SANNAGOUNDARA SIDDAPPA Vs. MAHADEVAPPA AND

JUDGEMENT

(1.) This second appeal arises from a suit filed by the respondents for a declaration of their prescriptive right of easement to lead the water from the bathroom of their house into the open yard of the defendant situated to the north of the plaintiffs' house and for an injunction directing the defendant to remove, the obstruction made by him to the flow of the water.

(2.) The trial Court decreed the suit and this was confirmed by the appellate Court below. The decision depended upon whether the plaintiffs had established exercise of the easementary rights continuously for the requisite period. This was essentially a question of fact and the concurrent finding of the Courts below cannot be interfered with in second appeal.

(3.) But the learned advocate for the defendant, who is the appellant before this court, urges that the decision of the trial Court was vitiated by the fact that it was based mainly on the learned Munsiff's own observations during the local inspection and not on the evidence in the case and that further that the learned Munsiff made no notes of inspection at all, which circumstance rendered the judgment itself illegal. A number of deci-sions have been cited by the learned Advocate for the appellant in support of the first part of the contention. It is not necessary to refer to all of them, since all the important decisions have been referred to in Krishnaswamy Rao V. Dundappa, 39 Mys LJ 402 (AIR 1962 Mys 17), where the well established position is stated, namely that the views of the presiding officer at the time of inspection of the property in dispute can be used only for the purpose of better following and understanding the evidence adduced in the case or to its accuracy and the observations of the Judge cannot be substituted as evidence in the case or to contradict the evidence placed before the court and make it the foundation of the judgment. In this connection I should also refer to what has been stated on this point in the judgment in S. A. Ho. 292 of 1960 (Mys).