Law: Bengal Tenancy Act, 1885

Section: S. 26-F

Law: Evidence Act, (1 of 1872)

Section: Ss. 92 & 115

(a) Bengal Tenancy Act (VIII of 1885)-----   ------- S. 26-F-East Bengal Non-Agricultural Tenancy Act (XXIII of 1949), S. 2 (4) (b) -Application of S. 26-F, Bengal Tenancy Act, 1885-First test is to see whether land is or is not non-agricultural as defined under East Bengal Non-Agricultural Tenancy Act, 1949.   Before the East Bengal Non-Agricultural Tenancy Act, 1949, in order to see whether a particular piece of land could be .a fit ` subject for pre-emption under section 26-F of the Bengal Tenancy Act, 1885, the primary test was to find out the original purpose of the tenancy. But after enactment of the East Bengal Non-Agricultural Tenancy Act, 1949 user of land, under section 2(4)(b) of that Act, has become a very important deciding factor and so it should first be considered whether the land in question is or is not a non-agricultural land liable to be excluded from the operation of the Bengal Tenancy Act, 1885.   (b) Evidence Act (I of 1872)------   ------ Ss. 92 & 115-Recitals in document-Purchaser not estopped from showing real nature of land by other evidence.   The principle of estoppel as enunciated in section 115 of the Evidence Act, 1872 cannot stand in the way' of the purchaser giving evidence other than that contained in sale deed to show the real nature and character of the land. The recitals in the docu ment are undoubtedly a kind of evidence but by themselves those recitals cannot estop the purchaser from giving other evidence.   Shiromani Prasad Bhakat and another v. Raghunandan Prasad Shaw and others 58 C W N 612 ; Ajay Kanta Poddar and another v. Sushila Sundari Poddar and others 47 C W N 149 and Kishori Mohan Pal v. Sudha Moyee A I R 1952 Cal. 353 ref. JUDGMENT   This rule is directed against an order of pre-eruption passed in favour of the applicant under section 26-F of the Bengal Tenancy Act. The opposite-party No. 1 Abdul Taher Bhuiyan made the application for pre-emption on the ground that he was a co-sharer tenant with respect to a raiyati holding bearing an annual jama of Rs. 11-12-0. He purchased a portion of the holding as early as 30th of March 1933 on the basis of a kabala Exh. 1 from…