appellate court the figure "10" was mutilated which does not even appear to be "20". In the postal seal on the acknowledgment receipt, the date 12-2-59 is distinct. Besides, it is admitted case of the parties that Ext. 9 was posted at Ranchl on 9-2-59 and it had to be delivered to Shri Bir Singh residing at Mallahtoli. Main Road, Ranchi. which fact also appears from Ext. 11. Therefore, it is not expected that a registered letter will take about 12 days to travel such a short distance. Learned counsel appearing on behalf of the appellant has relied on a decision Harihar Banerji v. Ramsashi Roy, 45 Ind App 222 at p. 231: (AIR 1918 PC 102 at p. 112) wherein their Lordships have held:-
". . . . On a motion for a new trial on the ground of misdirection, the court, consisting of Cockburn C. J., Blackburn, Mel-lor and Hannen JJ. held that if a letter properly direcied, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom ft was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted, but strengthened, by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself,"
Therefore, in my opinion, it can safely be inferred that in the instant case Shri Bir Singh received Ext. 9 on 10-2-59, or on 12-2-59 at the latest as evidenced by the postal seal. Besides, in paragraph 9 of the plaint, as stated above, it was specifically mentioned that the cause of action arose on 9-2-59, the date when the registered notice was served. Here it seems to me that the said notice dated 9-2-59 has loosely been stated to have been served on 9-2-59. But this fact has not been specifically denied in the written statement tiled by defendant No. 1. The written statement in paragraph 1 simply states:--
"That the plaintiff has got no cause of action for the suit and the cause of action as alleged in paragraph 9 of the plaint is false and manufactured for the purposes of the suit."
Learned counsel appearing on behalf of the respondents has urged that this should be considered as denial of paragraph 9 of the plaint. In order to support his contention he has relied on a decision in the Union of India v. Pandurang Kashinath, Alii 1962 SC 630. wherein their Lordships have held that a plaintiff cannot complain if general allegations made by him in the plaint are answered by equally general allegations in the written statement. But, in my opinion, this judgment does not help the respondents. As stated above, in paragraph 9 of the plaint it is clearly stated that the cause of action arose on 9-2-59 when the notice was served on defendant No. 1. Learned counsel has further relied upon a decision in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 wherein their Lordships held at page 598:--
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present in the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto."
Bat in my view, this also does not help the respondents, because in this very passage their Lordships have held that the rule has no application to a case where the parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. In the instant case as stated above, the plaint clearly stated regarding the date of the notice which was within the knowledge of the defendant. Learned counsel has further relied on a single Judge decision in N. C. Rajagopalachariar v. Bhashyachariar, AIR 1924 Mad 838, but in my opinion the facts of that case do not apply to the instant case because in the facts of that case there were several circumstances set out in the plaint as constituting the details of certain transactions and instead of denying these several circumstances specifically the defendants denied them as a whole. But hi the instant case, as stated above, there is specific mention with regard to the date of the notice and there are not various circumstances.
Hence it ought to have been denied specifically in the written statement by defendant No. 1. Learned counsel for the respondents, in order to justify the general denial made in paragraph 1 of the written statement, has submitted that when the written statement was filed no notice as contained under Ext. 9 was required at all, as stated above, but in my opinion, the defendant No. 1 ought to have specifically denied that the cause of action arose on 9-2-59 as stated by the plaintiff, rather it arose on 20-2-59 when the defendant No. I received the notice, if in fact, as alleged by defendant he had received the notice on 20-2-59. Therefore, I do not agree with the contention of learned counsel for the respondents that the notice was served on 20-2-59.
14. It was nest contended by the learned Advocate General, appearing for the respondents, that the contents of Ext. 9, are not according to the provisions contained under Section 106 of the Transfer of Property Act or as required according to the decision laid down in 1964 BLJR 583: (AIR 1964 Pat 401) (Supra), because, according to him, as the admitted case of the parties is, prior to the aforesaid Full Bench decision no notice under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was required. Obviously, therefore, the plaintiff did not mean it to be a notice under Section 106 of the T. P. Act. Be that as it may, in the instant case, we have to examine and interpret the language contained in Ext. 9. In Ext. 9 it is clearly stated that the said premises were required bona fide by Smt. Sushila Devi for her personal need and as such she gave this notice to quit and deliver possession of the said premises to her positively by the end of that month i.e. by the 28th February, 1959. In 45 Ind App 222: (AIR 1918 PC 102) (Supra) their Lordships while dealing with the notice to quit under Section 106 of the T. P. Act held at p. 225: (of Ind App): (at p. 107 of AIR) as follows:--
"that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants, presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed at res magis valeat quam pereat. To take a few of the authorities out of many to illustrate these principles."
Therefore, this contention of the learned Advocate General is also not acceptable.
15. Lastly, the learned Advocate General has contended that the finding of the service of the notice in the instant case is a question of fact. Therefore, he submitted that it should not be interfered under the provisions contained under Section 100 of the C. P. Code. In support of his contention reliance was placed on a decision in Deity Pallabhiramaswamy v. S. Hanu-mayya, AIR 1959 SC 57, at p. 59 wherein their Lordships have quoted with approval the decision in Durga Chowdharani v. Jawahir Singh, (1891) 17 Ind App 122 (PC) which reads thus:--
"There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be."
Their Lordships have further quoted with approval the observation of the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, AIR 1923 PC 187 wherein the principle was further elucidated by pointing out:
"If the question to be decided is one of fact it docs not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed."
But in my opinion, we have to take into consideralion the fact that Exts. 9, 10 and 11 in the instant case were admitted by the appellate court. Therefore, the trial court had no occasion to give a finding over these documents. Besides, as indicated above, in this case while interpreting Exts. 10 and 11 the lower appellate court has committed an error of record, particularly while examining Ext. 11 it committed an error in not noticing the postal seal which clearly indicated that the date of delivery was 12-2-59 and in that view of the matter it committed an error in interpreting Exts. 10 and 11 and as such, on the facts and in the circumstances of this case, in my opinion, the principle laid down by their Lordships of the Supreme Court in AIR 1959 SC 57, at p. 59 (supra) does not apply to this instant case. Accordingly, the contention of the learned Advocate General is not acceptable.
16. In the result, the judgment and decree of the lower appellate court are set aside and those of the trial court are restored. The appeal is allowed with costs.
Misra, A.C.J. I agree.