PRITHVI SINGH Vs. TIJI

JUDGEMENT

(1.) THIS is a revision application under sec. 10(2) Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S.D.O., Didwana dated 16-6-54, granting protection to the opposite party under sec. 7 of the Ordinance.

(2.) WE have heard the counsel appearing for the parties and have examined the record as well. The main contention raised on behalf of the applicant before us is that the opposite party glad a criminal complaint against the applicant in 1949 and was examined in connection therewith on oath; and in the course of that examination she had stated before a magistrate that she had relinquished her possession over the land dispute in Svt. 2002. The trial court according to the applicant, should have considered this aspect of the case held the application for reinstatement beyond limitation. On behalf of the opposite party it was replied that no steps were taken in the lower court to establish the identity of the person making the statement in question and hence it cannot be said that the statement was in fact actually made by her. Sec. 80 of the Indian Evidence Act lays down the law on the point as to whether there exists any presumption under this section as to the identity of the deponent. This section and the following passage may be quoted from the Law of Evidence by Monir at page 608. Sec. 80: - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any Officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume. That the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true and that such evidence, statement or confession was duly taken." Is there any presumption under sec. 80 as to the identity of the deponent or the confessor : - "The Privy Council has held that the heading of a deposition in which the name, age, residence etc. of the witness is stated is only descriptive of the witness and does not form part of the evidence given by him on solemn affirmation. A certified copy of the deposition of a witness or the confession of an accused person would not come in by itself ; it is necessary to adduce evidence proving the identity of the person who gave the evidence or made the confession. Under sec. 80 of the Evidence Act no presumption can be made regarding the identity of the deponent. When a person denies having made the statement contained in the deposition no presumption arises under sec. 80 of the Evidence Act of his having made the statement." "The correctness of the rule as stated above is open to doubt. If the rule were as stated above, it would be practically impossible to prove the identity of the deponent where the deposition was made before living memory, and cases are easily conceivable where no such evidence might be available. It has been held by the Oudh Court that the mere fact that there is no oral evidence to identify the deponent of a deposition made more than 60 years previously is not sufficient to render the provisions of sec. 80 of the Evidence Act inapplicable thereto. The presumption as to the identity of the deponent is, it is submitted, justified both by the reason and the language of sec. 80 as well as by sec. 114 of the Evidence Act, and this view is supported by authority. The Privy Council has held that the Court may under sec. 114 presume the identity of a person, who appears before a Sub-Registrar on the mere production of a registered document having an endorsement that that person appeared before him and admitted execution of the document. In law there is a strong presumption against fraud and impersonation, and it is submitted the identity of the deponent may be presumed on the principle of the Privy Council decision last cited. In any case, where the document containing the deposition is an old one, the court can turn to the deposition itself to find out whether there is inherent evidence of the identity of the deponent."