JUDGMENT & ORDER : Prasanta Kumar Deka, J. Heard Ms. R. Choudhury, learned counsel appearing on behalf of the appellants and Mr. S. Banik, learned counsel appearing on behalf of the respondents. 2. The appellants are the plaintiffs and the respondents are the defendant in Title Suit No. 86/1999, which was filed in the Court of the then the Civil Judge, (Junior Division) No. 1, Silchar. The case of the plaintiffs/appellants is that they become the owners of the suit land after the death of their predecessor Abdul Matlib Majarbhuiya. One Achab Ali, the predecessor of defendant/respondents was a tenant over the suit land, which is a bhit land along with 3 Kathas of other land under the predecessor of the plaintiff/appellants on the condition of paying an annual rent of Rs. 20.00 according to Bengali calendar year. Achab Ali, accordingly occupied the land by constructing houses. Later on, an area of 3 Kathas of land from the western boundary was acquired by the Government. The defendant/respondents were irregular in payment of the rent and as such the predecessor of plaintiff/appellant filed an eviction suit being Title Suit No. 107/1972 against the predecessor of the defendant/respondents for eviction on the ground of defaulter and bona fide requirements. The said suit was decreed in the Trial Court and the same was affirmed by the First Appellate Court in Title Appeal No. 12/75. The Second Appeal No. 165/1984 was preferred by the predecessor of the defendant/respondents before this Court against the Judgement and the decree dated 27/08/1984 passed in Title Appeal No. 12/75. This Court dismissed the appeal on the technical ground of non-service of legal notice as required U/s 106 of the T.P. Act, 1882 upon the respondents/predecessor-in-interest. The plaintiff/appellants thereafter issued afresh and served ejectment notice upon the predecessor of defendant/respondents on 08/06/1998 by way of registered post asking him to vacate the suit land and deliver khas possession of the same to the plaintiff/appellants within a fixed time. But the predecessor of the defendant/respondents failed to vacate and deliver the suit land in spite of receipt of notice by Achab Ali and hence the plaintiff/appellant's filed this Title Suit No. 86/1999 for eviction of the defendant/respondents' predecessor-in-interest who died subsequent to the issuance and receipt of the notice by him, (Achab Ali) and on his death against his legal heirs, the defendant/respondents. 3. 3. The defendant/respondents being the heirs of Achab Ali contested the suit and submitted written statement. The defendant/respondents took the defence that the suit was bad for want of notice as required under the T.P. Act. The same was barred under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955. It is the case of the defendant/respondents that their predecessor, Achab Ali had been possessing the 2 Bigha 2 Katha 11 Lecha of land in holding described in the Schedule of the written statement which comprises land of different patta including the suit land and paying annual rent of Rs. 20/-. They never paid any separate rent for the suit land as the suit land does not make a separate holding. Achab Ali, the predecessor in interest of the defendant/respondents constructed permanent structures, acquired permanent, heritable, transferable and non-evictable tenancy right over the land as stipulated under the Assam Non-Agriculture Urban Tenancy Act, 1955. It was also pleaded that the suit was not maintainable as the same was filed only for a part of a holding leaving aside the total land holding under the tenancy. As such the suit was liable to be dismissed. 4. Upon the pleadings of the parties to the suit the following issues were framed:- (a) Is there any cause of action for filing the suit? (b) Whether the suit is maintainable? (c) Whether the suit is barred by the principle of Res-judicata? (d) Whether the suit is bad for non-service of notice, as provided under the Transfer of Property Act? (e) Whether the suit is barred under the Assam Non-Agricultural Urban Areas Tenancy Act? (f) Whether the suit is bad for non-joinder of necessary party? (g) Whether the suit land has been properly described and identifiable? (h) Whether the defendants acquired any non-ejectable tenancy right over the suit schedule property? (i) To what relief, if any, the plaintiffs are entitled? 5. Both the plaintiff and the defendant sides examined 2 (two) witnesses each along with documents in support of their respective claims. 6. After hearing the parties, the learned Trial Court vide judgment and decree dated 24/12/2002 and 09/01/2003 respectively, dismissed the Title Suit No. 86/1999. Subsequent to that, the plaintiff/appellant preferred the Title Appeal No. 5/2003 in the learned Court of Civil Judge, (Senior Division) at Silchar. 6. After hearing the parties, the learned Trial Court vide judgment and decree dated 24/12/2002 and 09/01/2003 respectively, dismissed the Title Suit No. 86/1999. Subsequent to that, the plaintiff/appellant preferred the Title Appeal No. 5/2003 in the learned Court of Civil Judge, (Senior Division) at Silchar. The learned First Appellate Court on hearing the parties to the present appeal dismissed the appeal vide judgment and decree dated 22/06/2004 and 29/06/2004 respectively. 