Roop Singh and Others vs Parma Nand and Another

Kamlesh Sharma, J.—In this Regular Second Appeal, Sh. Roop Singh and Ors. Defendants- Appellants, have challenged the decree and judgment dated 29-5-1990 of District Judge, Solan, whereby the decree and judgment dated 29-5-1990 (sic) of Sub Judge, Kandaghat, was affirmed. The Sub Judge, Kandaghat, had decreed the suit of Sh. Parma Nand, Plaintiff-Respondent, for permanent prohibitory injunction restraining Sh. Roop Singh and Ors. from interfering in the rights of Sh. Parma Nand over the Kuhal Bawra Ka Hall and also for mandatory injunction directing them to restore the original position regarding the use of water for irrigation purposes.

Sh. Bhupender Gupta, learned Counsel for the Appellants, at the very outset, has pointed out that the finding of the District Judge are vitiated because he has decided the appeal solely on the basis of spot inspection report without taking into account the evidence of the parties. After going through the judgment of the District Judge, the records and hearing the learned Counsel for the parties, I am of the view that the contention of Sh. Bhupender Gupta holds good and the judgment of the District Judge deserves to be set aside on this ground alone. The District Judge has entirely relied upon his inspection report, Mark P-Y, and the map, Mark P-X, prepared by him at the spot. He has rejected the case of Sh. Roop Singh and others on the basis of his personal observations stated in his inspection-report. He has not referred to the evidence of the parties at all. There is no document Nakal Naksha Kuhal Bawra Ka Hall, Ex. PP-2, on record as referred to by the District Judge in para 10 of his judgment. Ex.P-2 is a copy of the Jamabandi for the year 1973-74 pertaining to Khasra No. 613 and the name of Sh. Parma Nand does not figure amongst the names of owners mentioned therein. It clearly establishes that the District Judge did not care to examine the evidence on record and based his conclusion solely on his personal local inspection.

By now, it is well settled that the purpose of empowering the Court to inspect any property or thing is to enable it to understand and appreciate the evidence on record for deciding the point in issue. This power is not given to enable the court to solely or wholly base its conclusion on its observations during the spot inspection without referring to the evidence on record. If the Court is permitted to substitute its observations made during the spot inspection by the evidence on record, the Judge himself would become a witness and the party against whom he has made observations or the Inspection report, would have no opportunity to cross-examine him. Such an interpretation of Order 18 Rule of the CPC will destroy the very basis of our legal system.

For the above interpretation of Order 18, Rule 18 CPC I draw support from Amratlal Vs. Land Acquisition Officer, Smt. Tikoli Kunwar v. State of U.P. and Ors. 1981 All. L.J. 1021 and Raghuvir Harischandra Salgaonkar Vs. Saraswati Pundalik Salgaonkar, In Raghuvir Harischandra Salgaonkar''s case it has been held:

..... It is now well settled that this power had been conferred on the Court with a view to enable it to understand and appreciate the evidence on record. In a given case the Judge may not be in a position to properly understand and appreciate the oral and documentary evidence on record without him self seeing the situation on the spot. It is to this limited extent that the Court is permitted to see the spot and draw its notes. This power, therefore, cannot extend to enable the Court to rely solely or wholly on its observations disregarding the evidence which is on record....

The provision of Order 18, Rule 18 of the CPC was considered by the Supreme Court in Ugamsingh and Mishrimal Vs. Kesrimal and Others, Though on the facts of that case the Supreme Court found that the judgment of the trial court was not solely based on its inspection report, yet, the ratio of this judgment is clear that where the judgment of a Court is based wholly on the observations of the Court during the spot inspection or the inspection report, its findings are vitiated. Now, the provision of Order 18, Rule 18 CPC stands amended and it is incumbent upon the Court to make a memorandum of its observations immediately after the spot inspection and place it on the record of the case. This was duly complied with by the District Judge in the present case.

Therefore, I accept this appeal and set aside the decree and judgment dated 29-5-1990 of the District Judge. The case is remanded to the District Judge, Solan, to restore the appeal of Roop Singh and others to its original number and decide it in accordance with law. As this suit pertains to the year 1979, it is in the interest of justice that the appeal is decided by the District Judge as expeditiously as possible. The parties are directed to appear before him on 20-12-1990.

In the facts and circumstances of the case, the parties are left to bear their own costs.