ORDER A.N. Varma, J. - This is a tenants petition. It is directed against a decree passed by the learned Munsif West Allahabad dated 13-5-1974 decreeing a suit for ejectment of the petitioner from a residential accommodation as well as for recovery of Rs. 355.40 as arrears of rent, damages, etc. and the order passed by the learned Civil Judge, Allahabad dated 21-7-1976 dismissing an appeal filed by the petitioner against the aforesaid decree. 2. The suit giving rise to this petition was filed by respondent No. 1, the landlord of the accommodation in dispute, against the petitioner for the reliefs mentioned above on the allegation that the petitioner was in arrears of rent since 1-1-1969. The plaintiff therefore, sent by registered post a composite notice dated 23-2-1970 demanding the arrears under Section 3 (1)(a) of the UP. (Temporary) Control of Rent & Eviction Act, 1947 and terminating the tenancy of the petitioner upon his failure to comply with the notice of demand. The notice was served on the petitioner by 'refusal' i.e. the petitioner refused to take delivery of the registered cover containing the notice of demand. The petitioner neither paid the arrears of rent demanded, nor vacated the premises, and, therefore, the suit. 3. The suit was contested by the petitioner on the assertion that the notice of demand was not served on the petitioner. He never refused to accept the notice. The suit was not maintainable for the reason that after the death of Mahabir Prasad, the original owner of the accommodation in dispute, the house was inherited by the plaintiff as well as Dakhini Prasad Rajpal. As Dakhini Prasad Rajpal had not joined in the suit, the suit was not maintainable. At any rate, the petitioner had always been offering the rent of the house to the plaintiff and his brother Dakhini Prasad Rajpal every month, but they refused to accept the rent on one pretext or the other with a view to create a ground for the eviction of the petitioner. The petitioner never avoided to receive any notice sent by the plaintiff. It was wrong to say that any notice was tendered to the petitioner by postal authorities or that he had refused to accept the same. It was false to say that the petitioner had refused to accept the notice on 28-2-1970. 4. The petitioner never avoided to receive any notice sent by the plaintiff. It was wrong to say that any notice was tendered to the petitioner by postal authorities or that he had refused to accept the same. It was false to say that the petitioner had refused to accept the notice on 28-2-1970. 4. Relevant issues were framed by the trial court which notwithstanding the fact that the suit was liable to be transferred to the Small Cause Courts side in view of the provisions of U.P. Civil Laws (Amendment) Act, 1972 (Act No. 37 of 1972) continued to retain the suit on its file and tried it on the regular side contrary to the provisions of the said Amending Act. 5. The learned Munsif trying the suit decreed it. On the crucial question of the service of the notice, the learned Musif took the view that the endorsement of refusal made on the envelope containing the notice raised a presumption of due service, and that inasmuch as the burden lay on the defendant, he must be deemed to have failed to discharge that burden because he had not had the postal official summoned. Relying on this presumption, the trial court held the aforesaid notice had been proved to have been duly served on the defendant on 28-2-1970, and inasmuch as the petitioner did not pay the arrears of rent demanded within one month of that notice, he had rendered himself liable to be evicted. A decree for ejectment was consequently passed against the petitioner. The relief for recovery of Rs. 355.40 as arrears of rent, damages and Bhumi Bhawan Kar etc. was also granted. 6. The petitioner unsuccessfully appealed. The appellate court endorsed the finding of the trial court on the issue whether or not, the presumption of notice, in view of the postal endorsement appearing on the registered cover, had been rebutted. It may be mentioned here that the finding that the notice mentioned above had been served on the petitioner by refusal, is based on presumption and not on any direct evidence. 7. Counsel for the petitioner vehemently contended that neither of the two courts below correctly comprehended the law relating to the presumption of service of notice arising from the postal endorsement of "refusal" appearing on the registered cover. 7. Counsel for the petitioner vehemently contended that neither of the two courts below correctly comprehended the law relating to the presumption of service of notice arising from the postal endorsement of "refusal" appearing on the registered cover. It was also argued that in any case the petitioner had rebutted that presumption and the finding of the courts below to the contrary was not only entirely unsustainable in law but was clearly perverse. It was submitted that on the evidence led by the petitioner, no court acting judicially could have reached the conclusion that the petitioner had not sufficiently rebutted the presumption. Learned counsel also urged that the finding of the courts below is also vitiated in law being based upon unwarranted conjectures and surmises. 8. In regard to the question of jurisdiction, it was submitted that the decree passed by the trial court was a nullity inasmuch as the suit was liable to be tried as a small cause in view of Section 9 of the U.P. Civil Laws Amendment Act, 1972 and the failure of the petitioner to raise that objection at the trial of the suit before the learned Munsif could not cure the invalidity of the decree. 9. Counsel for the plaintiff-respondent on the other hand urged that the decree passed by the courts below were concluded by findings of facts, and this court exercising jurisdiction under Article 226 of the Constitution could not review the said findings on the ground upon which their validity was assailed by the learned counsel for the petitioner. 