( 1 ) RESPONDENTS-PLAINTIFFS filed a suit against the appellants for their ejectment, arrears of rent and mesne profit. The suit was filed, on the allegation that the defendants were wilful defaulters and a combined notice of demand and termination of tenancy has been given and their tenancy stands terminated.

( 2 ) BESIDES other pleas the defendants maintained that any notice was not served upon them so neither they are defaulters nor their tenancy stands terminated. It would appear that a registered notice was sent addressed separately to defendant No. 1, the mother as well as defendant No. 2, the son who were co-tenants at Varanasi address on 4-8-1970. On the two notices there is an endorsement of the postman dated 8-8-1970 that the addressee refused to accept the notice, and the service was claimed by denial. The stand of the defendants was that defendant No. 2 who is employed in Government Cement Factory Dala, District Mirzapur and ordinarily resides there, had to perform Mundan ceremony of his son at Vindhyachal Mirzapur, so he sent a letter to his mother to come to Mirzapur by 6-8-1970 evening and they both would proceed for such. Mundan on 7-8-1970 and they so proceeded and returned to Varanasi only in the night of 8-8-1970, The trial Court believing the defendants evidence and holding that the service of the notice is not proved dismissed the suit for ejectment while granting a decree for Rs. 339/- as rent up to Aug. 1970 and also granting a decree for further rent for subsequent period on payment of additional Court fee. The plaintiffs preferred first appeal. The first appellate Court found that the service of the notice dated 8-8-1970 is proved and not rebutted, so presumption would prevail and consequently the defendants are also liable to ejectment in addition to the decree for rent and mesne profit.

( 3 ) AGGRIEVED from such judgment, and decree of the first appellate Court dated 22-7-1972 a second appeal has been preferred by the defendants.

( 4 ) THE only point that calls for determination in this second appeal is whether notice dated 4-8-1970 given by the plaintiffs has been served upon the defendants. There is no dispute concerning the proposition of law that there may be a presumption of services of notice by denial on endorsement by the postman to that effect even without producing the postman. There is also no dispute that such presumption is not conclusive but rebuttable. It is also settled law that if such a presumption has been rebutted the burden again shifts upon the plaintiffs to prove by his further evidence the service of the notice upon the tenant. In such situation production of the postman as a witness would become material. Though the proposition of law is not disputed as such I may also quote rulings which go to support such proposition. (1) Puwada Venkateswara v. C. V. Ramana, AIR 1976 SC 869; (2) Ram Nakshatra v. Gridhar Das Kashva, 1979 (U. P.) RCC 5; (3) Mohd. Ishaq Khan v. Delhi I and S Co. , AIR 1979 All 366; (4) Ranjit Singh v. Nirbhayanand (1970 All LJ 455 ).

( 5 ) IN the case of Ishaq (supra) summons by registered post returned as refused. Statement made on oath by adverse party that summons was not tendered. Failure to summon postman was held sufficient ground for setting aside the ex parte order.

( 6 ) THE first appellate Court after referring to statement of defendant No. 2 and certain papers and also alluding to the statement of plaintiff Ram Prakash found that the presumption is not rebutted.

( 7 ) LEARNED counsel for the respondents urged that such finding is a finding of fact and the matter cannot be considered by the second appellate Court under S. 100 C. P. C. In support of such argument reliance has been placed upon the following rulings: (1) Ram Chandra v. Ramalingam, AIR 1963 SC 302; (2) Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC, 57; (3) Sidh Nath v. Roop Rani, AIR 1977 All 286 in which large number of earlier pronouncements have been considered