' MUHAMMAD AFZAL LONE, J.-In this second appeal, the appellant has challenged the propriety of the order dated 30-6-1975, passed by the learned Additional District Judge, Lahore, whereby his first appeal filed by him against his eviction from the house in dispute ordered by the learned Rent Controller on 17-9-1973, was dismissed.
2. The respondent, who is a transferee of House No, D-1686, situate in inside Lohari Gate, Lahore, on 7-12-1965, filed an ejectment petition against the appellant for his eviction from a part of the said house shown in red colour in the application attached with the petition. It was averred that after service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, the appellant paid rent for some time but stopped its payment thereafter. It was claimed that a second notice dated 12-3-1965, was also served on the appellant but he defaulted in payment of the rent.
3. The appellant contested the ejectment petition, denied the service of notice and so also the relationship of landlord and tenant. He took the defence that his son named Abdul Shakoor, was the tenant under the respondent from whom he also realised the rent. Maintainability of the ejectment petition was also assailed on the ground that the said property did not form part of the compensation pool as it had already been acquired by the Lahore Improvement Trust, under the provisions of the Punjab Development (Damaged Areas) Act, 1952,
4. So far as the legality of the transfer order is concerned, the learned Rent Controller referred to the judgment dated 12-2-1970, passed by this Court in Writ Petition No, 1343/65, wherein the contention of the other co-tenants that the property was not validly transferred to the respondent as it was already acquired by the Lahore Improvement Trust, was not accepted. In view of this judgment, the appellant was not permitted to assail the transfer order issued to the respondent by the Settlement Department. It appears that the appellant's son (Abdul Shakoor) filed an application to be impleaded as a party which was dismissed by the learned Rent Controller on 16-11-1967 and was held to have been filed mala fide. The learned Rent Controller, thus, came to the conclusion that the appellant's submission that his son was the tenant, was without any substance. The respondent examined Mirza Naseer Ahmad, Advocate, as A. W. 2, who proved the service of the notice, copy whereof was produced as Exh. A.
4. To establish the factum of service, reliance was also placed on the postal receipt (Exh. A. 2) and A. D. Receipt (Exh. A. 3), which bore the thumb impression of the appellant. Relying on this evidence, the learned Rent Controller held that service of notice was fully established and relationship of landlord and tenant subsisted between the parties. As no rent was claimed to have been paid, vide his order dated 17-9-1973, he ordered eviction of the appellant from the demised premises.
5. The learned Additional District Judge, to whom, the first appeal was assigned for disposal, after careful consideration of the evidence, in the light of the findings of the learned Rent Controller, upheld the ejectment.
6. In support of this second appeal, the only submission made by the learned counsel for the appellant, is that the service of notice was not proved. He argued that the notice was said to have been served on the appellant vide A. D. Receipt (Exh. A. 3), which, according to the learned counsel did not bear the thumb impression of the respondent. In the submission of the learned counsel, service of notice having been denied, the two courts below, in the absence of any other evidence, fell in error in holding that notice was served on the appellant. It was urged that the respondent should have examined the postman to prove the delivery of the notice (Exh. A. 4), to the appellant.
In this respect, reliance was placed on Gulzar Begum v. Saira Bibi (1) for the proposition that denial of service of notice by the tenant, cast an obligation on the landlord to prove the service through examination of the postman. Failure to cross-examine the appellant's son (R. W. 2) who appeared in the witness box as his attorney, on the question of service of notice, was also pleaded as a ground to argue that his statement that notice was not served on the appellant will be deemed to have been accepted by the appellant. He cited Sayed Iqbal Hussain v. Mst. Sarwari Begum (2) and Mst. Zar Jan v. Mst. Najm-un-Nisa (3) in support of this submission.
7. The learned counsel for the respondent, on the other hand, argued that the service of notice was fully proved by production of the copy of the notice Exh. A. 4, which was proved by the testimony of Mirza Naseer Ahmad, Advocate, who was examined as A. W.
2. He also referred to the postal receipt (Exh. A. 2), and the A. D. Receipt (Exh. A. 3), and contended that the des-patch of the notice by registered post A. D. Correctly addressed to the appellant, having been proved, there was a strong presumption that it reached its destination. Support for this view was sought from Bashir Ahmad v. Mumtaz Khan (4) and Masood Sadiq v. Muhammad All (5).