10. Having heard learned counsel for the parties, I am clearly of the view that the contentions raised on behalf of the petitioner in regard to the findings of the courts below on the question of service of notice of demand are well founded. In my view the courts below did not appreciate the law on the issue correctly; I also agree with the learned counsel for the petitioner that on the facts of the present case, the petitioner had legally discharged the burden of proof and rebutted the presumption which initially attached to the postal endorsement of "refusal". In my judgment, the defendant could not have led any other or better evidence for discharging the burden which lay upon him to rebut the presumption. 11. In my judgment, the defendant could not have led any other or better evidence for discharging the burden which lay upon him to rebut the presumption. 11. The trial court disposed of the issue by observing that the burden of proof lay upon the defendant to have summoned the postal official to disprove the endorsement. The trial court clearly misconceived the law there. In order to rebut the presumption, the petitioner was not required to produce the postal official. At any rate, it would not be correct to say that without the production of the postal official, the petitioner could not be said to have rebutted the presumption. The petitioner had both in his written statement as well as subsequently in his statement on oath categorically denied having refused to accept any notice. Not only that, the petitioner had further stated that throughout the relevant period, and in particular on 28-2-1970 the petitioner was regularly attending his office, and that he was not at his residence during the hours when money orders are normally tendered. He had further produced a certificate from the Head of his office, namely, the Deputy Registrar of the High Court in support of his assertion that the petitioner had been regularly attending his office and was not on leave on the relevant date or dates. All this was legal evidence by which presumption attaching service of the notice could in law be rebutted. The trial court, therefore, erred in law in taking the view that the defendant failed to discharge the burden of proof which lay upon him because he had not had the postal official summoned to disprove the endorsement. The trial court has also observed that the petitioner had not led evidence to disprove the endorsement. Obviously, the trial court failed to consider the evidence of the petitioner mentioned above. 12. The appellate court too does not appear to have conceived the legal position as regards the rebuttal of presumption correctly. It has observed that there was presumption of correctness of the endorsement of "refusal" made by the postal authorities, and that the burden lay upon the petitioner to rebut that presumption. In the view of the appellate court that burden is not discharged by the denial of service. 13. It has observed that there was presumption of correctness of the endorsement of "refusal" made by the postal authorities, and that the burden lay upon the petitioner to rebut that presumption. In the view of the appellate court that burden is not discharged by the denial of service. 13. Counsel for the petitioner cited a number of decisions (See 1978 UP Ren CC 498; 1978 (Supplementary) UP Ren CC 496; 1979 UP Ren CC 5 and AIR 1976 Delhi 111) in support of his submission that the presumption which arises as regards the service of a registered notice where the notice is returned with the endorsement of "refusal" stands rebutted, and the burden of proof shifts to the plaintiff, if the defendants denied having refused to accept the notice. Counsel for the respondents on the other hand placed reliance on a decision of the Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana, ( AIR 1976 SC 869 , paragraphs 8, 9 and 10). 14. From an examination of the authorities cited above, the true legal position seems to be that to begin with, there is a presumption of the service of a registered notice where the notice is correctly addressed and there is a postal endorsement of "refusal" by the addressee. But the presumption stands rebutted on the denial on oath by the addresee. It is another matter that the veracity of the defendant's statement might be thrown in doubt by his own admissions or conduct or other evidence available on the record in which case the denial of the tenant might be rejected on the around that the same is not worthy of belief. But if there is no reason to doubt the veracity of the denial made by the defendant, the plaintiff cannot succeed on the basis only of presumption, i.e. without adducing further evidence. This is what emerges from an analysis of the decisions cited by both the learned counsel for the parties. 15. In the present case, the defendant had not contented himself with a bare denial of having received the notice. He had further stated that during the relevant date or dates, he was attending to his duties in the office, where he is employed. 15. In the present case, the defendant had not contented himself with a bare denial of having received the notice. He had further stated that during the relevant date or dates, he was attending to his duties in the office, where he is employed. In support of his testimony he had also produced a certificate from the Deputy Registrar, High Court in the office of which the petitioner is employed, to say that the petitioner was not on leave from 23-2-1970 to 28-2-1970 and that the petitioner was attending office regularly during this period. The appellate court has dismissed this certificate on the ground that the Deputy Registrar had not been produced to say that the petitioner remained in the office throughout the day on 28-2-1970. 16. The comments made by the appellate court are wholly unwarranted. The petitioner having proved that he was on the relevant date not on leave but working in the office and the Deputy Registrar, under whom the petitioner was working, having certified that the petitioner attended his office regularly from 23-2-1970 to 28-2-1970 it was for the plaintiff to prove the exceptional fact that the petitioner had left his office during working hours and was at his residence only to refuse to accept the notice of demand knowing fully well that the refusal was fraught with grave risks and consequences of having to vacate the accommodation. 