' This second appeal is directed against the order passed by the Additional District Judge, Hyderabad dated 17th of December, 1978 whereby the appeal of the respondent was allowed and the order of ejectment passed by the Rent Controller, Hyderabad on 30th January, 1978 was set aside.
2. The application for ejectment was filed on 4th September, 1975 wherein it was stated that the premises in question which were part of CSF/1153/4/5, Qazi Abdul Qayyum Road, Hyderabad were transferred to the appellant by the Settlement Department in 1969 and he had sent three separate registered A.D. Notices to the respondents on 13th October, 1972 but they have neither replied to the said notice nor they have paid the rent. The respondents 1 and 2 took the defence that the disputed tenement was agreed to be sold to them by the appellant and hence the question of payment of rent did not arise and they had filed a suit bearing No, 526 of 1972 for specific performance in respect of the half portion of the house in their possession. They relied upon an agreement of sale. They denied the relationship of landlord and tenant and also relied upon section 30 of the D.P. Act. They had also said that application was not maintainable as the three respondents were residing in the house separately alongwith their families. The respondent No,3 took up the position that the appellant had agreed to sell the house in favour of the other two respondents. He also took up the position that the appellant was in possession of half portion in the house while the other half portion was occupied by all the three respondents who were residing separately alongwith their families in small portions. The respondent No, 3 denied to have received notice under section 30 of the D.P. Act of 1958.
3. Three preliminary issues were framed, whether the application was maintainable? Whether the opponents have been served with notices under section 30 of the D.P. Act? And whether there exists relationship of landlord and tenant between the parties?
4. The Rent Controller examined Yaseen who proved the transfer in his favour and stated that he was in occupation of the half portion while the other half portion was in possession of the respondents, who were his cousins, and were real brothers between themselves. He proved to have served registered A/D notices and copies of notices were produced as well as postal receipts Exhs.
35 to 37. He stated that neither the respondents paid any rent nor notices were replied. He denied that the opponents were residing separately and asserted that they were running joint business. He denied that he had agreed to sell the property to respondents 1 and 2. He further stated that the suit for specific performance of contract filed by respondents 1 and 2 had been dismissed but appeal against the same was pending. He admitted that he demanded Rs,10 from each of the respondents. From the side of the opponents all the respondents examined themselves.
5. Imamuddin stated that he has not received notice for demanding rent and also stated that he was residing separately from the other opponents. In cross-examination he admitted that the half portion of the house was in possession of the appellant while the second half namely disputed house was in occupation of all the respondents. He admitted that all the respondents have common outhouse and the courtyard is also joint for all the opponents. He denied any knowledge about the suit of his brothers filed against the appellant for specific performance. He asserted that he had also purchased the portion from Yaseen half of the house which was in their possession. He stated that he had filed civil suit against the appellant and he had produced the agreement of sale. But when pressed he admitted that neither he knew the number of the suit nor the name of the Court in which his suit was pending but he insisted that the suit is pending since 4 or 5 years. He stated that he has not been examined so far in that suit. He was again asked about the service of notice upon him but he denied. To me this witness does not appear to be a truthful witness in view of the evidence which he has given. He has denied the knowledge about the suit of his brothers and has asserted that he had himself purchased the property from Yaseen and asserted that they had an agreement which he had produced in Court but he did not even know the number of the suit nor the name of the Court where it was pending. This witness is not worthy of any credence.
Therefore, he cannot be relied upon for his statement that he had not received the notice under section 30 of the D.P. Act. It is difficult to believe him in respect of that aspect in view of the fact that the other two respondents have clearly admitted that they have received notices sent to them. I have seen Exh. 35 which is receipt of Postal Department of the notice. It is dated 23rdl October, 1972 and is addressed to Imamuddin Allah Noor at F/1153/4-5, Hyderabad. The other two notices upon respondents Exhs. 36 and 37 are also addressed at the same address.
6. Ahmed Hussain, respondent had first stated that he had purchased the disputed portion from the appellant and further stated that he was residing separately from his brothers. In cross- examination he admitted that all the respondents are residing in the half portion of the disputed house and in one room all the respondents were residing and further that the outhouse and courtyard of that portion were common and again asserted that all the opponents have jointly purchased the portion of the disputed house. This witness had stated in examination-in-chief that he had not executed any agreement of sale or the purchase of the disputed house with the appellant. He admitted the receipt of notice under section 30.
7. Mohammad Idris, respondent asserted in examination-in-chief that all the brothers were residing separately but in cross-examination he admitted that it is a fact that half portion of the disputed house was in their possession and he stated that by saying that they were residing separately he meant to say that each of them were earning separately and maintain separately.
