Tarun Kumar Gupta, J.

This appeal is directed against the judgment and decree dated 15th June, 1995 passed by the learned Assistant District Judge, Baruipur, 24 Parganas (South), in Title Appeal No.71 of 1993 affirming the judgment and decree dated 6th February, 1992 passed by learned Munsif, 1st Court at Baruipur, 24 Parganas (South) in Title Suit No.300 of 1988.

The respondent as the plaintiff filed said suit alleging that the defendant was a monthly tenant under him at a rental of Rs.25/- per month payable according to Bengali calendar month in respect of the suit premises. Defendant defaulted in payment of rent and accordingly plaintiff sent a notice under Section 106 of the T. P. Act under registered post with A/D asking the defendant to quit and vacate the suit premises on expiry of the month of Agrahayan 1395 B. S. The defendant refused to accept such notice and did not also vacate the suit premises. Accordingly, the suit for ejectment and recovery of khas possession with consequential reliefs was filed.

The Appellant / defendant contested the said suit by filing a written statement denying the material allegations of the plaint and contending inter alia that the defendant was a tenant under the plaintiff’s father Haripada Banerjee and that on the death of Haripada Banerjee, all his heirs became joint landlord and that the plaintiff was not the sole landlord and had no authority to file said ejectment suit as the sole landlord. It was further alleged that defendant did not receive any notice and that plaintiff managed to obtain a postal endorsement “refused” in collusion with postal peon. The suit was liable to be dismissed.

Learned Trial Court framed several issues including an issue as to whether there was relationship of landlord and tenant between the parties and whether the notice under Section 106 of the T. P. Act was legal, valid and sufficient and was duly served upon the defendant.

Both sides adduced evidence. After contested hearing learned Trial Court decreed the suit for ejectment observing that the defendant was a tenant under the plaintiff and that the notice under Section 106 of the T. P. Act was legal, valid and sufficient and that on account of refusal on the part of the defendant to accept the same it amounted to good service.

Learned Lower Appellate Court also concurred to the aforesaid finding of the learned Trial Court by dismissing the appeal preferred by the defendant.

At the time of admission of second appeal, it was decided that this appeal will be heard as it arises a substantial question as to the propriety of the finding of the Court of appeal below on the point of service of notice.

Mr. Probal Mukherjee, learned counsel for the appellant, submits that learned Courts below failed to take note that the defendant tenant categorically stated not only in his written statement but also during his evidence that no notice was ever tendered to him by the postal peon. As such, there was no question of refusal on his part to accept the same and that the endorsement “refused” made by the postal peon on the envelope was not correct. According to Mr. Mukherjee, after said categorical assertion of the defendant tenant, both in the written statement as well as in his evidence, the presumption of due service in view of endorsement of postal peon on the envelope as “refused” stood rebutted. He further submits that under those circumstances the onus again shifted upon the plaintiff landlord to prove by bringing the postal peon on the dock that there was really any tender of said notice to the defendant by the postal peon and that the defendant refused to accept the same.

According to him, learned Courts below failed to take note of this principle and accordingly came to a wrong conclusion that said endorsement of refusal made by the postal peon on the notice amounted to good service. In support of his contention he refers case laws reported in 1988 (1) CHN page 219 (Mano Ranjan vs. Suchitra), 2002