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Sheikh Fakir Mahomed Vs. Sheikh Uzir Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.320
AppellantSheikh Fakir Mahomed
RespondentSheikh Uzir Ali and ors.
Excerpt:
evidence art (i of 1872), sections 21 and 136 - previous deposition--identity of person--allowed to go in without objection--admissibility. - 1. this is an appeal on behalf of one sheikh fakir mahomed, who made an application in the court below to be declared an insolvent. the learned district judge rejected the application of the petitioner, and one of the reasons for his decision is that it is quite certain from the evidence of the applicant read with his previous deposition, ex. a, that he has an interest in a very large number of holdings in his own village.2. it is contended on behalf of the appellant that ex. a was not duly proved and does not touch the present case. what is pointed out is that ex. a was put to the petitioner in the court below, and he said with reference to it that he did not remember whether he had given evidence as a witness in the rent suit no. 25 of 1899, in the munsif's court at amta, he was asked.....
Judgment:

1. This is an appeal on behalf of one Sheikh Fakir Mahomed, who made an application in the Court below to be declared an insolvent. The learned District Judge rejected the application of the Petitioner, and one of the reasons for his decision is that it is quite certain from the evidence of the applicant read with his previous deposition, Ex. A, that he has an interest in a very large number of holdings in his own village.

2. It is contended on behalf of the Appellant that Ex. A was not duly proved and does not touch the present case. What is pointed out is that Ex. A was put to the Petitioner in the Court below, and he said with reference to it that he did not remember whether he had given evidence as a witness in the rent suit No. 25 of 1899, in the Munsif's Court at Amta, He was asked no further questions on the point, nor was any question put to the witness on behalf of the Respondent to show that the present Petitioner was the man who had been examined in that suit. Under these circumstances it is impossible for us to say that the deposition was given by the present Appellant in a previous litigation. The learned vakil for the Respondent suggested that Ex. A was allowed to go in without any objection. This may be practically true. Ex. A was allowed to go in as showing that a person of the name of Fakir Mahomed had been examined as a witness in a certain rent suit. But there is nothing to show that that Fakir Mahomed was the same person as the present Appellant, and that fact must be established by evidence before Ex. A can be used as evidence against him. As the case turns considerably upon Ex. A, we must set aside the decision of the District Judge and send back the case to him in order that Ex. A may be duly proved. The parties will be at liberty to adduce evidence upon this particular paint.

We make no order as to the costs of this Court.


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