Hari Prasad Sahu vs Ropna Kharia

Varma, J.—This is an appeal on behalf of the plaintiff who filed a suit against the defendant for damages and an injunction not to construct a bundh in the defendant''s plot No. 1580 in village Simdega. It came before the Subdivisional Officer Munsif of Simdega who dismissed the suit of the plaintiff after holding a local inspection.

The lower Appellate Court disposed of the appeal after referring to the case of both the parties in the following terms:

The main facts at issue are largely dependent on a knowledge of the locality and of the lie of the land. The Subdivisional Officer Munsif wisely held a local view. This local view appears decisive. He found that the respondent''s case was correct. The natural flow of the water was southeastward from the respondent''s land on to the appellant''s land. It was carried along the eastern boundary of plots 1583 and 1578 (appellant''s plot) by a deep nulla and so on to the appellant''s land. The water had been diverted northward along plot 1580 which naturally slopes upward from the south, and is on a much higher level than appellant''s plots 2259 and 2100. The respondent had only constructed a small bundh about the height of an ordinary ahl and this would not be sufficient to break the appellant''s ahl as alleged by him. The depth and strength of the south-eastward flow of the nulla was in itself sufficient to break the appellant''s ahl. On this finding of fact from the Subdivisional Officer Munsif''s personal view I agree that the appellant has no cause of action and dismiss the appeal.

From this it would be clear that the lower Appellate Court based its finding entirely upon the observations made by the learned Subdivisional Officer Munsif of Simdega and not upon the evidence adduced in the case. In fact, there is no discussion of any other evidence adduced in the case in the judgment of the lower Appellate Court.

The learned Munsif, although he refers to the number of witnesses examined on each side while disposing of Issues 3 and 4 which run as follows, "(3) Has the defendant constructed a new bund? (4) Is the damage caused to the plaintiff due to acts of persons other than the defendant?", has relied entirely upon his personal observations of the locality. Order 18, Rule 18 lays down clearly that the Court may, at any stage of the suit, inspect any property or thing concerning which any question may arise.

But a series of decisions have laid down that the observations by a Judge in the course of his local investigation cannot be substituted for the evidence of witnesses examined on the subject. It is obvious that in the case of a Judge''s observations the parties never get a chance of either cross-examining him on the various points raised or setting right his views if they are found to be erroneous. In Kessowji Issur v. G.I.P. Ry. Co. (1907) 31 Bom 381, their Lordships, of the Judicial Committee laid down clearly that it was not proper for a case to be decided "not on the testimony given at the trial as to what took place but by the Judges'' observation of what they saw".

Although this decision is dated earlier than the present Civil Procedure Code, the principle laid down therein has been followed by the Courts in India subsequent to the new enactment as will appear from the decision reported in Ahmad Sahib Shutari v. Magnesite Syndicate Limited AIR 1915 Mad. 1214 where this decision of their Lordships of the Judicial Committee was referred to and their Lordships of the Madras High Court remarked that:

The inspection which a Judge makes should be used by him only to test the accuracy of the evidence let in. He should not, without submitting himself to the test of cross-examination, make his knowledge the sole evidence for determining the question raised before him.

For other pronouncements on the subject reference may be made to Dawarka Prasad and Another Vs. Makhu Lal, Tirath Ram v. Muhammad Abdul Rahim Shah A.I.R.1923 Lah. 546 and Mahomad Ishaq v. Balmakund Lal AIR 1929 All. 116.

In these circumstances I have no option but to set aside the judgment and decree of the lower Appellate Court and remand the case to the lower Appellate Court to remit it to the trial Court to be disposed of in accordance with law. The lower Appellate Court should send this case for trial to some officer other than the one who originally tried the suit. As there is no appearance on behalf of the respondent, there will be no order for costs of this Court.