He admitted that outhouse in their portion were common.
8. I have noted the evidence in view of the fact that there were conflicting decisions of lower courts.
9. Mr. Zahiruddin relied upon P L 0 1965 Lah. 126 where it was held that if notice is proved to have been correctly addressed and posted then it will be presumed to have been received by the addressee and examining the postal peon was not necessary. In P L 0 1968 Lah. 1201 notice under section 30 was duly addressed and it was delivered by the postal peon to a boy emerging out of the house of the addressee, the Court held that it should be presumed to have been delivered to the addressee. In PLJ 1982 Kar. 400 it was held that service of registered notice in normal course was to be presumed.
10. Mr. Rashiduddin learned counsel for the respondents had relied upon 1972 SCMR 251 where the Supreme Court had held that if the receipt of a letter was denied by the addressee then the presumption under section 114 had been rebutted and the case should have been decided after the evidence of the postal authorities have been recorded. However, the cited case is not applicable to the facts of this case because I have desbelieved the statement of Imamuddin and hence the contrary has not 8 been proved and, therefore, presumption under section 114 of the Evidence Act can be resorted to and the case is covered by section 27 of the General Clauses Act.
11. Section 27 of the General Clauses Act, 1897 has explained the meaning of service by post as under:-- "Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
This provision of law makes it incumbent upon the Court to treat the service to be effected by mere proper address, prepaying and posting by registered post containing the notice unless the contrary is proved. In the case before me the appellant has sent a letter by registered A/D Post and has produced the copy of the letter sent by him as well as the postal receipt under which it was sent, therefore, under section 27 of the General Clauses Act I have to deem that the service has been effected properly upon the respondent No,3. However, the respondent No,3 could have proved the contrary but the statement that he has made in Court is a worthless statement and he is not the person who should be believed in respect of what he is saying and I, therefore, disbelieved him. And, therefore, the obvious result is that the contrary has not been proved. The postal receipt shows correct address and the other two respondents have received their notices on the same address and hence there is no reason as to why third respondent could not have received a letter which is addressed at the same address particularly when one respondent says that they were living in the same premises. Since I have disbelieved the statement of the respondent No,3 therefore, the obvious result is that the contrary has not been proved by the respondent No,3 as required under section 27 of the General Clauses Act. Even under section 114(f) of the Evidence Act a Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case and illustration (e) has stated that the Court may presume that the common course of business has been followed in particular case. It would be, therefore, reasonable to presume that if two letters are delivered on the same address to two respondents' then the third letter would also be ordinarily delivered to the third respondent because it was bearing the same address. Even under section 3(c) of the Post Office Act, 1898 the delivery of a postal article at the house or office of the addressee is considered to be delivered to the addressee. In these circumstances I am of the view that the learned A.D.J. Should have disregarded the statement of Imamuddin and should have disbelieved him in respect of the service of notice under section 30 and should have presumed that the notice under section 30 had been delivered to Imamuddin.
12. In respect of contention that one composite application could not have been filed against three respondents who were claiming separate tenancy in respect of the property I failed to understand as to how the learned A.D.J. Has dismissed the application on that score. The cross-examination of the respondents has clearly proved that all the three respondents are in joint possession of the common property. They have only one room in which all the three respondents are residing. They have common house, kitchen, bathroom and lavatory and they have common compound. The landlord is common. The property is the same. Notices had also been issued to all the respondents on the same day and almost all the questions were common between them and, therefore, this could not be regarded a case of misjoinder of defendants. If the learned A.D.J. Had perused the provisions of Order I, rule 3, C.P.C. Then he could have seen that all the persons can be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise. It is, therefore, apparent that for the purpose of considering the misjoinder of defendants the allegations made by the plaintiff/applicant are the deciding factor. Moreover, Order I, rule 9 of C.P.C. Provides that no suit shall be defeated by reason of the misjoinder or non- joinder of the parties, and the Court may in every suit deal with the matter in controversy so far as regards, right and interests of the parties actually before it.
13. I am, therefore, clearly of the view that one common application for ejectment against the respondents was maintainable in the circumstances of this case. The view of the learned A.D.J.
Was quite wrong. The result is that this second appeal is allowed and since the respondents never claimed to have made any payment of rent, therefore, the order of ejectment passed by the Rent Controller is hereby restored and the respondents are directed to hand over the possession of the premises in their possession to the appellant. The respondents shall have to make some alternate arrangements, therefore, I allow them four months, time to vacate the premises.