ROOP SINGH Vs. PARMA NAND

JUDGEMENT

(1.) In this Regular Second Appeal, Sh. Roop Singh and others, 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 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 others, 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.

(2.) Sh. Bhupender Gupta, learned Counsel for the appellants, at the very outset, has pointed out that the findings 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.

(3.) 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 spat 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 18 of the Code of Civil Procedure will destroy the very basis of out legal system. 4. For the above interpretation of Order 18 Rule 18, C P. C, draw support from Amrat Lal v. Land Acquisition Officer, AIR 1945 Bom. 302; Smt.Tikoli Kumar v. State of UP. and others, 1981 All LJ 1021 and Raghuvir Harishchandra Salgaonkar v. Smt Siraswati PundiUk Salgaonkar, AIR 1984 Bom. 284. In Raghuvir Harishchandra Salgaonkars case it has been held ; -