7. Being aggrieved the plaintiff/appellant has preferred this Second Appeal against the said judgment and decree passed in Title Appeal No. 5/2003. This Second Appeal was admitted on the following substantial questions of law:- (1) Whether the non-compliance of the provisions of Order 41, Rule 31 CPC will render the impugned judgment and decree illegal. (2) Whether, on the facts and circumstances of this case, service of notice can be said to have been legally served upon the respondents in terms of the provisions of Order 5, Rule 9 & 15 CPC. 8. Ms. R. Chourdhury, learned counsel appearing on behalf of the appellant submits that she would not press the substantial question of law: No.1. Rather she would press the substantial question No.2 and another with regard to perversity in the findings of both the Courts below so far receipt of the eviction notice under the T.P. Act, 1882 by the said late Achab Ali. On this point the learned counsel of the respondents submit that as the findings of both the Court below are concurrent in nature so this Court as the second appellate Court cannot enter into the evidence and arrive at a finding other than the concluded fact by the First Appellate Court. Considered the submissions of both the learned counsels. In Union of India v. Ibrahimuddin and another as reported in (2012) 8 SCC 148 , the Hon'ble Apex Court held as follows:- "70. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though High Court is bound to act with circumspection while exercising such jurisdiction. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though High Court is bound to act with circumspection while exercising such jurisdiction. In Second Appeal the Court frames the substantial question of law at the time of admission of the appeal and the Court is required to enter all the said questions unless the appeal is finally decided on one or two of these questions or the Court comes to the conclusion that question framed could not be the substantial question (S) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal." Keeping the observation of the Hon'ble Apex Court in mind, this Court feels that the first appellate Court finding the same for point for determination took up the issue of service of notice as required u/s 106 of T.P. Act which is mandatory in nature for a tenancy governed by the T.P. Act 1882 and arrived at a finding against the appellant/plaintiff. For the said reason the additional substantial question of law number 3 is framed as follows:- "Q 3. Whether the finding that the notice as required under the T.P. Act for eviction of a tenant was not duly served on Achab Ali and whether the same amounts to non service even if the same was posted duly under Registered post with acknowledgement due though presumption can be drawn to that effect u/s 27 of the General Clauses Act?" 9. Ms. R. Choudhury submits that the finding of the First Appellate Court that from the records, it revealed that the plaintiff/appellant failed to serve statutory notice on Achab Ali, the predecessor of the respondent is wrong. Ms. Choudhury submits that the findings of the First Appellate Court with regard to the so called anomalies in exhibit-10 (C), the delivery Postal record on the basis of the evidence on record of PW-2, the Postal peon is totally perverse. The examination of the exhibit-10 and the over writing on the figure "6" and the subsequent finding that the date "10/06/1998" under the signature of Achab Ali in exhibit-10 (B) was written later on cannot be accepted if the evidence is gone through. The examination of the exhibit-10 and the over writing on the figure "6" and the subsequent finding that the date "10/06/1998" under the signature of Achab Ali in exhibit-10 (B) was written later on cannot be accepted if the evidence is gone through. The admission on the part of PW-2 (Postal Peon) to the fact that the page of exhibit-10 is not in serial to the next page which is for 10/05/1998 and the defacing of the same are absolutely perverse and on the basis of the said perversity, the appreciation of the evidence on record and the subsequent presumption drawn that the legal notice, exhibit-5 was not properly served on Achab Ali cannot be accepted. So, Ms. Choudhury submits that the findings of the learned First Appellate Court and the Trial Court are liable to be set aside on the ground of perversity. Ms. Choudhury submits that for proper guidance of the Courts below Order 5 Rules 9 (3) and 9 (5) of the CPC had been the best recourse in order to examine about the receipt of the notice for eviction by Achab Ali. 10. Mr. S. Banik, learned counsel appearing on behalf of the respondents submit that the learned courts below, more specifically the First Appellate Court has minutely scrutinized the piece of the evidence brought on record by the plaintiff/appellants in order to prove the receipt of the notice by Achab Ali. On scrutiny, the courts below had rightly arrived that there were