P L D 1965 Dacca 53 (PLP)

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 learned Munsif and he thus dismissed the appeal and affirmed the judgment and order passed by the learned Munsif. Against the judgments and orders passed by the aforesaid Courts petitioner moved this Court in its revisional jurisdiction and obtained the present Rule. At the hearing of the rule Mr. R. K, Banik, who appeared in support of the Rule, has contended that the learned Courts below misdirected themselves in saying that a denial of service is not sufficient in law to amount to a rebuttal of the presumption of service of the notice which is raised in favour of the opposite party. We think that this contention must be upheld because the evidence of the opposite‑party is to the effect that he did not, in fact, receive the notice, which would amount to a rebuttal of the presumption indicated above. As we have indicated above, in the case before us the best possible material evidence has been led by both parties. So far as the petitioner is concerned, he could only prove non‑service of notice by giving evidence to the effect that, in fact, it was not so served upon him and that he did not receive the same which is alleged to have been served upon him. On behalf of the opposite party there is evidence to show that the requirements o section 26‑C of the said Act were fulfilled which raised a presumption in his favour that the notice was served and over and above this, there was positive evidence to the effect that the witness (namely, the opposite‑party) had himself seen that the said notice was served on the petitioner. In a circum stance like this it is the duty of the Court to weigh and assess the evidence as led by the parties. It is not a case dependent for its decision on mere question of legal presumption that is raised by the circumstance of the case. In the face of positive evidence led by the parties, the question of presumption becomes almost immaterial. Similarly, the question of onus is also a mere academic question of no practical importance i n a situation like this. Mr. P. K. De, learned Advocate for the opposite‑party, has contended that both the Courts below have misdirected themselves in the manner in which they disposed of the case. Before them there was enough material on record which would support the conclusion at which they arrived. He has, therefore, urged that, instead of remanding this case to the appellate Court below for re‑hearing of the appeal, the points in issue should be decided by this Court when the records are sufficient to dispose of the case. In view of the back ground of this case, we think that the course suggested by the learned Advocate for the opposite‑party is one, which should be followed in the present case. The sales giving rise to the application under section 26‑F of the said Act took place about 9 years ago, i.e., in the year 1955. The application of the petitioner was marked as Miscellaneous Case No. 65 of 1960. The appeal preferred by the petitioner was disposed of in November 1960, and we are hearing the rule obtained by the petitioner today in 1964. We think that it would not be proper to waste any further time in this case in view of the fact that the evidence on record is sufficient to dispose of the same. The petitioner and opposite‑party are close neighbors in a village. The lands involved in the application are practically under the very nose of the petitioner. According to his admis sion, it is in the neighbourhood of his homestead. In cross- examination petitioner admitted that the opposite‑party was possessing the lands ever since he purchased the same. He further admitted that opposite‑party was a close neighbor of his. In these circumstances, it is highly improbable that the petitioner would not be aware of the transaction and it .is difficult to place any reliance on the evidence of petitioner, which is nothing more than his own ipse dixit that he did not receive the notice. Opposite‑party has proved that he has complied with the requisites as required by section 26‑C of the said Act. This, therefore, raises a presumption that the notice was sent to the petitioner as required by law. In this context the positive evidence of the opposite‑party to the effect that he had witnessed the service of notice clinches the matter. . The admission of the petitioner that opposite‑party is a close neighbour of his makes it probable that opposite‑party has witnessed the service. There is, therefore, no good reason not to believe the evidence of opposite party when it receives support from the circumstances of the case in the light of probabilities. Learned Advocate for the petitioner has repeatedly urged that opposite‑party is an interested witness. True, but the same may be said of the petitioner himself. Therefore, the best thing to do under the circumstances is to obtain light from the proba bilities of the case and we have done so. The position, therefore, comes to this that, on an appraisal of evidence in this case, we find that the conclusion arrived at by the Courts below is correct although their approach to the case was not a proper one. We are, therefore, of opinion that the petitioner has failed to make out a case calling for an interference by this Court with the orders that have been passed by the Courts below. The result, therefore, is, that the rule is discharged without any order as to costs. A. SUBHAN CHOWDHURY, J.‑I agree. K. B. A. Rule discharged.