1. A claim to Tatil Inarn lands consequent on the abolition of a Village Office, came for consideration before the Assistant Commissioner, Chikodi. The petitioner and respondent-1 were rival claimants, The Assistant Commissioner, by his order dated 16-7-1969, regranted the lands to respondent-I and rejected the claim of the petitioner, The copies of the order are said to have been dispatched to the parties on 29-7-1969, as per the entries in the Dispatch Register maintained in the Office. The petitioner, complaining the non-receipt of the copy, obtained a certified copy of the same and preferred an appeal before the District judge, Belgaum, on 5-1-1970. The learned judge dismissed the appeal one 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 pre-, presumption of due service under Section 114 of the Evidence Act on the basis of the entries in the Dispatch 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 prepresumption, at all, could be raised under Section 114 of the Evidence Act. He did not, however, dispute the correctness of the entries in the Dispatch Register. But, he said that mere entries in the Dispatch 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 Offend
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 dispatch by Registered 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 Law Rep 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 Section 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 Dispatch Register, has been delivered to or left with the person whose duty 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 He the ring ton v. Kemp (18154 Camp 193). Therein, the passage on the point reads:........ The plaintiff's evidence of sending a letter was that this letter was put down on a table, where, according to the usage of his counting-house, letters for the post were always, deposited; and that a porter carries them from thence to the post office. But the porter was not called, and there was no evidence as to what had be come of the letter after it was put down on the table.
On the above evidence, Lord Ellenborough held that more was necessary, and said:
Some evidence must be given that the letter was taken from the table in the counting-house, and put into the post office. Had you called the porter, and he had said that although he had no recollection of the letter in question, he invariably carried to the post office all the letters found upon the table, this might have done.'
These principles have been respectfully followed in Benarasi Debi v. New India Assurance Co. Ltd., : AIR1959Pat540 and in Bank of Bihar Ltd. v. Tata Scob Dealers pyntrolled Stock) Calcutta Ltd. : AIR1960Cal475 .
4.The precise evidence of nature, above referred to, is, evidently, lacking in the present case. It must be stated that mere entries in the Dispatch Register are not sufficient and do not connect the link that is so vital for raising the presumption of due service. The Appellate judge 0 therefore, in error in raising the presumption and dismissing the appeal on the ground of limitation.
5. In the view that I have taken ,it is unnecessary to express any opinion as to whether mere denial of receipt of the letter would rebut such presumption.
6. In the result, the rule is made absolute. The appellate order is quashed. The matter stands remitted to the Appellate judge for disposal of the appeal on merits and in accordance with law.
In the circumstances of the case, I make no order as to costs,
7. Rule made absolute.