NOOR MUHAMMAD Versus KHUSHI MUHAMMAD

This judgment will dispose of Regular Second Appeal No. 194 of 1963.

2. The facts as ascertainable from the record and not denied by the parties are these. Rafiullah (respondent No. 7) owned property bearing Killa No. 3, Square No. 61, situate in Chak No. 224/R. B., Tehsil and District Lyallpur. Out of this Killa, he sold a parcel of land measuring 4 marlas, bounded as:

"North ... .......... land belonging to Sardar Shah,

South ... .......... land belonging to Ghularn Muhammad,

East ... .......... thoroughfare, and

West ... .......... land belonging to Nawab Din." to Noor Muhammad, the first appellant, as per sale-deed Exh. P. 1 on the 13th of July 1953. This sale transaction is evidenced by two mutations, namely, mutation No. 1382 attested on the 25th of December 1953 (Exh. P. 6) for four marlas comprising Square No. 61, Killa No. 3/71, and mutation No. 2984 of the 26th of February 1958 (Exh. P. 4), wherein the area trans ferred (4 marlas) is described as Square No. 61, Killa No. 3, Khasra No. 3/3. Another parcel of land measuring 4 marlas 2 sarsais out of said Killa No. 3 was sold by Rafiullah in favour of Sardar Shah (respondent No. 6) on the 9th of August 1953. The relevant sale-deed is not on the record. The said Sardar Shah, in his turn, sold on the 8th of June 1956, the plot purchased by him from Rafiullah to Abdul Hamid, the second appellant, by means of sale deed Exh. P.

2. The boundaries of the plot as given in Exh. P. 2 are:

"North ......................................................................................... ... land belonging to Jan Muhammad,

South ......................................................................................... ... land sold,

East ......................................................................................... ... thoroughfare, and

West ......................................................................................... ... land belonging to Nawab Din."

The mutation (Exh. P. 7) of Khasra No. 3/3/1 in favour of Sardar Shah bears No. 3099 and was attested on the 16th of April 1958. In this mutation appears the Tatimma Field Book, further sub-dividing the Khasra No. 3/3 of Killa No. 3 into three plots as under:

113/3/1 measuring 4 marlas 3 sarsais,

3/3/2 measuring 7 marlas, and

3/3/3 measuring 4 marlas."

Mutation No. 2948 (Exh. P. 3) pertaining to sale by Sardar Shah in favour of Abdul Hamid is of 26th of April 1957 and therein "the area transferred is of Square No. 61, Killa No. 3, Khasra No. 3/1. The sale in favour o1 Khushi Muhammad and other respondents is evidenced by registered sale- deed Exh. D. 1 and mutation (Exh. P. 5) bearing No. 2908 of 30th October 1957, of Square No. 61, Killa No. 3, Khasra Nos. 3/5 and 3/9. The bone of contention between the parties is Khasra No. 3/5 (as per Annex. 'A', Tatimma Shajra, parcelling out Killa No. 3 into 17 Khasra Nos. 3/1 to 3/17), which is claimed to have been purchased both by the appellants and the respondents Nos. 1 to 5. The appellants filed the present suit for dec laration to the effect that mutation No. 2098 dated the 30th of October 1957, by which Khasra Nos. 3/5 and 3/9 of Killa No. 3, Square No. 61 measuring 16 marlas 5 sarsais have been transferred to Khushi Muhammad and four others, the respondents, is void, illegal and inoperative against the rights of the appellants, with a prayer for consequential relief in the form of a perpetual injunction restraining the respondents from interfering with the possession of the appellants. The suit was resisted on all grounds. The parties produced both oral and documentary evidence in proof of their respective claims, The trial Court also made spot inspection. The suit was decreed by the trial Court mainly on the basis of the inspection note but the learned District Judge has reversed the decree in appeal.

