The central legal point established in the judgment is that findings based on spot inspection must be supported by a report or map as required by Rule 72 of General Rules (Civil) to be considered sustainable.

( 1 ) THIS is the second appeal against the judgment and decree dated 19. 7. 1980 passed by Sri N. C. Sinha, the then learned Civil Judge, Sultanpur dismissing the appeal and upholding the judgment and decree passed by the learned Munsif in Regular Suit No. 256 of 1978 which was a suit for perpetual injunction restraining the defendant from interfering in plaintiffs possession over the land in suit.

( 2 ) THE following question of law has been formulated by this Court at the time of admission, as given in substantial question of law a, which runs as under :

"whether the court below has committed an error of law in basing his findings on the basis of the observations of the trial court with regard to his spot visit, which were not only wrong and contrary to the factual position on the spot, but also stood vitiated as no inspection note was prepared by the learned trial court nor an opportunity to file objections was afforded, the site plan prepared by the Advocate Commissioner having already become vitiated and superseded for not depicting the correct position of the spot. "

( 3 ) I have heard the arguments and have gone through the records.

( 4 ) ADMITTEDLY, the spot inspection has been made by the learned Munsif himself who has not placed on record his report or any map prepared by him. It has therefore, been urged on behalf of the defendant appellant that the court below has committed an error of law in basing his findings on the basis of the observations of the trial court with regard to his spot visit, which were not only wrong and contrary to the factual position on the spot, but also stood vitiated as no inspection note was prepared by the learned trial court nor an opportunity to file objections was afforded to the appellant. I find that there is substance in this argument advanced by the learned counsel for the appellant. Rule 72 of General Rules (Civil) provides as under :

"when the Presiding Officer of a Court considers it necessary to make a local inspection, he shall invariably during the inspection or as soon as convenient thereafter, record a note to be placed on the file stating the purpose of the inspection and all facts perceived or impressions received in the course thereof which are likely to affect his decision in the case. This note shall, as far as possible, be prepared in the presence of parties or their counsel. Where this is not possible, the parties or their counsel shall be informed of it. "

( 5 ) IN the instant case, no report or map has been placed by the learned trial court who is alleged to have made spot inspection. This is against the provisions of aforesaid Rule 72 of the General rules (Civil ). In absence of the report and map of the spot inspection made by the learned trial court, the First Appellate Court has erred in placing reliance on such local inspection made by the trial court, hence the findings recorded by both courts below are vitiated and are not sustainable.

( 6 ) IT has been urged on behalf of the respondents that in view of the fact that there are concurrent findings of fact recorded by both courts below, no interference is called for in second appeal. This argument put on behalf of the respondents is not tenable in view of the recent pronouncement of Honble Supreme Court etc. It has been held by Honble Supreme Court in the ruling in Hafazat Hussain v. Abdul Majeed and Ors. , 2001 (4) AWC 2782 (SC) : (2o01) 7 SCC 189, that the rule of non-interference in concurrent findings of lower courts is not an absolute rule of universal application. What must be examined is whether its conclusions are justifiable according to the parameters of consideration for interference in second appeal. The same view has been held by this Court also in the ruling In Rasheed Ahmad and Ors. , v. Smt. Kariman khatoon, 2002 (1) AWC 346 (LB) : 2001 LCD 1097. It has been held by the Honble Supreme court in the ruling in AIR 1987 SC 1484, that the erroneous findings of fact recorded by the cou