JUDGMENT Sukumar Chakravarty, J. : This appeal is directed against the judgment and decree passed by Shri R. Banerjee, the learned Additional District Judge, 6th Court, Alipore, in Title Appeal No. 981 of 1967, reversing the judgment and decree passed by Shri J.K. Mitra, the learned Subordinate Judge, 9th Court, Aliopore, in Title Suit No. 76 of 1950, and dismissing the said suit. 2. Plaintiffs filed the aforesaid title suit for a declaration that the house property described in Schedule A to the plaint was not liable to be put to any auction sale in connection with the certificate cases including the certificate case No. 10 ITC of 1957-58 for any certificate debt of the defendant no. 3 Bhagat Ram Bagaria and that the said certificate cases were invalid and no binding on the plaintiffs and for permanent injunction restraining the defendants 1 and 2 from holding any auction sale with regard to the said suit property. 3. The case of the plaintiff in brief was that by a registered deed of trust executed on 6.8.67, the defendant no. 3 Bhagatram Bagaria settled two of his several house properties namely premises no. 1, Nather Bagan Street and 112, Maharshi Devendra Road irrevocably and absolutely in trust for the benefit of the plaintiffs and also for charities for educational and religious purposes. Since 6.8.57, plaintiff no. 1 was in possession of the said properties as trustee thereof and had been administering and carrying out the purpose of the trust in the manner laid down in the deed after duly getting her name mutated in the Corporation and other records. On 20.3.59, an advertisement appeared in the daily Amrita Bazar Patrika to the effect that the right, title and interest of the defendant no. 3 in the premises No. 1 Nather Bagan Street would be sold in auction on 8.5.59 by the defendant no.1 in the certificate case as mentioned above for recovery of the account of Rs. 65,000/- and odd being the amount of income tax assessed and due from the defendant no. 3. The plaintiff no.1 preferred a claim before Certificate Officer, defendant no, 1 asserting that the Certificate Debtor defendant no. 3 had no subsisting interest in the house property in the premises no. 1 Nather Bagan Street but that claim was rejected on 14.11.59. Against that order of refection the plaintiff no. 3. The plaintiff no.1 preferred a claim before Certificate Officer, defendant no, 1 asserting that the Certificate Debtor defendant no. 3 had no subsisting interest in the house property in the premises no. 1 Nather Bagan Street but that claim was rejected on 14.11.59. Against that order of refection the plaintiff no. 1 preferred the appeal before the Commissioner, Presidency Division but that appeal was also summarily rejected. The defendant no. 1 then proceeded again for putting the said property to auction sale Plaintiffs accordingly filed the suit claiming the reliefs as already stated. 4. The defendant no. 1 Certificate Officer and the defendant no. 2 Union of India filed separate written statement but the defendant no. 2 alone contested the suit. The defendant no.1 contended inter alia that defendant no. 3 Bhagatram Bagaria, the husband of the plaintiff no. 1 had huge liability 1953-54 and 1954-55. The defendant no. 3 failed to pay the dues in spite of the service of notice under S.29 of the Income Tax Act and as such certificates were issued under S. 46(2) of the Income Tax Act for the amount due with the penalty on 24.6.57 along with a forwarding letter requesting the Certificate Officer and the Collector to attach and auction-sell the assessee’s (defendant no 3’s) premises no. 1 Nather Bagan Street. The Certificate Officer started the certificate case and issued the notice under S. 7 of the Bengal Public Demands Recovery Act 1913 (hereinafter referred to as the Act). The notice was sent to the assessee under registered cover and a copy o the notice was also sent for service upon the assessee through the peon of the Certificate Officer. The assessee avoided the service of the notice upon him and caused a collusive return of the notice with the remark on the cover ‘left’ on 15.7.57 and with an intent to avoid and defeat the claim of the Income Tax Department created a collusive deed of trust in favour of his wife and minor some in respect of the house properties in question on 6.8.57 with the knowledge of the certificate case already started against him. The deed of trust was not acted upon and the plaintiffs were not in possession of the property in their independent right, plaintiffs’ suit was therefore liable to be dismissed. 5. The defendant no. The deed of trust was not acted upon and the plaintiffs were not in possession of the property in their independent right, plaintiffs’ suit was therefore liable to be dismissed. 