A court cannot deviate from a procedure agreed upon by the parties, and a spot inspection by the court cannot take the place of evidence.

( 1 ) THE defendant / appellant has come up in appeal aggrieved by the judgment and decree of the lower appellate Court issuing permanent preventive injunction against the defendant/ appellants restraining them from interfering with the possession of the plaintiff/ respondent over 9 mahua trees, in reversal of the decree of the trial Court which had dismissed the suit.

( 2 ) THE trees are situated on the border of two villages namely village Chukni and village Dhakni, both of Tahsil Manasa. Land S. No. 410 situated within village Chukni is owned and possessed by the plaintiff/ respondent. Lands S. Nos. 82,83 and 84 are owned and possessed by the defendant/ appellants and are situated within village Dhakni. The Govt. land lying in between two villages is known as kankad. This Kankad situated between village Chukni and Dhakni is designated S. No. 411.

( 3 ) THE plaintiff/ respondent filed the suit alleging that the 9 trees were situated over land S. No. 410 but the defendants were causing interference with the possession and enjoyment of the plaintiff. He prayed for a declaration of title over land S. No. 410 and the 9 Mahua trees standing thereon followed by an injunction preventing the defendant/ appellants from interfering with the possession and enjoyment of the land and trees by the plaintiff.

( 4 ) THE defendant/appellants in their written-statement denied knowledge about the ownership and possession of the plaintiff over S. No. 410 but submitted that the 9 Mahua trees were situated not in S. No. 410 but in the land belonging to the defendants wherein the plaintiff had no right, title interest of possession.

( 5 ) THE pleadings of the parties show that the real dispute between them was not about the land but as to the ownership and possession of the 9 Mahua trees. The crux of the controversy clustered around the finding on the question as to whether the trees stood over S. No. 410 or not.

( 6 ) WHAT happened at the trial Court is interesting to note. Though the issues were framed and put to trial, on 18-6-1976, as the order-sheet of the trial Court shows, the parties moved a joint application for appointment of Superintendent, Land Records, Mandsaur as Commissioner to make a local investigation and report the location of the trees. The parties further agreed that the report of the Commissioner would be acceptable to both of them; that the Court would be free to decide the matter solely on the report of the commissioner; and that the Court may proceed to pronounce on the merits of the case by placing reliance on the report of the commissioner. The commissioner was appointed and executed bi-parte having conducted the local investigation, the Commissioner found vide his report Ex. C/9 that out of the 9 trees, three were situated within the boundaries of S. No. 82 village Dhakni, three were situated on the boundary line of the two villages and the remaining three were situated on S. No. 411, the Kankad. As none of the trees was found to be situated within the boundary of S. No. 410 village Chukni as alleged by the plaintiff, the suit was directed to be dismissed. It may be stated that the report of the commissioner was objected to whereupon the Court examined the Commissioner as a Court witness affording both the parties an opportunity of cross-examination.

( 7 ) THE plaintiff filed an appeal. Upon an application made by the plaintiff/ appellant, the learned Judge presiding over the lower appellate Court himself proceeded to inspect the spot on 20-4-1978, whereafter he heard the counsel for the parties and disposed of the appeal. Paras 5 to 9 of the judgment of the lower appellate Court show that the entire judgment is based on the impressions formed by the learned appellate Judge at the time of spot inspection and some of the information collected during the course of spot inspection has been utilised for reversing the finding of the trial Court without disclosing the source from which the information was gath