LAKMIDAS KHUSHAL Vs. BHAIJI KHUSHAL

JUDGEMENT

(1.) The point of law urged in this Second Appeal, in my opinion, fails. The parties are the owners respectively of two fields, which are opposite to each other. Plaintiff, the present appellant, is owner of Survey No. 88, and defendants own Survey No. 87. The two properties are separated by a narrow passage. The plaintiff alleged that water from his field passed on from its south-west corner to the narrow passage; that thence it flowed on to the defendant s field and that there it ran along a well-defined passage. The plaintiff complained that the defendant had obstructed this latter passage by raising an embankment so as to prevent the water entering his field. The defendant denied the existence of any such passage for water in the field. So the question at issue was whether there was or had been any such passage as alleged by the plaintiff. Witnesses examined on behalf of the plaintiff deposed that the passage in dispute had existed all along and was still visible to the eye.

(2.) Both parties thereupon requested the trial Judge to visit the spot and see for himself whether the passage was still visible to the eye. Accordingly the Subordinate Judge visited the spot and in the presence of the pleaders of the parties satisfied himself that the passage in question was not visible; and, therefore, he disbelieved the plaintiff s witnesses and disallowed the claim without examining any of the defendant s witnesses.

(3.) The plaintiff appealed to the District Court and contended that the Subordinate Judge had wrongly decided the case, because he had disposed of it, not by appreciating the evidence, but by the light of his own view of the passage. The appellate Court disallowed the contention, holding that the Subordinate Judge was "at liberty to see the disputed property," that it was necessary for him to see it, and that, having seen it in the presence of the pleaders of the parties, he was warranted in forming his own opinion on the case.