KALLAWWA Vs. TAMANNA MURARI PATIL

JUDGEMENT

(1.) A claim to 'Patilki' Inam lands consequent on the abolition of a Village Office, came for consideration before the Asst Commissioner, Chikodi. The petitioner and respondent 1 were rival claimants. The Asst Commr, by his order dt. 16-7-1969, re-granted the lands to respondent 1 and rejected the claim of the petitioner. The copies of the order are said to have been despatched to the parties on 29-7-1969, as per the entries in the Despatch Register maintained in the Office. The petitioner, complaining the non- receipt of the copy, obtained a certified copy of the same and preferred an atipeal before the Dist Judge, Belgaum, on 5-1-1970. The learned Judge dismissed the appeal on the ground that it was preferred after 90 days from the date of the order and also from the date of its service to the petitioner. The learned Judge has raised a presumption of due service under S.114 of the Evidence Act on the basis of the entries in the Despatch Register

(2.) Challenging the validity of that conclusion, Mr. N. A. Mandagi, learned. Counsel for the petitioner, submitted before me that on the facts proved, in the instant case, no presumption, at all, could be raised under .114 of the Evidence Act. He did not, however, dispute the correctness of the entries in the Despatch Register. But, he said that mere entries in the Despatch Register are not, by themselves, sufficient to raise a presumption of due service, in the absence of an affidavit or any evidence to show that the letters, referred to therein, have reached the Post Office.

(3.) The proposition about which there can be no dispute is this: When it is proved that a letter addressed to the addressee has been handed over to the Post Office, a presumption could be raised that it has been delivered to the addressee and it is not necessary that there should be a despatch by Kegistered Post or under a Certificate of Posting before there could be an appeal to that presumption. (See G. H. Sridevi v. State of Mysore, (1969) 19 LR. 415.). One could have raised such presumption, in this case, provided the letter is shown to have been handed over to or left with the person whose duty it was, in the ordinary course of business, to carry it to the Post Office, Such presumption could be raised under S.114, Illustration(f), which states that the Court may presume that the common course of business has been followed in particular cases. But, there could be no presumption that a letter addressed to a person, as recorded in the Despatch Register, has been delivered to or leit with the person whose duty it was to carry it to the Post Office. That is a fact which has to be proved by affidavit or other evidence. In this context, I may refer to an ancient authority. In Skilbeck v, Garbett (1845) 7 QB. 846. a reference is made to the decision in Nethenngton v. Kemp (1815) 4 Camp 193. Therein, the passage on the point reads :