JAVANA Vs. BHAIRAYA

JUDGEMENT

(1.) THIS is a revision application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance,1949, against an order of the S. D. O. Didwana, dated 14. 6. 54 granting protection to the opposite party under sec. 7 of the Ordinance.

(2.) WE have heard the counsel for the parties and have also examined the record of the case. WE have no hesitation in holding that the learned lower court has failed to appreciate the evidence in a right perspective and consequently the findings arrived at by it are manifestly absurd and perverse. The opposite party claimed reinstatement on the ground that he had been dispossessed wrongfully from the holding in dispute within three months prior to the presentation of the application. The applicant resisted this claim on the plea that the opposite party relinquished his tenancy a number of years ago and since then the land has continuously been in his possession. It is interesting to note that the parcha chakbandi was first itsued by the Settlement Department in the name of the opposite party but on objections being raised by the applicant the same was cancelled and a fresh one was granted in favour of the applicant. The opposite party has, however, stated that an appeal has been preferred by him against this decision which is still pending. The lower court, considering that the matter has not been decided as yet finally, refused to place any reliance upon this parcha chakbandi and we too find ourselves in agreement with this view. The case has, therefore, to be examined in the light of the other evidence led by the parties. The applicants' statement deserves to be examined first. During the course of cross-examination he was confronted with a previous deposition made by him before the Settlement Officer on 16 9-50 wherein it was stated by him that he had relinquished the land in dispute six years ago and had settled down in village Akoda where he had taken other land for cultivation. The only explanation offered by Bharu, opposite party, for this grave inconsistency was that he did not remember having ever made such a statement. Shabdi Khan, witness of the opposite party, was also confronted with his previous deposition wherein the had stated that Bharu gave up the land in dispute long before the paimayash which took place in Svt. 2001-2. The record of the lower court shows that on being confronted with this statement the witness almost lost his senses and started perspiring profusely and the recording of the statement had to be postponed to the next day. The only thing he could state on the adjourned hearing was that he did not remember as to whether any such statement was made by him or not. Similarly another witness Kalusingh was confronted with a previous statement inconsistent with the one recorded in the lower court. He too denied having made the previous deposition. In the statements recorded before the lower court all these three persons had stated that Bharu was dispossessed within three months of the application for reinstatement. In the three previous statements with which they were confronted they had clearly stated that Bharu had relinquished his land before Svt. 2001. The learned counsel for the opposite party has argued before us that these previous depositions are inadmissible, as the presiding officer who recorded their statements was not examined. WE cannot subscribe to this view. The previous depositions were confronted to the witnesses in the manner prescribed in Sec. 145 of the Indian Evidence Act. It lays down that a witness may be cross-examined as to previous statements reduced in writing and if it is intended to contradict him by the writing his attention must, before the writing is proved, be called to those parts of the statements which are to be used for the purpose of contradicting him. In the present case, it is clear from the record that all the witnesses were duly confronted with the portions of the previous statements with which they were intended to be contradicted. Those portions were duly read out to them from the certified copies of the depositions. As laid down in Sec. 74 of the Indian Evidence Act statements recorded by public officers come within the purview of public documents and as laid down in Sec. 77 certified copies thereof may be produced in proof of the contents of the public documents. This is what was exactly done in the case. It is true that previous depositions are not substantive evidence but they can shatter the evidentiary value of the subsequent depositions which run counter to them. In the present case we find that the opposite party claimed reinstatement on the basis of his wrongful dispossession within three months before the presentation of application i. e. 22. 8. 51. It was stated by him that he had been in continuous possession of the land in dispute since long. In 1950 he had made a statement along with his two other witnesses Shhabdikhan and Kalusingh, wherein it was stated that he had voluntarily given up the land prior to Svt. 2001 i. e. 4 or 5 years prior to the presentation of the application. This irreconcilable discrepancy completely impeaches their credibility. The application presented by the opposite party before the lower court, therefore, does not stand proved. WE would, therefore, allow this revision, set aside the order of the lower court and direct that the application for reinstatement presented before it shall stand rejected. .