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Lakmidas Khushal Vs. Bhaiji Khushal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 935 of 1909
Judge
Reported in(1911)13BOMLR313
AppellantLakmidas Khushal
RespondentBhaiji Khushal
Excerpt:
.....light of his own view of the passage:--;that there was no error in the procedure adopted by the judge. a judge ought not to substitute his view for the evidence in the case tried by him. when he visits a spot and makes observations for himself, the result of these observations must be used by him only for the purpose of understanding the evidence; he must not, in fact, ignore the evidence as if he had not heard it and dispose of the case merely by the light of what he saw on personal inspection. this principle applies where the case is obscure and the evidence can best be understood by a personal view. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate..........view. as was said in london general omnibus company, limited v. lavell [1901] 1 ch. 135, in such cases 'a view is for the purposes of enabling a tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence.' but there are cases of a different kind, cases where, as remarked by farwell j. in bourne v. swan and edgar, limited [1903] 1 ch. 211, 'it is the eye-sight of the judge that is the ultimate test.' in the present case the witnesses examined for the plaintiff deposed that the passage, as to which there was a dispute, was still visible to the eye and that it could be seen at any moment, by any one visiting the spot; and, therefore, the parties asked the subordinate judge to apply the most satisfactory test available, viz., to go to the.....
Judgment:

N.G. Chandavarkar, J.

1. The point of law urged in this Second Appeal, in my opinion, fails. The parties are the owners respectively of two fields, which are opposite to each other. Plaintiff, the present appellant, is owner of Survey No. 88, and defendants own Survey No. 87. The two properties are separated by a narrow passage. The plaintiff alleged that water from his field passed on from its south-west corner to the narrow passage; that thence it flowed on to the defendant's field and that there it ran along a well-defined passage. The plaintiff complained that the defendant had obstructed this latter passage by raising an embankment so as to prevent the water entering his field. The defendant denied the existence of any such passage for water in the field. So the question at issue was whether there was or had been any such passage as alleged by the plaintiff. Witnesses examined on behalf of the plaintiff deposed that the passage in dispute had existed all along and was still visible to the eye.

2. Both parties thereupon requested the trial Judge to visit the spot and see for himself whether the passage was still visible to the eye. Accordingly the Subordinate Judge visited the spot and in the presence of the pleaders of the parties satisfied himself that the passage in question was not visible; and, therefore, he disbelieved the plaintiff's witnesses and disallowed the claim without examining any of the defendant's witnesses.

3. The plaintiff appealed to the District Court and contended that the Subordinate Judge had wrongly decided the case, because he had disposed of it, not by appreciating the evidence, but by the light of his own view of the passage. The appellate Court disallowed the contention, holding that the Subordinate Judge was 'at liberty to see the disputed property,' that it was necessary for him to see it, and that, having seen it in the presence of the pleaders of the parties, he was warranted in forming his own opinion on the case.

4. In second appeal the same contention is repeated before us; and reliance is placed by the appellant'spleader on some decided cases, particularly on the judgment of the Judicial Committee of the Privy Council in Kessowji Issur v. G. I. P. Railway Company ILR (1907) 31 Bom. 381. The other cases cited are Joy Coomar v. Bundhoo Lallu ILR (1882) Cal. 363, Dwarka Nath Sardar v. Prosunno Kumar Hajra (1897) I.C.W.N. 632, and Moran v. Bhagbat Lal Saha ILR (1905) Cal. 133. It is urged on the strength of these authorities that the trial Judge has erred in two respects, first, that he put his view in the place of the evidence which the law did not warrant; and, secondly, that he decided the case without putting on record the result of his view, so as to give the plaintiff an opportunity of meeting the impressions formed by the Judge by his inspection. None of the cases which have been cited has any cogent relevancy to the question which we have to decide here. All that was held in those cases is that a Judge ought not to substitute his view for the evidence in the case tried by him; that when he visits a spot and makes observations for himself, the result of those observations must be used by him only for the purpose of understanding the evidence, that in fact he should not ignore the evidence as if he had not heard it and dispose of the case merely by the light of what he saw on personal inspection. That law applies where the case is obscure and the evidence can be best undersood by a personal view. As was said in London General Omnibus Company, Limited v. Lavell [1901] 1 Ch. 135, in such cases 'a view is for the purposes of enabling a tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence.' But there are cases of a different kind, cases where, as remarked by Farwell J. in Bourne v. Swan and Edgar, Limited [1903] 1 Ch. 211, 'it is the eye-sight of the Judge that is the ultimate test.' In the present case the witnesses examined for the plaintiff deposed that the passage, as to which there was a dispute, was still visible to the eye and that it could be seen at any moment, by any one visiting the spot; and, therefore, the parties asked the Subordinate Judge to apply the most satisfactory test available, viz., to go to the Held and see for himself whether the witnesses for the plaintiff were speaking the; truth or not. Accordingly the Judge visited the spot. In other words, the Judge was asked by the parties to act upon the legal maxim, res ipsa loquitur (the thing speaks for itself). As is pointed out by the commentators of Best on Evidence, a Jury is competent to take into consideration the locus in quo or to view the premises. The Privy Council decision in Kessowji Issur v. G.I. P. Railway Company ILR (1907) 31 Bom. 381 turns upon a different set of facts altogether. There what their Lordships decided was that the High Court had acted illegally in deciding the question as to an event which had taken place one evening by the light of what the Judges had seen on another evening amidst possibly different surroundings. That cannot be said to have been the case here. Here the Subordinate Judge was told that there was a passage which existed, and which had always existed, and which could be seen at any moment by the eye. The eye was the Judge and the case is governed by the principle of law enunciated by Farwell J. in the case abovementioned on the authority of some cases decided by the House of Lords. Therefore, in my opinion, there was no error in the procedure adopted by the Subordinate Judge and there is no law which bound him to record his view and explain it to the parties before deciding the case. The decree must be confirmed with costs.

Heaton, J.

5. I agree that the decree must be confirmed with costs. It does, however, seem to me that the first Court, the Subordinate Judge, has written a judgment, which is open to a good deal of criticism. Because from the way in which he has expressed himself he has given ground for the argument that he substituted his own impressions derived from the local inspection of the place, for the evidence in the case. But the result of the argument has been to convince me that in effect he has not done this; but has only used the circumstances which were perceived at the local investigation for the purpose of understanding and appreciating the evidence. As the result of discussion the objection taken on behalf of the appellant ultimately resolved itself into this: that the Judge had not recorded in writing the circumstances observed at the inspection, and the parties consequently had not had an opportunity of discussing those circumstances and dealing with them in so far as they affected the case. I think there is this in the objection that it would be much better that the Judge should record the circumstances which are observed at a local inspection. In so saying I must emphatically add that I think he should record only facts and not impressions or inferences from facts.

6. But when a local inspection takes place we know that in the ordinary course of events the salient circumstances are pointed out on the spot and are discussed on the spot; and there is nothing in the case to suggest that the ordinary course of events was not followed here. I assume that it was followed, and as a consequence I find that the defect in not recording the circumstances in writing is a purely formal defect, which could not have misled the parties or caused injustice in the case. For these reasons I think the appeal must be dismissed and the decree confirmed with costs.


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