N.C Mukherji, J.:—This is an appeal against the judgment and decree dated the 25th November, 1976 passed by Shri B.N Chowdhury, Additional District Judge, 2nd Court, Birbhum on Title Appeal No. 102 of 1974 affirming those of Shri D.K Roy, Subordinate Judge, Birbhum dated 24th April, 1974 in Title Suit No. 37 of 1970. The defendant is the appellant in this Court.

2. The plaintiff brought a suit for ejectment of the defendant and for recovery of arrears of rent. The plaintiff's case may, briefly, be stated as follows:

The plaintiff is the owner of the Cinema Hall named Santi House together with other building at Sainthia under Anchal Panchayat of Sainthia. By a registered indenture dated 19th March, 1956 it was agreed that the defendant would be a tenant under the plaintiff in respect of the suit premises for 4 years at a monthly rent of Rs. 400/- if the defendant procures at his own cost the necessary cinema licence for exhibiting the cinema at the hall by 30th April 1956 and in that case the date of commencement of the lease would be the date on which the defendant could procure the licence. It was further agreed that on expiry of the aforesaid period of 4 years the defendant would have an option to renew the lease for a further period of 3 years as a monthly rent of Rs. 450/- and for the second optional fresh term of 3 years at a rent of Rs. 500/- per month. The defendant failed to procure licence for running cinema show at the hall by the stipulated period in spite of the fact that several extensions were given by the plaintiff at defendant's request. The defendant could not fulfil the condition and it is alleged that grant made by the indenture did not and could not take effect. Possession of the cinema house was delivered to the defendant in anticipation of his success to bring the cinema licence for exhibiting cinema show at the hall and at that time the defendant deposited a sum of Rs. 1200/- with the plaintiff. The defendant occupied the cinema house in expectation of getting a licence as a near date without paying any rent but on depositing a sum of Rs. 1200/- As the defendant failed to procure cinema licencs the plaintiff asked the defendant to quit. But the defendant wanted to remain in possession of the cinema house at a monthly rent of Rs. 400/- according to English Calendar months with effect from 1st April, 1958 irrespective of the fact of the licence getting or not getting. It is alleged that the defend ??? obtained a licence in January, 1960 which could not and did not effect the lease from month to month which commenced on and from 1st April, 1958. The plaintiff respected aim all the terms of the indenture except the old precision of the date of commencement of the lease and as such, the defendant was allowed to possess the hall upto December 1669 when the terms of 4 years plus 3 years came to an end. The plaintiff farther asked defendant to vacate the suit premises on the expiry of December, 1969 after adjustment or a sum of Rs. 1200/- deposited with the plaintiff as security. The defendant paid no heed to the request of the plaintiff. Accordingly, the plaintiff sent a notice of ejectment by registered post with A.D to the defendant both at his Calcutta address and at his Sainthia address determining the tenancy of the defendant with the expiry of the month of April, 1970. The postal acknowledgments were not received by the plaintiff. Accordingly, the plaintiff affixed on 15.4.70 a copy of the notice at a conspicious part of the cinema house. On the expirty of the statutory period, the plaintiff brought the suit for a decree of ejectment against the defendant as he failed to give up vacant possession in respect of the suit premises in favour of the plaintiff. The suit was contested by the defendant by filing written statement. The legality, validity as well as the service of the notice were seriously challenged. The defendant claims non-ejectable tenancy right in respect of the premises under the plaintiff at a fixed monthly rent of Rs. 400/- payable with effect from 1st April, 1958 according to English calendar. It is also asserted that the premises is used for manufacturing and or industrial purposes all through since it was let out to the defendant and the same was to the knowledge of the plaintiff. It is further alleged that the tenancy was not determined in accordance with law. The further case of the defendant is that for renovation, remodeling and development of the structure of the suit properly the defendant had to incur an expenditure of Rs. 1,00,000/-. Both the courts below negatived all the contentions of the defendant and decreed the suit. Hence the present appeal.