17. Equally perverse, I am constrained to say, is the finding of the appellate court that the petitioner may have refused to accept the notice during hours other than the working hours 9 A.M. to 5 P.M. The petitioner could not have done better than to establish that on the relevant date and during the hours when registered covers are normally tendered by the postal authorities, the petitioner was away from his residence, being busy in his office. If the registered notice was tendered to the petitioner at some odd or unusual hours, it was for the plaintiff to establish that fact. Yet another instance of similar approach is betrayed by the following observations :- "He was benefited by refusing the notice. If the registered notice was tendered to the petitioner at some odd or unusual hours, it was for the plaintiff to establish that fact. Yet another instance of similar approach is betrayed by the following observations :- "He was benefited by refusing the notice. Therefore, he must have refused it." It is obvious that not only would the petitioner not have benefited by refusing to accept the registered notice of demand, but the "refusal" would have exposed the petitioner to the risk of maximum penalty of having to vacate the premises as a result of failure to comply with the notice of demand. 18. It is on such perverse grounds that the appellate court observed that the defendant had failed to discharge the burden which lay upon him. It is also clear that the appellate court was not conscious of the true legal position as regards the presumption of the correctness of the postal endorsement and the shifting of the burden upon the denial of that fact by the addressee. 19. In Ram Nakshatra Misra v. Girdhar Das Kashya (1979 UP Ren CC 5) K.N. Singh J. had occasion to consider this question upon facts which were materially and substantially similar to those of the present case. In that case also the defendant, the addressee of the notice, had given evidence to show that on the relevant date i.e. on 18-12-1971 the defendant was on duty in the college where he was employed. The defendant had denied in the written statement as well as in his testimony that he had refused to accept the notice. K.N. Singh, J. observed that the defendant could not have produced any further or better evidence in support of his denial and that whatever evidence was possible for the defendant to adduce, he had done that. After making this observation K.N. Singh, J. observed thus:- "6. The Additional District Judge committed a patent error of law in rejecting the defendant's testimony on the ground that the defendant had not raised any specific plea in the written statement. As noted earlier, the defendant had specifically denied service of notice and had alleged collusion between the plaintiff and the postman. On the facts and circumstances of the present case, the initial presumption of service of notice stood rebutted. As noted earlier, the defendant had specifically denied service of notice and had alleged collusion between the plaintiff and the postman. On the facts and circumstances of the present case, the initial presumption of service of notice stood rebutted. Since the plaintiff-opposite party failed to produce any other evidence to show that the notice in question was tendered to the defendant or that he refused to accept the same the notice could not be held to be served on the defendant merely on the basis of presumption". 20. The facts of Ram Nakshatra Misra's case, 1979 UP Ren CC 5 (supra) are in pari materia with the facts of the present case and following the decision of the learned Judge, I hold that the defendant had rebutted the initial presumption of service of notice by ample evidence and the finding of the court below to the contrary is manifestly unsustainable in law. The finding of the appellate court is also perverse and has to be set aside. As the plaintiff had not led any further evidence to prove that the defendant had refused to accept the notice, it must be held that no notice of demand was served on the petitioner. Hence there was no question of the petitioner having committed any default. 21. In view of the fact that the findings as recorded by both the courts below on the question of the service of notice of demand on the petitioner are vitiated by errors of law. I cannot accept the contention of the learned counsel for the plaintiff-respondent that this Court has no jurisdiction to interfere with these findings. As regards the decision in the case reported in AIR 1976 SC 869 upon which the learned counsel for the plaintiff respondent placed reliance I find no observations therein which might support the contention of the plaintiff respondent. Indeed their Lordships of the Supreme Court approved the decision of the Bombay High Court cited therein in which the same view was taken as regards the question involved as by this Court in the cases reported in 1978 UP Ren CC 498 and 1979 UP Ren CC 5. 22. Indeed their Lordships of the Supreme Court approved the decision of the Bombay High Court cited therein in which the same view was taken as regards the question involved as by this Court in the cases reported in 1978 UP Ren CC 498 and 1979 UP Ren CC 5. 22. In the view which I am taking as regards the service of the notice, it is not necessary for me to go into the other question, namely whether the decree passed by the courts below for the ejectment of the petitioner is not wholly without jurisdiction in view of Section 9 of U.P. Civil Laws (Amendment) Act 1972 (U.P. Act No. 37 of 1972). I may however, add that the learned counsel for the respondent had conceded that in view of the said provisions, the suit was liable to be tried as a small cause court suit and the learned Munsif ought to have transferred it on the small cause court side. His argument, however, was that the petitioner was not prejudiced in any way as he had a fuller trial. The suit was tried on the regular side thereby both the sides got fuller opportunity of establishing their respective cases. As mentioned above, it is not necessary to express any opinion on this controversy as the petition is entitled to succeed on the first point. 23. In view of what has been stated above, this petition succeeds and is allowed. The decrees passed by the courts below for the ejectment of the petitioner are quashed. The decree passed by the trial court and affirmed by the appellate court for recovery of Rs. 355.40 as arrears of rent and Bhumi Bhawan Kar is however, affirmed. The decrees for costs passed by the courts below against the petitioners are also quashed. The parties are left to bear their own costs.