1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 593 OF 2007 Gurudeo Timber Merchant .... Appellant (Org.Defendant) V/s. Shri Vijay Popatlal Shah .... Respondent (Org.Plaintiff) ..... Mr. Shailendra S.Kanetkar i/by G.S.Godbole for the appellant (in S.A.No.593 of 2007). Mr.A.A.Kumbhakoni i/by T.D.Deshmukh, for respondent no.1. ..... CORAM : J.H.BHATIA, J. DATE : 4th September, 2009. P.C. 1 Heard the learned counsel for the parties. 2 The plaintiff-respondent claimed to have purchased 1/3 rd share from the legal heirs of Laxman Kulkarni in the suit land bearing Survey No. 567, 568 and 569 situated at village Chakan, Taluka  Khed, District Pune under the registered sale deed dated 25 th April 1997. He claimed that he had purchase remaining 2/3 rd share in the said property from the its owners Bhalchandra Gopal Joshi and Shripad Krushnaji Joshi under registered sale deed dated 10 th 2 July 1998. The defendant-appellant was in possession of the land as a tenant of the erstwhile owners. He had taken the same on lease for carrying out business of timber. The plaintiff claimed that the defendant had not paid the rent since 1 st August 1998. On 1 st December 1998, the plaintiff issued a notice to the defendant terminating the tenancy and also to pay arrears of rent. However, that notice was returned by the Post Office with remark : not claimed . According to him, thereafter, he issued second notice dated 12 th March 1999 to the defendant terminating tenancy with the end of the month following the receipt of the notice. As the first notice was not claimed by the defendant, as a precaution, second time, he issued notice by Registered Post A.D. as well as under Certificate of posting. The notice sent under the Certificate of Posting was received by the defendant, but the notice sent by the R.P.A.D. was returned by the Post Office with an endorsement  refused . The plaintiff, thereafter, filed Regular Civil Suit No. 137 of 1999 on 4 th August 1999 for eviction and possession and for arrears of rent. 3 3 The defendant disputed the relationship of landlord and tenant and also disputed that any valid notice was issued terminating the tenancy. According to him, 1/3 rd part of the property was purchased by his brother Purushottam Dahyabhai Patel from its owner Shripad Joshi. 4 The Trial Court rejected the contentions of the defendant and held that the plaintiff is the owner of the property and landlord of the defendant. The Trial Court also held that the tenancy was lawfully terminated. Thus, the suit was decreed. The defendant preferred Civil Appeal No. 736 of 2005 before the District Court. That appeal was also dismissed, hence the Second Appeal. 5 There are concurrent findings of the facts by both the Courts below that the plaintiff-respondent is the owner of the suit property and that he is landlord of the defendant. Both the Courts held that service of the notice was proper and in spite of service of notice, the defendant had failed to vacate the land. 6 The learned counsel for the defendant-appellant mainly pressed three points. Firstly, it was to year 4 to year tenancy and therefore, it is necessary to issue minimum six months notice under Section 106 of the Transfer of Property Act. Secondly, there is no material to show that notice was duly served or that the defendant had refused to accept the notice. Thirdly, he contended that plaintiff did not have title over the complete property because the sale deed dated 30the September 1997 was executed in favour of Purushottam Patel and without joining him as party that the suit for eviction could not be tenable. 7 The objection about the tenability of the suit for want of joining the necessary party may be taken first. It may be noted that Purushottam Patel claimed to have purchased 1/3 rd share in the suit property from Shripad Joshi under the registered sale deed dated 30 th September 1997. That sale deed was challenged by plaintiffs Vijay Shah and Shripad Joshi by filing Regular Civil Suit No.195 of 1999. That suit was decreed. Appeal filed against that judgment was dismissed. Second Appeal No. 651 of 2008 filed by his L.Rs. is also dismissed by this Court today. It has been held that the sale deed dated 30 th 5 September 1997 was forged and fabricated document. It was never executed by Shripad Joshi. In view of this finding and the declaration given in favour of the plaintiff, it is clear that the said sale deed, which was forged and fabricated, did not give any title over the property to Purushottam Patel. The present respondent-Vijay Shaha, who has purchased whole of the property under two sale deeds dated 25 th April 1997 and 10 th July 1998 is the owner of the complete suit property. It was not necessary for him to join Purushottam Patel as a party in the eviction suit. Instead of that he filed a suit against him for declaration that the sale deed in his favour was forged and fabricated and he has been successful in that. Therefore, the objection about the tenability of the suit is without any basis. 8 Second objection is about the yearly Tenancy and period of notice. It is pointed out that even though the lease deed purported to be year to year that document was never registered under Section 17 of the Registration Act. Any lease deed of immovable property from year to year can be made only by registered instrument and all other leases may be 6 made either by registered instrument or oral agreement as per Section 107 of the Transfer of Property Act. As the lease deed was not registered, it could not be treated as year to year lease. It is material to note that before the appellate court, the learned counsel for the appellant had not pressed this point and it has been specifically noted by the appellate court. Once this point is not pressed before the first appellate court, the appellant cannot be allowed to raise the very question in the second appeal. 9 The record reveals that even though the first notice was returned as  not claimed , the plaintiff issued second notice by R.P.A.D. as well as under certificate of posting. There is no dispute that the address of the defendant-appellant on all of the notices were correct. When the notice sent under certificate of postings has not been returned back, it could be presumed that the notice was received by the addressee. The Postal Authority returned the notice sent by R.P.A.D., as refused by the addressee. There is a presumption that the Postal Authority had acted as per law and the endorsement 7 made by the Postal Authority is also correct. If the addressee refused to accept the notice, it can presumed that the notice has been duly served and he was aware about the contents of the same. It is also material to note that the defendant in the cross examination admitted that notice was issued to him but he denied that he had refused to accept the same. Taking into consideration, the circumstance, it was rightly held by the courts below that the notice was properly served on the defendants. The suit for eviction was filed long after expiry of the period of notice. 10 In view of the facts and the points raised by the learned counsel for the defendant/appellant, I find no question of law involved in the present appeal. I do not see any illegality or perversity in the findings in the final order passed by the courts below. 11 In the result, the appeal stands dismissed. 12 At this stage the learned counsel for the appellant seeks stay to the execution of decree for four weeks. The request is opposed by Mr.Kumbhakoni, learned counsel for the plaintiff-respondent. 8 However, taking into consideration the fact that litigation is going on for last about ten years, the execution of decree shall remain stayed for further four weeks from this date subject to the condition that the appellant shall not create any third party interest and shall not part with the possession of the suit land. 13 As appeal itself is dismissed, the Civil Application Nos. 1086 of 2007 and 1798 of 2007 do not survive and stand disposed of accordingly. (J.H.BHATIA, J.)