Law: Bengal Tenancy Act (VIII of 1885)

Section: 26-F,26-C

Law: Evidence Act (I of 2872)

Section: 114

Bengal Tenancy Act (VIII of 1885),   Ss. 26-F & 26-C-Notice under S. 26-C sent by post-Denial of receipt supported by material evidence-Held, sufficient rebuttal of legal presumption about service Positive evidence renders question of presumption immaterial-Court's duty to weigh and assess evidence led by parties-Evidence Act (1 of 1872); S. 114, illus. (f).   ORDER   MURSHED, J.--Petitioner made an application under section 26-F of the Bengal Tenancy Act to recover a land, which has been sold to a stranger, opposite-party before us, in respect of which he is a co-sharer.   Before the learned Munsif, who heard and disposed of the application, petitioner examined himself where he stated that he did not, in fact, receive the notice which was alleged to have been served by post upon him. The opposite-party examined himself. He has proved that in the three kabalas by which the lands in question were transferred, petitioner was mentioned as a co-sharer. He has also asserted that notice under section 26-C of the said Act was given to the petitioner. Necessary steps under section 26-C of the said Act were taken in so far as the Sub-Registrar, who registered the kabalas, was concerned. Opposite-party has also given evidence to the effect that he himself witnessed receipt of the notice by the petitioner. It would thus appear that complete evidence was led on behalf of both the parties in respect of their respective cases. Unfortunately, the case was decided by the learned Munsif on pure question of presumption relying on a decision of this Court in the case of Abdul Mannan Shek and another v. Lal Mamud alias Khan Mamud and others (P L D 1960 Dacca 467). Learned Munsif held that in the circumstances of the case there was a presumption of a service of notice and a mere denial of non-service was not sufficient to rebut the said presumption. He, therefore, dismissed the application.   Against the order passed by the learned Munsif petitioner preferred an appeal, which was heard and disposed of by the District Judge of Dacca. Learned District Judge also, in his turn, decided the appeal purely on the question of presumption as discussed by the…