3. Before me much stress has been laid on the inspection note prepared by the learned trial Judge on the 23rd of May 1962. A perusal of the record shows that an application was made by the plaintiffs on the 6th of February 1962 for spot inspection. The same day counsel for the plaintiffs made a statement before the Court that he closes the evidence if the Court agrees to make spot inspection. The spot inspection is shown to have been made in presence of the plaintiffs and one of the defendants, namely, Khushi Muhammad. Counsel for the parties were also present. The trial Judge has recorded his observations and impressions as also replies given by the parties to some questions put by him. To this note, counsel for the parties, as also the parties present, affixed their signatures or thumb-impression under the endorsement. "The report has been read out to counsel and parties present, who accept it as correct". The admission of Khushi Muhammad recorded in the note is to the effect that "the Khasra number which is no .v being shown as 3/5 is in occupation of the plaintiffs. My possession is on Plot No. 3/9". The defendant further stated that 'he obtained possession when he purchased but the plaintiffs occupied it sub sequently and picked up a quarrel with him'. In the earlier part of the note it has been recorded that 'on enquiry from the parties it transpired that the plot on the West was that of Nawab Din who has sold the same to one Dina Christian and has left. The house on the South is that of Ghulam Muhammad. On the East is Shahra Am. On the North it was first the plot of Jan Muhammad who has sold it to Easar Christian'. Learned counsel has attempted to argue that the admissions in the note are binding on the defendants and the identity of the parcels of land purchased by the plaintiffs stands fully established with that of Khasra No. 3/5 re-sold by Rafiullah defendant subsequent to the sale in favour of the plaintiffs.

4. The question of view by a Judge is covered by the provisions of rule 18, Order XVIII of the Code of Civil Procedure, which runs as follows :--

"The Court may at any stage of a suit inspect any property or thing concerning which any question may arise."

In London General Omnibus Company Limited v. Lavell (1901) 1 Ch. 135 it was observed by Lord Alverstone, C. J. :-

" . . . . I have never heard it said, and, speaking for myself, I should be very sorry to endorse the idea, that the Judge is entitled to put a view in the place of evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence . . . . ."

In Kassowji Issur v. Great Indian Peninsula Railway Company 34 I A 115, the procedure adopted by the High Court in going to the station where a presentation of the scene and evidence of the accident was gone through by which the Judges were enabled to make a thorough investigation of the material condi tions accompanying the accident and they formed their opinion on the question of sufficiency or otherwise of the light and gave judgment in accordance with them, was held illegal for the reason that the appeal was decided not on the testimony given at the trial as to what took place on the night of the accident, but by the Judges' observation of what they saw on another night altogether. The decision based on it was set aside. It was observed:

"Their Lordships find it impossible to admit the legitimacy of such procedure or the soundness of such conclusions. Even if the question of light could be isolated from the rest of the case, there was no ground whatever for despairing of sound results being yielded by a careful analysis of the evidence, and in fact, this was demonstrated by the excellent judgment of the trial Judge. On the other hand, the method actually adopted is subject to the most palpable objections and fallacies."

The scope of power of Courts to inspect under Order XVIII, rule 18, C. P. C. was also examined by this Court in Harnama and others v. Ghania Lai and others A I R 1930 Lah. 152 where it was held :

"Inspections by Courts are intended to test the accuracy of evidence let in. Where no evidence has been recorded and the Court appears to be influenced merely by its own inspection note, the Court in effect comes a kind of witness in the case and the judgment is not proper."

