Wanchoo, C.J.-This is a plaintiffs second appeal from the decree of the District Judge of Ganganagar.

2. The plaintiff had filed a suit against Bhoma defendant respondent for Rs. 545/-. His case was that there was an agreement between him and the defendant who had agreed to make a kund for him according to certain specification. He had, therefore, paid Rs. 475/- to the defendant for that purpose. The defendant however, did not make the kund according to the specification. The suit was, therefore, brought for return of the amount of Rs. 475/- and for another sum of Rs. 70/- on account of certain other items.

3. The defence of the defendant was that he had received only Rs.425/-. He also denied having received the other articles worth Rs. 70/-. Finally, he said that the kund had been constructed according to the specification and, therefore, nothing was due from him. The defendant went on to say that he was entitled to Rs. 160/- from the plaintiff.

4. The trial court came to the conclusion that only Rs. 425/- had been paid by the plaintiff to the defendant It also came to the conclusion that the plaintiff was not entitled to any sum on account of anything else. Finally, it held that the kund had not been made according to specification and, therefore, after deducting Rs. 200/- which Was the price of the amount actually spent on whatever had been made by the defendant, a decree for Rs. 225/- was passed against the defendant.

5. The plaintiff was satisfied with this decree and did not appeal. The defendant, however, appealed. His appeal was allowed by the learned District Judge on the ground that the judgment and decree was based entirely on the inspection made by the Munsif under Order XVIII Rule 18 of the Code of Civil Procedure and that a note of inspection by the court cannot be a substitute for evidence. The learned Judge was also of opinion that the plaintiff in his evidence had failed to prove how the kund had not been prepared according to specification.

6. The plaintiff has come in second appeal to this court and two contentions have been raised on his behalf. In the first, place, it is urged that the learned Judge, when he arrived at the conclusion that the plaintiff had failed to prove that the kund had not been made according to specification, completely overlooked the evidence of one material witness Onkar Mistri who was produced on the 16th of June 1949. It is, therefore, urged that this court is not bound by the finding of fact arrived at by the Judge when that finding overlooks completely the evidence on the point. The record shows that Onkar Mistri was examined on the 16th of June 1949 and there is no mention of his evidence in the judgment of the Judge. This witness gave evidence as to the specification of the kund. Considering that the Judge has overlooked this evidence altogether and it is of the utmost importance in the suit, I am of opinion that I am entitled to weigh the evidence afresh. His evidence shows that the length and breadth of the kund were according to specification but the raddas were not according to specification with the result that the kund cracked and could not hold water. If the learned Judge had considered this evidence, he would not have remarked that there was no evidence to show that the kund was not according to specification and that the inspection note was being made a substitute for evidence. The basis, therefore, on which the learned Judge came to the conclusion that it had not been proved that the kund was not according to specification, fails. Taking into account the evidence of Onkar Mistri and also the inspection note of the trial court which goes to support that evidence, there can be no doubt that the kund was not according to specification and the finding of the first court on this point was correct.

7. The second point that has been urged on behalf of the appellant is that in this particular case, the inspection note alone was sufficient as the inspection was not purely under Or

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