KALIAMMAL ALIAS THAYAMMAL Vs. PONGIAMMAL AND ORS.

JUDGEMENT

(1.) THIS appeal was posted before Govinda Menon, J., (as he then was). He has, because of divergence of views between Judges, regarding whether notes of a local inspection made by a Court should be prepared and kept on record or not and whether the failure to do so would vitiate the judgment or not, referred this Second Appeal to a Bench for being decided by it. That is how it has come before us.

(2.) THE facts were briefly these : O.S. No. 107 of 1950 on the file of the District Munsif, Gobichettipalayam, was filed by one Kaliammal alias Thayammal, for a declaration of her easementary right to use the suit pathway ABC marked green in the suit plan, to go to her land S. No. 44 -C and to take her men, cattle and carts along it, and for a permanent injunction restraining the defendants and their men from obstructing her and her men from walking along or taking men and cattle and carts along the said pathway, A B C and for costs. The suit was stoutly resisted by the defendants on the ground that the plaintiff had no easementary right of any kind, and that she had no right to take any carts or cattle or men along the pathway. The learned District Munsif, after discussing the evidence, held that the plaintiff was entitled to the right of way claimed and decreed the suit with costs. The defendants took the matter in appeal. The learned Second Additional Subordinate Judge, Coimbatore, heard the appeal, A.S. No. 3 of 1953 on his file. In the course of the pendency of the appeal he made a personal inspection of the suit ' locality, but did not prepare any notes of that inspection and leave it on record. He referred in para. 10 of his judgment to his local inspection and to some facts observed by him. He reversed the judgment of the learned District Munsif and dismissed the suit with costs throughout. The Second Appeal has been filed by the plaintiff against the judgment and decree in appeal. One of the points urged in the Second Appeal was that the judgment of the lower Appellate Court was vitiated by the failure of the learned Subordinate Judge to prepare notes of his inspection and leave them on record. It was also contended that the lower Appellate Court had acted on facts found by it at the inspection without disclosing those facts by preparing notes of inspection and leaving them on record. Govinda Menon, J., thought that the first question, viz., whether the trial Court or the appellate Court making a local inspection was bound to prepare notes of such inspection and keep them on record, was an important one to be decided by a Bench.

(3.) WE have perused the records and heard the learned Counsel on both sides. We are now deciding only the question as to whether a Court, trial or appellate, making a local inspection is bound to prepare' notes of inspection and keep them on record, whether or not the facts found by it at the local inspection had influenced it for arriving at its judgment and had been relied on by it as reason for its judgment. It was conceded by Mr. Jagadisa Ayyar and cannot be disputed on the rulings that if the facts found at the local inspection have been used, wherever it is permissible to do so, by the Court for arriving at its conclusions on the judgment, notes of such local inspection should be prepared and kept on record. But that will involve examining the judgment itself and finding how far the Court was influenced by the facts found at its local inspection in arriving at the judgment. The mere fundamental question is whether, even in the absence of proof that the facts found at the local inspection had visibly influenced the Court in arriving at its judgment, the Court was still bound, once it made a local inspection, to prepare notes of such inspection and keep them on record, and whether the judgment would be vitiated by its failure to do so. Mr. Jagadisa Ayyar contended that, whatever might be the natural justice aspect of it, there is nothing in law to require a Civil Court making a local inspection, and not visibly relying on the facts found by it at the local inspection for arriving at its judgment to prepare notes of such local inspection and keep them on record.