It is thus clear that inspection is not a substitute for evidence and a judgment based merely upon inspection is not binding unless the parties agree. In Municipal Committee, Bilaspur v. Wamanrao Vinayakrao Brahmin A I R 1941 Nag. 292 the parties agreed to accept the opinion of the Judge himself on a spot inspec tion. The Judge accordingly visited the factory and took into consideration his own inspection note. The objection as to finding being based on the personal opinion of the Judge was repelled on the ground that in an ordinary case, the opinion of the Judge formed on spot inspection cannot take the place of evidence. But where the parties had agreed to accept the opinion of the Judge on certain point requiring spot inspection and for that, reason led no evidence, in such special circumstances, the opinion of the Judge can be accepted in place of evidence. In a subsequent Bombay case, Amratlal and others v. Land Acquisition Officers, Ahmedabad A I R 1945 Bom. 302 an in spection was made by the trial Judge in proceedings arising under the Land Acquisition Act. The trial Judge went in company of the claimants' manager, -the pleaders in two companion references and the Government Pleader for local inspection. He visited not only the site of the acquired properties but the neighbouring localities and also several other properties which were the subject-matter of sale. He made notes of inspection which were shown to the Government Pleader and the two pleaders who appeared in the other reference and they simply initialled them. On objection being raised, although the findings about the valuation of the different blocks were affirmed, the procedure adopted by the trial Judge for local inspection was looked at with disfavour, It was observed that it is always desirable in all cases where local inspection is necessary that the Judge should carry out the inspection at any stage before the arguments are heard and if he conducts the inspection at the request of the parties, it should be made clear where the parties have left the matter to be decided as he thinks proper from his inspection or that he is merely inspecting under Order XVIII, rule 18 of the Code of Civil Procedure. If the Judge records his impressions or opinions in his notes of inspection, the parties must have an opportunity to urge their arguments on those notes at the time when the case is generally argued before the Court. In most cases it would be desirable for the Judge t confine his notes the facts which he observes without recording his impression or opinions. He is entitled to form his impression, but if he records them in the notes, the parties should have the opportunity to meet them in the arguments and he should not decide the case merely from his impressions without giving due weight to the evidence". Now, the opinions and impressions recorded by the learned trial Judge in the instant case cannot be in any manner held to be overriding the evidence on the record or to supply the missing links in the evidence of either of the parties. The argument that the signatures under the endorsement `who accept it as correct' give rise to an inference that the respondent expressly or at least impliedly accepted the truth of the contents of the note is not inspiring, because the act of subscribing signatures or thumb-impressions to the inspection note does not turn it into any admissions or statements made on behalf of the parties, when the opposite-parties had no occasion to cross-examine and place; their view point before the Court. Even if it be held that words `who accept it as correct' do not leave the contents of the inspection note as equivocal, nothing has been said by Khushi Muhammad defendant which amounts to an admission of the plaintiff's claim. Since the very procedure adopted was not in consonance with Order XVIII, rule 18, C. P. C., the signing of the said note by the pleader of the patties or thumb-impressions of the parties thereon would not add to the evidentiary value of the inspection note or it alleged conclusive nature.

5. Adverting to evidence on the record, the picture that emereges is somewhat like this. As per entries of the boundaries of the two plots in the sale-deeds Exhs. P. I and P. 2 in favour of the plaintiffs, on the East of the two plots is a street, on the West is the plot of Nawab Din, on the South of the plot of Noor Muhammad is situate the house of Ghulam Muhammad and on its North is the plot of Sardar Shah, which was sub sequently purchased by Abdul Hamid and abutting on the North of the plot of Abdul Hamid is the plot of Jan Muhammad. The plots purchased by the appellants have not been conclusively proved on the record to be identical with Khasra No. 3/5, which has been specifically purchased by respondents Nos. 1 to 5 as per sale-deed Exh. D.

1. If the appellants feel aggrieved by the alleged re-sale of their property by Rafiullah, they may seek redress in the proper forum.

6. An application has been made during the course of arguments (when the case was adjourned for hearing to the next day) under Order XLI, rule 27, C. P. C. for producing additional evidence in the form of Jamabandi, etc., so as to adduce additional proof in support of demarcation of the property and to supply the omission of boundaries. It will not be out of place to mention here that the plaintiffs failed to deposit the necessary expense for summoning the Patwari who had been partly examined earlier and the trial Court was constrained to close evidence of the said witness under Order XVII, rule 3, C. P. C. as two opportunities granted for the purpose had not been availed of by the plaintiffs. Subsequently at the request of the plaintiffs and with consent of the defendants, further witnesses were ordered to be examined on behalf of the plaintiffs. However, only Rafiullah was examined as C. W. I on the 11th of May 1962, but the plaintiffs did not summon or produce the Patwari. They did not make any grievance thereof before the lower appellate Court, nor was any step taken earlier for the purpose before this Court. Now when the appellants find that they cannot get out of their own omission, this application has been made. There is no legal obligation to fill up gaps m the party's case by resort to Order XLI, rule 27, C. P. C. (See Muhammad Akbar Khan v. Motai A I R 1948 P C 36. The application is, therefore, rejected.

7. For the reasons given above, the appeal fails and is dismissed. The parties are left to bear their own costs.

K. B. A. Appeal dismissed.