manipulations in the documents exhibited by the Postal Department, which are very much a part forming the exhibit- 10 (A), 10 (C) and 10 (B). So the First Appellate Court has rightly came to the conclusion that the notice dated 10/6/1988 was never received nor served on Achab Ali. The findings arrived at by the First Appellate Court is a correct finding and the same cannot be dislodged in this Second Appeal, and as such there is no such substantial question of law so far perversity is concerned or anything other than the perversity. Substantial question No. 2 "Whether, on the facts and circumstances of this case, service of notice can be said to have been legally served upon the respondents in terms of the provisions of Order 5, Rule 9 & 15 CPC. 11. Substantial question No. 2 "Whether, on the facts and circumstances of this case, service of notice can be said to have been legally served upon the respondents in terms of the provisions of Order 5, Rule 9 & 15 CPC. 11. Order 5, Rule 9 Sub Rule (3) Sub Rule (5) of the CPC are reproduced herein below:- (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. 12. From Order 5, Rule 9 (3), it is clear and apparent that the same stipulates the manner in which summons may be served by way of Registered post acknowledgment due addressed to the defendant. 12. From Order 5, Rule 9 (3), it is clear and apparent that the same stipulates the manner in which summons may be served by way of Registered post acknowledgment due addressed to the defendant. Similarly, Order 5, Rule 9 (5), stipulates that in the event of refusal by the defendant or his agent to receive any postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee, the Court issuing the summons have the jurisdiction to declare that the summons were duly served on the defendant subject to the said summons were properly addressed, pre-paid and duly send by Registered post with A/D. But this is a case in which it is the notice required U/s 106 of the T.P. Act to be proved that the defendant had received the said notice terminating the tenancy. So, the question raised is not at all a substantial question of law insofar as the facts and circumstance of the case are concerned inasmuch as the aforesaid provisions had stipulated certain rules the manner by which services of summons in a particular proceeding on a person can be concluded. But the point so determined by the Courts below in the suit between parties is a question of fact relevant in adjudicating the dispute between the parties which requires strict proof within the ambit and scope of the Indian Evidence Act, 1872. So the said substantial question of law has no bearing in deciding the claim of the parties to the suit. Q. 3 Whether the finding that the notice as required under the T.P. Act for eviction of a tenant was not duly served on Achab Ali and whether the same amounts to non service even if the same was posted duly under Registered post with acknowledgement due though presumption can be drawn to that effect under the General Clauses Act? 13. 13. In Green View Radio Service v. Laxmibai Ramji and Another reported in (1990) 4 SCC 497 , the Hon'ble Apex Court held that In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiff's advocate by registered post acknowledgment due. The acknowledgment signed by the party was received by the advocate of the plaintiff. Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post. 14. In Anil Kumar v. Nanak Chandra Verma reported in AIR 1990 SC 1215 , the Hon'ble Apex Court held as follows:- "2. The question considered in both the decisions was to the statement on oath by the tenant denying the tender and refusal to accept delivery. 14. In Anil Kumar v. Nanak Chandra Verma reported in AIR 1990 SC 1215 , the Hon'ble Apex Court held as follows:- "2. The question considered in both the decisions was to the statement on oath by the tenant denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant was sufficient to rebut the presumption of service. In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden." 15. In the case reported in 1990 SCC 497 , it was held that the provisions of Section 106 of the T.P. Act requires that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members at his residence and the services is complete with the notice sent by post. The said presumption of service of a letter send by registered post can be rebutted by the addressee defendant by appearing as witness and stating that he never received such letter and under such circumstances, the burden would lie on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral and documentary evidence to prove service of such letter on the addressee defendant. 