ABDUL BAQI Vs. MFAKHRUL ISLAM

JUDGEMENT

(1.) The question in this case is whether the plaintiffs-respondents were entitled to exclusive rights of irrigation from a certain ahar. The details, it is unnecessary to slate, and the question argued before me is limited to the matter of whether the learned Judge has acted irregularly by importing, so it is said, his own knowledge into the case from a local inspection and secondly whether he was right in holding that the khesra was inadmissible in evidence. As regards the first question, there are two or three observations during the course of the learned Judge's judgment from which it can be gathered what influence the local inspection had upon the learned Judge's mind as regards the facts of the case. The first observation he makes is this: From the natural position of the lands in defendants takhtas on the locality lying much removed at a distance from the pind 644 up to junction and pind 645 and in the absence of any documentary evidence that the lands of the defendants are in Kita Uperka Ahar Ka Pith I would conclude that they are not in Kita Uperka Ahar Ka Pith.

(2.) It might be suggested that, that statement does not result from the local inspection, but on reference to other passages of the judgment with regard to this matter the point seems to be clear. It was the plaintiff's case, it appears, that the defendant had other sources of irrigation and therefore was not entitled to irrigate from the ahar in dispute. The learned Judge in the Court below points out that the Munsif had not relied upon the oral evidence excepting the evidence of D.W. No. 1. Then he goes on to point out that the evidence of D.W. No. 1 must be taken with great caution". The witness had said that there were no Ahris called Utarwari, Dayali and Naiki. Then the Judge goes on to point out that he (the Judge) found at Ideal inspection that there were khatas very deep in these Ahris and the western pinda were very high. Prom that he goes on to observe that this falsifies the witness's evidence. Then at a later stage of his judgment the learned Judge says: It appeared at the local inspection that a portion of the eastern pind of Dayali Ahri has been removed or in other words the pind 644 at its northern extremity has been removed. It shows clearly that the surface water goes to Utarwari Ahri in 633.

(3.) Now the function of the learned Judge in exercising his rights of local inspection granted by the statute, i.e., under the Civil Procedure Code, is for the purpose of understanding the evidence and for no other purpose. By "understanding the evidence" is not meant "contradicting a witness". A witness may make a statement which from the local inspection may appear to be untrue ,but the learned Judge is not entitled to say that it is untrue from what he himself observes. The reason for granting this power of local inspection is perfectly obvious. In certain cases facts are complicated and without having the opportunity to see the subject-matter of the witness's evidence, it is almost impossible to understand what the witness means and it is for that purpose that the Judge is entitled to inspect the locality. If he wanted to contradict D.W. No. 1 he was not entitled to do so from what he saw on the spot as it is perfectly obvious that _ had the parties been entitled to question the learned Judge on what he saw a very different result might obtain from that which the learned Judge describes in his judgment. D.W. No. 1 may be a truthful witness or an untruthful witness; but when he says that there were no Ahris he can only be contradicted in that by process known to the law, namely, cross examination or by other and more cogent evidence which will show that his statement cannot be supported. I have analysed the learned Judge's judgment with care and fail to come to the conclusion that the passages to which I have referred are not an indication that the whole judgment on this question of fact for such as it was, was not influenced by the learned Judge's observation.