The power of a court to make a local inspection under Order 18, Rule 18 C.P.C. is a power given to the trial court during the course of hearing of a suit and examination of witnesses, and assuming that the lower appellate court can also exercise that power, it is clear that the doing so amounts to admitting fresh evidence, but the lower appellate court has not recorded any reasons for making the local inspection.

JUDGMENT :- This is plaintiffs second appeal in a suit for permanent injunction restraining the defendants from interfering with their possession over certain land described at the foot of the plaint.

2. It was the admitted case of the parties that the land was appurtenant to house No. 320 of Gopiganj Bazar, Pargana Bhadoi, district Varanasi. The dimensions of the land were given as 10 on the north, 16 on the south, 97 on the east and 94 on the west. There were two defendants in the suit and they are the two defendant respondents in this appeal, namely, Shri Durga Ji, through Shri Sita Ram Mali, Panda Shri Durga Ji, and Shri Sita Ram son of Shri Durga Mali. On the pleadings of the parties the trial court framed the following seven issues :-

1. Whether the house standing on the land in suit belonged to Kamta? If not to whom the house belonged?

2. Whether the house in suit was purchased by Anant Ram from Kamta?

3. Whether the plaintiffs are owners of the land in suit?

4. Whether the plaintiffs are in possession over the land in suit? If not its effect?

5. Whether the suit is barred by 12 years rule of limitation?

6. Whether the suit is undervalued and the court fee paid is insufficient?

7. To what relief, if any, are the plaintiffs entitled?

3. On the first issue, the trial court held that the land in suit belonged to Kamta : on issue No. 2, it held that the house standing on the land in suit was purchased by Anant Prasad, on issue No. 3, that the plaintiffs are owners of the land in suit, and, on issue No. 4, that the plaintiffs demolished the house about 11 years back and got the stone slab laid, and have been in possession, over the land in suit. Accordingly, it was held on issue No. 5, that the suit is not time barred. Issue No. 6 had been decided earlier with the finding that the court fee paid was insufficient, and the deficiency was made good by the plaintiffs before the trial started. In the result the trial court held the plaintiffs entitled to the relief claimed and decreed the suit.

4. The defendants appealed to the District Court. The appeal was assigned to the court of Civil and Sessions Judge, Gyanpur. Before the lower appellate court an application dated March 14, 1967 appears to have been made by the appellants for local inspection of the property. This application is paper No. 16-Ga-2/129 of the lower court record. The only ground on which application for local inspection was made was that it was very necessary in the case and without local inspection many of the things will not be clear, and it would make it easy to understand and appreciate the evidence. On March 14, 1967 the then Civil and Sessions Judge, Gyanpur. Sri S. P. Sharma, ordered that the application will be considered at the time of arguments. Thereafter on March 17, 1967, he passed the following order :-

" Local inspection on the evening of 30/3. Date of argument will then be fixed.

Sd. Illegible

17/3"

5. The inspection Note of the learned Civil and Sessions Judge, Sri S. P. Sharma, is Paper No. Ka-1/18/-131 dated March, 30, 1967. The learned Civil and Sessions Judge, Sri S. P. Sharma, who had made the local inspection, could not, however, hear arguments in the appeal and it appears Mr. Sachidanand was posted in his place. When the appeal was taken up for hearing before him on March 16, 1968, the need for making local inspection appears to have been reiterated by the learned counsel for the appellants in his arguments and the learned Judge fixed April 7, 1968 and then 21-4-1968, for local inspection. His inspection note is dated April 22, 1968 and is also on the record. The learned Civil and Sessions Judge gave the parties an opportunity to file objections, but no objection having been filed to his inspection note, hearing of arguments in the appeal was adjourned to 17th May, 1968. Thereafter, the appeal was allowed by the learned Civil and Sessions Judge by his judgment dated May, 13, 1968.

6. The learned Civil and Sessions Judge has accepted th

Click Here to Read the rest of this document