The presumption of service of notice under Section 114 of the Evidence Act and Section 27 of the General Clauses Act is rebuttable and can be overcome by evidence to the contrary.

( 1 ) THIS is a defendants second appeal arising out of suit for ejectment and also for recovery of arrears of rent.

( 2 ) ACCORDING to the plaintiffs case, the plaintiff is a registered society and Sri Bishan Swaroop gupta is its secretary duly authorised to file the suit. The defendant, according to the plaintiff is a monthly tenant @ Rs. 20/- per month who had been served with a registered notice dated 28-12-1969 under Section 106 of the T. P. Act by which his tenancy has been duly terminated and despite service of the notice he is not delivering the possession of the property in suit and hence the suit.

( 3 ) THE aforesaid suit has been contested by the defendants on the ground that no valid notice has been served on him and further that the provisions of U. P. Act No. 3 of 1947 were applicable to the case and the defendant was not liable to eiectment, besides other pleas.

( 4 ) THE trial court, besides other issues, framed issue No. 2 to the effect:

"whether the plaintiff has served any notice of termination of tenancy upon the defendant. If so, whether that is a valid notice?"

On the aforesaid issue the trial court held that the notice which is alleged to have been served by the plaintiff was not a valid notice as it has not been proved that the person sending the notice was authorised to send the notice on behalf of the plaintiff. The plaintiffs suit was accordingly dismissed. Feeling aggrieved the plaintiff filed an appeal which has been allowed. The lower appellate court reversed the finding of the trial court and held after admitting additional evidence that the person sending the notice and filing the present suit on behalf of the plaintiff was authorised to send the notice and file the suit.

( 5 ) IN the present second appeal the learned counsel appearing for the appellant has urged only one point. It has been argued that the alleged notice terminating the tenancy of the defendant has not been proved to have been served on the defendant. The learned counsel for the respondent, however, in connection with the aforesaid point raised by the learned counsel for the appellant has argued that the aforesaid point has neither been raised before the lower appellate court nor taken in the grounds of appeal in the present second appeal and thus the appellant should not be allowed to raise this point in this second appeal.

( 6 ) A bare perusal of the written statement filed by the defendant would show that the defendant had denied that notice has been served on him. A bare perusal of the issues framed by the trial court would clearly indicate that a specific issue was framed by the trial court on the aforesaid question of service of notice on the defendant. From the evidence which has been led by the parties it is also clear that the parties had led evidence on the point. It, however appears, that as the trial court while framing issue No. 2, has, in fact, incorporated two questions for determining in that issue i. e. service of notice on the defendant and also the validity of the notice, the trial court proceeded to decide the question regarding the validity of the notice first and held that the person sending the notice on behalf of the plaintiff was not authorised to send it and thus the notice was invalid. In view of the aforesaid finding, which was given by the trial court, the trial court did not record a further finding as to whether notice was in fact served on the defendant or not. The appeal was filed by the plaintiff and was confined only to the findings which had been recorded against the plaintiff. In the judgment given by the lower appellate court thus we find no mention of the aforesaid point. In my opinion, when a specific issue has been framed on the aforesaid question and when the parties had also given evidence on this point and also looking to the facts of the present case which have been enumerated above, the interest of justice requires that the defendant be allowed to raise this question i