16. On the other hand, the Hon'ble Apex Court in the decision reported in AIR 1990 SC 1215 decided that with respect to services of notice U/s 106 of the T.P. Act the unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is unreliable the position is different. It was also held that the question of presumption of service of notice is always a question of fact. 17. It was also held that the question of presumption of service of notice is always a question of fact. 17. In the present case in hand as against the plea of the plaintiff/appellant that the Registered letter No. 6322 of Silchar Head Post office dated 08/06/1988 was received by Achab Ali on 10/06/1988 it was specifically denied by the defendant/respondent by pleading in the written statement that no notice was served upon the respondent and as such the suit of the plaintiff for eviction was not maintainable without service of eviction notice on the said Achab Ali. The DW-1, Mannan Ali Mazumdar, (defendant No. 2) in his cross examination specifically denied the suggestion that his father on 10/06/1988 accepted and received the eviction notice. Under such circumstances, the presumption under the General Clauses Act that the eviction notice which was sent as per the postal receipt was received by Late Achab Ali cannot be taken into consideration. Accordingly, the plaintiff/respondents examined the PW-2, one Paritosh Chandra Deb who was the postal peon serving at Tarapur Part-VII Sub-Postal office since 01/08/2000. Through him the plaintiff/appellant exhibited exhibit-10 in order to show that the registered notice under Registered letter (RL) No. 6322 was received by Late Achab Ali 10/06/1988. This Court verified the said record purportedly showing that the aforesaid Registered letter was received by Achab Ali on 10/06/1988 and the said page has been marked as exhibit-10 (A). From the perusal of the exhibit-10 (A), it is apparent that there is overwriting in the figure "6" showing the date 10/06/1988 both on exhibit-10 (A) and the date mentioned under the signature of Achab Ali therein. However, exhibit-8 is a certificate issued by the Senior Post Master, certifying that the said registered letter No. 6322 dated 08/06/1988 was delivered to the addressee on 10/06/1988. But the said Senior Post Master who issued the certificate was never called as witness to the witness box in order to prove the contents of the certificate exhibit-8 and the basis on which the certificate exhibit-8 was issued. The PW-2 in his cross-examination deposed as follows:- "The said overwriting appears in exhibit-10 (A). Overwriting in figure "6" also appears in exhibit-10 (B). The book in which exhibit-10 is there, pages are maintained as per serial of date. It is a fact that after the page for exhibit-10, next page is for 10/05/1988. The PW-2 in his cross-examination deposed as follows:- "The said overwriting appears in exhibit-10 (A). Overwriting in figure "6" also appears in exhibit-10 (B). The book in which exhibit-10 is there, pages are maintained as per serial of date. It is a fact that after the page for exhibit-10, next page is for 10/05/1988. We write all pages of the said Register in two copies - one of which is original and the other is a carbon copy. Exhibit-10 (C) is the carbon copy of the exhibit-10. It is a fact that in exhibit-10 (C) below the name of Achab Ali there is no date. There is no practise of obtaining signature and date on the carbon copy. In between the pages of dates 10/06/1988 and 10/05/1988, some pages are torn and removed." 18. From the said deposition, it is clear that it has been admitted that exhibit-10 (C) is the carbon copy of exhibit-10 and as per his deposition there is no practise of obtaining signature and date on carbon copy. But from exhibit-10 (C) it is apparent that the name of Achab Ali is very much there including the signature. Further from the deposition of PW-2, the book in which exhibit-10 exists its page and other pages are maintained in serial that too as per date. However from the exhibits, it is found that page for exhibit-10, which is purportedly shown to be dated 10/06/1988, the next page is dated 10/05/1988. This brings a preponderance that ext-10 is dated 10/05/1998 or the date subsequent to it was wrongly written. But no evidence is there in that aspect. 19. Considering the same and scrutinizing the evidence on record this court finds that the learned First Appellate Court has rightly appreciated the evidence on record and came to the finding that no notice as required U/s 106 of the T.P. Act was served on Achab Ali inasmuch as the evidence led by the plaintiff/appellants through the postal officials never inspire confidence to bring home the presumption that the notice was received by Achab Ali, the predecessor of the respondent/defendants same being registered with A/D as per postal receipt which is exhibited duly. 20. 20. In order to show that there crept in perversity in findings of the courts below as per the submission of the learned counsel of the appellant/plaintiff it would have been necessary to show on the part of the appellant/plaintiff that perversity lies in a specific finding of both the courts below. But on the scrutinity of the evidence and the exhibits relied by the plaintiff/appellants with regard to service of the notice for eviction on the said Achab Ali this Court do not find any perversity in appreciation of evidence by the Courts below. Accordingly, this substantial question of law is decided in the negative. 21. This Second Appeal is accordingly dismissed on contest. No costs. Send back the LCR.