8. I have thoroughly examined the record of this case and fully considered the submissions made by the learned counsel for the parties. The copy of the notice (Exh. A. 4) and the postal receipt (Exh.
A. 2), as well as A. D. Receipt (Exh. A. 3), were filed by the respondent in the Court on 8-12-1965. In his written statement dated 2-7-1969, the appellant did not (1) 1972 SCMR 251 (2) PLD 1967 Lah. 1138
(3) PLD 1969 Pesh. 118 (4) PLD 1965 Lah. 126 (5) PLD 1968 Lah. 1201 urge that the thumb- impression borne on the A. D. Receipt (Exh. A. 3) was forged. His son Abdul Shakoor while appearing as R. W. 2, simply stated that no notice was served on his father in his presence. This statement cannot in any manner, be construed as denial of the appellant's thumb impression on Exh. A.
3. This document had already been tendered in evidence before the appearance of R. W. 2, in the witness-box. In case, this document really bore a forged thumb impression, this witness should have specifically adverted to this fact in his statement, but he did not make any mention of it.
Furthermore, notice (Exh. A.-4), was sent to the. Appellant by Mirza Naseer Ahmad, Advocate. He was examined by the respondent as A. W.
2. It is in his deposition that notice was des-patched by him personally and the receipts (Exhs. A. 2 and A-3), were in his possession, which were filed in Court along with the ejectment petition. He was not cross-examined that the A. D. Receipt did not bear the thumb impression of the appellant.
A indeed, the appellant s failure to cross-examine Mirza Naseer Ahmad, Advocate, on this issue, in the light of the precedent cited by the learned counsel for the appellant, would justify an in-force that his statement was accepted by the appellant. As already observed above, R. W. 2 in his statement, did not refer to Exh. A.-3, no adverse presumption can, therefore, be drawn against the respondents because of his failure to examine this witness regarding the thumb-impression marked on this document. The contention of the learned counsel for the respondent, in this respect, is clearly untenable.
9. In Gulzar Begum's case, notice was claimed to have been served on the appellant, but she appeared in the witness-box and denied her signatures on the A. D. Receipt. It was in these circumstances, that their Lordships of the Supreme Court, observed that the Rent Controller should B have got the signatures of the appellant compared with the signatures on the admitted documents and further given an opportunity to the respondent to produce the postman, to prove that A. D. Receipt was signed by the appellant. The observations made in Gulzar Begum's case pertain to the facts proved therein. In the instant case, the appellant, himself did not appear in the witness-box to deny his thumb impression on Exh. A.-3. Mirza Naseer Ahmad's statement is also an important piece of evidence to establish service of notice on the appellant. I have examined Exh.
A.-4. It bears the correct address of the appellant. It has not been shown that the envelope containing the notice was not correctly addressed to the appellant. Des-patch of notice was proved by Exh. A. 2 and the statement of Mirza Naseer Ahmad, Advocate.
10. It was laid down in Masood Sadiq's case that an envelope pre-paid containing the notice, bearing correct address of the addressee, if proved to have been posted by a registered post, will be presumed to have reached the addressee and the presumption is not rebutted by production of a receipt, signed by a person other than the addressee. The observations made in Bashir Ahmad v. Mumtaz Khan, are that the A. D. Receipt received back bearing the endorsement by the postman "as refused" gives rise to a strong presumption that notice was received by the addressee, if proved to have been posted and correctly addressed.
11. The respondent has placed on the file P. T. D. (Exh. A. 1), to prove the factum of transfer of the property in dispute in his favour. The appellant became a statutory tenant under the respondent.
Service of notice was also 'proved. It was not claimed by the appellant to have paid any rent to the respondent. The default was, thus, fully established and the learned Rent Controller rightly ordered eviction of the appellant. I entirely agree with the learned Additional District Judge.
12. There is no merit in this appeal which is dismissed with costs.
13. The appellant is directed to hand over the vacant possession of the house in dispute within one month of the announcement of this order.