5. The defendant no. 1 Certificate Officer took up several please in the written statement challenging the maintainability of the suit and the plaintiffs allegations but admitted the service of the notice under S.7 of the Act upon the Certificate Debtor (defendant no.3) on 8.9.57 in connection with the Certificate No. 10 IT Act (C/57-58) 6. The learned trial Court found that no notice under S.7 of the Act was sent and served upon the Certificate Debtor on or before 6.8.57 when the deed of trust was created and executed by the Certificate Debtor (defendant no.3) and that accordingly the transfer by the deed of trust was not hit by S.8 of the Act. The learned trial Court accordingly decreed the suit. 7. On appeal, the learned appellant Court reversed the judgment and decree of the learned trial Court and dismissed the suit on his finding inter alia, on the basis of the decision in 51 CWN 650 and AIR 1952 Cal. 221 that the return of the registered cover containing the notice under S.7 of the Act properly addressed, prepaid and posted by registered post with the postal endorsement ‘left’ dated 15.7.57 proved the service of that notice before 6.8.57 when the deed of trust in respect of the suit property was created and executed and that accordingly the transfer of the property in question by such trust-deed was void in terms of S.8 of the Act. 8. Plaintiffs being aggrieved have preferred this appeal. 9. Dr. Pal appearing for the appellants in his submissions has raised the short and simple question of law with regard to the learned Appellate Court’s finding about the service of the notice under S.7 of the Act. According to him the postal remark ‘left’ on the returned registered cover of the concerned notice with Acknowledgement Due properly addressed and prepaid and posted by registered post has rebutted the presumption of service of the notice even if drawn by the application of S.28 of Bengal General Clauses Act 1899. In support of his Court in 70 CWN 262 and 81 CWN 629. 10. None on behalf of the respondents no. 1 and 2 has appeared to contest this Second appeal. 11. In support of his Court in 70 CWN 262 and 81 CWN 629. 10. None on behalf of the respondents no. 1 and 2 has appeared to contest this Second appeal. 11. There is no dispute to the fact and the materials in the record also (viz, the postal receipt Ext. A, the registered cover Ext. B and the notice under S.7 of the Act Ext C) prove that the notice under S.7 of the Act was properly addressed, prepaid and posted by registered post for service upon the Certificate Debtor (Defendant no.3). So in terms of S.28 of the Bengal General Clause Act, the service shall be deemed to have been effected unless the contrary is proved. It therefore appears that such presumption of service is rebuttable. According to Dr. Pal the postal remark ‘left’ on the undelivered registered cover has rebutted the said presumption of service. 12. In the case of Hare Krishna Das v. M/s. Hahnemann Publishing Co. Ltd. reported in 70 CWN 262, the Division Bench of this court presided over by P. N. Mukherjee, J. observed as follows: “We may, however, make it clear that, when the record contains only the returned notice with the endorsement ‘left’ that, on the face of it and in the absence of anything else, rebuts the presumption, raised under the General Clauses Act, in favour of due service by registered post.” 13. In the instant case, the registered cover was returned with the postal endorsement ‘left’ of the date 15.7.57. There is no material in record to show that the addresses of the registered cover left the address at the sight of the postal peon to avoid the service. The materials in the record rather show that defendant no. In the instant case, the registered cover was returned with the postal endorsement ‘left’ of the date 15.7.57. There is no material in record to show that the addresses of the registered cover left the address at the sight of the postal peon to avoid the service. The materials in the record rather show that defendant no. (Certificate Debtor) had his residential address at one place and business address at another place Further it appears from the record that on 2.8.57 when the record was ordered to be put up after the service of the notice under S.7 of the Act, the Certificate Officer passed the orders as follows: “Notice under S.7 returned undelivered by the Post Office with the report left Re issue it for service through the process server also call for the list of assets of the Certificate Debtor put up on 24.9.57” On the same date further order was passed by the Certificate Officer as follows: “If the Certificate Debtor is not traceable at the address the notice should be served at 1 Nather Bagan Street as well as 99 Maharshi Debendra Road, Calcutta, by affixing if necessary and put up on the date fixed with S.R.”