3. Mr. Ranadeb Chowdhury, learned Advocate with Mr. Benoy Krishna Raj, learned Advocate, for the appellant, raises only one point in the appeal, namely, that the notice has not been served upon the defendant. It is contended by Mr. Chowdhury that in this case the plaintiff has failed to prove that the notices which were sent by registered post were served on the defendant. The defendant strongly denies the service of notice. Admittedly, the acknowledgment slips were not received by the plaintiff. The plaintiff wrote a letter to the postal authority and got some reply. The reply of the postal authority, together with the enclosures, according to Mr. Chowdhury, do not prove that the registered letters were served on the defendant. Mr. Chowdhury concedes that there is no doubt a presumption that the letters which were sent by registered post and which did not come back to the sender were duly served on the defendant. But, Mr. Chowdhury contends that such a presumption is rebuttable. In this particular case, the defendant has asserted that no registered letter was received by him. That being so, it was necessary for the plaintiff to prove by satisfactory evidence that the registered letters were served on the defendant. But the plaintiff has failed to produce any satisfactory evidence to that affect. When the plaintiff did not get back the acknowledgment slips she wrote a letter on 21.4.70 to the Superintendent of Post Officer. That letter was replied to on 22.5.70 In that letter it is stated, that the registered letters were delivered to the address as on 6.4.70 and 9.4.70 In that letter, there is a reference to Sainthis R.L Nos. 116 and 117—both dated 3.4.70 (Exts. 5 and 5a). The registration receipts 116 and 117 and they bear the date 3.4.70 Neither the Superintendent or Postmaster nor any one from his Post Office has come to prove this letter (Ext. 1a). Together with Ext. 1a? two attested copies of acknowledgment slips were also sent. Above the words “signature of addressed” it is written “Sd/-, Illegible” on both the copies. It appears, therefore, that, it cannot be said that the signature was that of the defendant. No record of the postal department could be produced as the Sub-Postmaster of Kasba Post Office sent a letter in response to the summons issued by the court that in respect of the relevant records in respect of delivery of Sainthia registered letters Nos. 116 and 117 dated 3.4.70 are not available. It was further stated that as par rules of the department records of registration etc. are destroyed beyond the period of 1 1/2 years. P.W 1 has proved this letter which is Ext. 1. He also proves the signature of the Postmaster. This letter shows that the records are not available as those have been destroyed. We are thus, left with the registration receipts and the letter of the Superietendent of Post Office (Ext. 1a) together with the enclosures, namely, the attested copies of the acknowledgment slips which are Exts. 6 and 6a. Mr. Chowdhury contends that considering the circumstances of this case and in view of the specific denial of the defendant, it cannot be said that the notices were duly served on the defendant. In support of his contention, Mr. Chowdhury first refers to a decision reported in 1976 (2) Supreme Court Cases 409 (Puwada Venkateswara Rao v. Chidamana Venkata Ramana were considering a case of Bombay High Court reported in AIR 1968 Bombay 36 where it was held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused the letter at it was never brought to him. It was further held that in this state of evidence unless the postman was produced the statement of the defendant on oath must prevail. Their Lordships also considered a Calcutta Case reported in 52 CWN 659 where it was held that a letter sent by registered post with endorsement ‘refused’ on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement ‘refused’ could not raise a presumption of failure to serve. On the other hand, the presumption under S. 114 of the Evidence Act would be, that in the ordinary course of business it was received by the addressee and actually refused by him. Their lordships of the Supreme Court observed this is also a correct statement of the law. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to be rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. Mr. Chowdhury next relies on a decision reported in 19 CWN 489 (Gobinda Chandra Saha v. Dwarka Nath Patita). It was held in that case “the presumption mentioned in S. 114 of the Evidence Act is not presumption of law, but a presumption of fact and whereas in the present case, the defendant pledges his oath that the cover was never tendered to him, the court could not treat the presumption of irregularity of official business as conclusive against him.”

4. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the respondent submits that the documents (Exts. 1, 1a, 5, 5a and 6, 6a) raise a very strong presumption that the registered letters were served on the defendant and simple denial on the part of the defendant that he did not receive the letters cannot rebut the presumption and the learned courts below were right in rejecting the contention of the defendant. In support of his contention, Mr. Banerjee first refers to a decision reported in 62 CWN 193 (Sushil Kumar Chakravarty v. Ganesh Chandra Mitra). In this case, it has been held “where the letter containing a notice to quit” has been proved to have been properly addressed prepaid and posted by registered post and the original cover containing the notice which is put in evidence is found to have the words ‘refused’ written on it, the court is entitled to hold without the postal peon being examined to prove the fact of refusal by the addressee, that proper service has been effected. Their Lordships considered the decision reported in 19 CWN 489 and observed as follows—“All that the learned Judges said after expressing their view that proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the presumption that it has been so returned because it has been refused by the addressee; for it may well be that it has been returned because the addressee has not been found; much less is there a presumption that the cover has been tendered the addressee on a particular date, that this was presumption of fact and where, as in this case, the defendant pledges his oath that the cover was never tendered to him we cannot treat the presumption of regularity of official business conclusive against him. According to the learned Judges, the above statement, that the presumption of regularity of official business cannot be treated as conclusive, was intended to be confined to the facts of that particular case. The ordinary way of rebutting a presumption of service was denial on oath by the defendant. Where this denial is believed, the presumption certainly stands rebutted”. This observation rather help the appellant. The present case is stronger as in the present case, the registered letters have not come back to the sender with the endorsement ‘refused’. As has been stated earlier, the acknowledgment slips also did not come back to the sender. On written enquiry being made by the plaintiff, reply was given by the Superintendent of Post Offices with the enclosures said to have been the attested copies of the acknowledge slips. Those attested copies (Ext. 6 and 6a) have not been proved. Again, the signatures of the addressee are illegible Mr. Banerjee also relies on a decision-reported in AIR 1968 Calcutta 49 (Sukumar Guha v. Naresh Ch. Ghosh). In this case, it has been held that “where notice was sent under a Certificate of Posting at Calcutta address where defendant's family resides it was held that the service of notice by post was effective under S. 13(6) of the West Bengal Premises Tenancy Act and S. 106 of the Transfer of Property Act”. The facts of this case are completely different and cannot, in any way, help the respondent Mr. Banerjee also seeks reliance from a decision reported in AIR 1970 Calcutta 328 (Sm. Kanak Lata Ghose… v. Amal Kumar Ghose….). In this case, it was held a presumption that the letter was received by the addressee without the Certificate of Posting has been proved, may, however, be rebutted. But it was found that in the case before their Lordships no attempt was made to rebut the presumption of posting. There was some denial, but that denial was disbelieved as the denial was on the part of a person who was highly interested and as his conduct before and after the passing of the decree made it highly probable that he has suppressed the truth in regard to the receipt of the letters. Considering the facts of the case, their Lordships could not attach any importance to the denial and held that the presumption was not rebutted. Mr. Banerjee also relied on a decision reported. In 39 CWN 1041 (Rajani Sutradhar v. Baikuntha Chandra Saha) In this case, these notices to quit were sent by three registered and correctly addressed letters to three joint tenants, one of them came back with the endorecment that it was refused and in respect of other two, the acknowledgment receipts, purporting to be signed by the addressees were returned but the signatures were not proved at the trial. It was held that the addressees of the letters, not returned, must be held to have been properly served and that consequently, the tenants being joint tenants, it must be taken that all three were served. The facts of this case are also different from the facts of the present one and therefore, the principle laid down has no application in the present case. As has been stated earlier, the documents sent from the Post Offices, namely, Exts. 6 and 6a being the attested copies of the acknowledgment slips have not been satisfactorily proved. The signatures of the addressee are illegible. The records with regard to the registered letters which are kept in the Post Office have been destroyed. In such circumstances, we hold that the presumption of services of the registered letters on the defendant has been rebutted by the defendant's assertion that no registered letter was tendered to him. That being so, the plaintiff cannot get a decree for eviction.

5. In the result, the appeal is allowed on contest. The judgments and decrees passed by the courts below are set aside. There will be no order for costs in this appeal. The plaintiff's suit is dismissed. Parties to bear their own costs in the courts below.

Sudhindra Mohan Guha, J.:—I agree.

Appeal allowed.