. 14. It appears from the orders by the Certificate Officer on 21.8.57, that on receipt of the undelivered notice with postal endorsement ‘left’, he rightly assumed that there had been no service of the notice and accordingly he ordered the re-issue of the notice for service in the manner as indicated in the orders. 15. The evidence on the side of the plaintiffs shows that notice under S.7 of the Act could not be served upon the Certificate Debtor (defendant no. 3) on or before 6.8.57. The materials in record show that the notice was actually served on the Certificate Debtor (Defendant no. 3) on 8.9.57. There is no dispute also over the same. 16. It is therefore clear that whatever presumption of service was drawn under the General Clauses Act because of the posting of the notice by registered post to the proper address, was rebutted by the postal endorsement ‘left’ on the undelivered registered cover and also by the orders of the Certificate Officer on 21.8.57. 17. 16. It is therefore clear that whatever presumption of service was drawn under the General Clauses Act because of the posting of the notice by registered post to the proper address, was rebutted by the postal endorsement ‘left’ on the undelivered registered cover and also by the orders of the Certificate Officer on 21.8.57. 17. In the case of J. Mc Gaffin & Anr v. Life Insurance Corparation of India, reported in 81 CWN 629, another Division Bench of this court presided over by S.K. Datta, J. after discussing the Single Bench decision in 51 CWN 650 which has been relied on by the learned First Appellate Court in the appeal under reference, has observed as follows: “This decision, in our opinion, does not lay down nor can there be a proposition that whenever a registered letter sent to the addressee was returned with the observation ‘left’ such service will be void service in law” 18. The decision in 51 CWN 650 based on a bit different facts where the address defendant could not show that he had a different address other than the address given on the registered cover which came back undelivered with the postal endorsement ‘left’ was followed in another Single Bench decision in AIR 1952 Cal 221 while giving an obiter regarding the service of the notice. The learned First Appellant Court while placing reliance on the Single Bench decisions in 51 CWN 650 and in AIR 1952 Cal. 227, has held that in the instant case there has been valid service of the notice under S.7 of the Act, on 15.7.57 when the registered cover containing such notice properly addressed, prepaid and posted by registered post came back undelivered with the postal endorsement ‘left’ of the date 15.7.57. It appears that the notice of the learned Judge was not drawn to the Division Bench decision in 70 CWN 262 and 81 CWN 629 already discussed above. 12. We therefore in disagreement with the learned First Appellate Court find that the service of the notice under S.7 of the Act upon the Certificate Debtor (defendant no. 3) on or before 6.8.57 could not be proved in this case. The materials in the record rather prove that the said notice was actually served upon the Certificate Debtor on 8.9.57 and the defendant no. 1 Certificate Officer has admitted this fact in the written statement. 3) on or before 6.8.57 could not be proved in this case. The materials in the record rather prove that the said notice was actually served upon the Certificate Debtor on 8.9.57 and the defendant no. 1 Certificate Officer has admitted this fact in the written statement. Such being the position, the transfer of the suit property in favour of the plaintiffs by the deed of trust executed on 6.8.57 by the defendant no. 3 (Certificate Debtor) cannot be hit by S.8 of the Act and accordingly such transfer is not void under S. 8 of the Act. The materials in the record show that the plaintiff no.1 as trustee is in possession of the suit property. Plaintiff’s alleged right, title and possession in the suit property have been proved by the materials in the record. The suit property is therefore not liable to be put to auction sale in connection with the certificate case in question started against the Certificate Debtor (defendant no. 3). The plaintiffs are entitled to get the reliefs as claimed. The learned First Appellant Court has not been justified in dismissing the suit. 20. In the result, the appeal is allowed ex parte. The judgment and decree of dismissal as passed by the First Appellant Court are set aside, and the judgment and decree of the learned trial Court are confirmed in the light of the observation and findings in this judgment. We, however, make no order as to costs, both in the suit and appeal. Gobinda Chandra Chatterjee, J. I agree. Appeal allowed.