Deoki Nandan, J.
1. 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 & 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 verynecessary 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 & 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.
5. The inspection Note of the learned Civil & Sessions Judge, Sri S. P. Sharma, is Paper No. Ka-l/18/-131 dated March, 30, 1967. The learned Civil & 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 & 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 & Sessions Judge by his judgment dated May 13, 1968.
6. The learned Civil & Sessions Judge has accepted the findings of the trial court on Issues Nos. 1, 2 and 3, but has reversed its findings on Issues Nos. 4 & 5. The learned Civil & Sessions Judge has found that the plaintiff-respondents were not in possession of the land in dispute within 12 years when they filed the suit. According to the learned Judge the defendants had been holding the land in suit adversely, since 1940. In the result, the decree of the trial court was reversed and the suit was dismissed.
7. Mr. K. C. Saxena, learned counsel for the plaintiff-appellants has in the forefront of his arguments attacked the action of the lower appellate court in making a local inspection and then in using the observations made and the impressions gathered at the local inspection for arriving at the finding that theplaintiffs had been dispossessed from the land in the year 1940. He has urged that the finding of the lower appellate court on the question of possession, particularly the length of possession and the point of time when it became adverse are clearly vitiated by the use made by the learned Civil & Sessions Judge of the observations and the impressions gathered by him at the local inspection. Now, it was the admitted case of the parties that the land was open. The plaintiffs case was that he demolished the construction thereon 9 years before, and that the land was lying vacant since then, but the worshippers at the temple of Sri Durga Ji, which is situate adjacent to the land in suit, used to pass over the land. The case of the defendant was that they had paved the land after having obtained it from the Manzooridars in 1940, and that they were using the land ever since as of right openly and adversely. Now, as to what had happened 9 years' ago, as alleged by the plaintiff, or in 1940 as alleged by the defendants, is a fact which could not be perceived by a local inspection of the land. The local inspection only showed that the defendants were in possession over the land. The question on which the decision of the case turned was not whether the defendants were in possession on the date of local inspection. The question was whether the plaintiffs had been in possession within 12 years before the filing of the suit.
8. I agree with the contention of the learned counsel for the plaintiffs-appellants that the findings of the lower appellate court on the question of length of possession and limitation will have to be taken to be vitiated, unless it could be established, as a matter of law, that the learned Civil & Sessions Judge was justified in making the local inspection and could have based his findings on what he saw rather than on the evidence on record. It has already been pointed out above that the question whether the plaintiffs were dispossessed nine years before the suit or in 1940 involved facts which could not have been perceived by a local inspection. Sri Rajeshwari Pra-sad, who appeared for the defendant-respondents, contended that there was sufficient evidence to support the findings of the lower appellate court on the twin questions of possession and limitation apart from what the learned Judge saw and observed in his local inspection. The two pieces of evidence are : (1) the Izazatnama of 1940, and (2) the mutation of theland in defendants' favour in 1954. Now the Ijazatnama has been held to be without title and it is improbable that if the defendants had entered into possession of the land in 1940 on the basis of Ijazatnama, they would have failed to apply for mutation for 14 years thereafter. The mutation in their favour in 1954 is certainly evidence of their possession, but that fits in with the plaintiffs' case that he got the house demolished 9 years before the suit (the suit having been filed in 1962) and thereafter the land has been lying vacant. It is not clear from the judgment of the appellate court whether the Ijazatnama of 1940 or the mutation proceedings were within the knowledge of the plaintiff-appellants. Be that as it may, if the learned Civil & Sessions Judge had come to the findings, on the basis of this evidence and the oral evidence on record that the plaintiffs had been dispossessed in the year 1940, it would have been difficult for a court of second appeal to interfere with that finding. But the fact remains that the finding of the lower appellate court on these two questions of possession and limitation are clearly vitiated by the use which the learned Civil & Sessions Judge has made of his observations, and the impressions gathered by him, at the local inspection.
9. Sri Rajeshwari Prasad then contended that the lower appellate court had power to make the local inspection under Order 18, Rule 18 C. P. C. That 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. From the grounds mentioned in the defendants' application for local inspection, it is clear that the conditions prescribed by Rule 27 for admitting fresh evidence by the appellate court did not exist.
10. A somewhat similar situation arose in Kessowji Isser v. G. I. P. Railway Co. (ILR 31 Bom 381). There the suit was for damages for personal injuries alleged to have been sustained due to negligence of the defendant. The plaintiff in that case was a passenger in a train from Bombay to Sion Station and the train having overshot the platform at Sion he had to alight at the place where the train hadstopped, that there were no lamps and it was dark at that place that no warning was given to the plaintiff that the train had crossed the platform and special care might be taken in getting down, and the result was that the plaintiff fell down and was seriously injured. Judgment was given by the trial court in plaintiff's favour, but the Railway Company applied for review of the judgment before the trial court on the ground of discovery of some new facts. That application was rejected.
11. Fresh evidence was taken before the High Court which differed from the trial court's judgment. No reason was given for admission of fresh evidence. Further, when the appeal was heard on merits the learned Judges of the High Court on their own suggestion, welcomed by counsel for both sides, decided to make a local inspection and on that basis allowed the appeal. The Privy Council made the following observations with regard to the procedure adopted by the High Court in that case.
'but even if it had been tentatively carried out, it did not necessarily follow that the court would cast to the winds the legal evidence in the case, and decide on impressions arising on the concerted representation. It would be too strict to hold that it is the duty of counsel, at their peril, to restrain Judges within the coursus curia, and to insist on their abstaining from experiments which to some may prove too alluring to admit of adherence to legal media concludendi.'
12. Sri Rajeshwari Prasad, however, relied upon three decisions to support the action of the appellate court in making the local inspection and in deciding the case on the basis of its observations and impressions. The first case relied upon by him is that of Amara Lal v. Land Acquisition Officer (AIR 1945 Bom 302). That case relates to local inspection made by the trial court but even there it has been clearly held that 'the purpose of local inspection is not to make it a substitute for the evidence but to assist in its process.' In the present case, however, it is clear that the questions whether the plaintiffs discontinued possession of the land some nine years' before the suit, or that the defendants dispossessed him and were in adverse possessionfor about 30 to 40 years before the date of suit, was a question which could notin any way be resolved by a local inspection.
13. This case does not, therefore, help the respondents in any way. It may be added that the learned Civil & Sessions Judge did not record any reasons for making the local inspection which he was bound to do under Order41, Rule27 C. P. C.
14. The next case relied upon by Sri Rajeshwari Prasad is that of Kaliammal v. Pongiammal (AIR 1958 Mad 331). In that case the Judge did not place on record the necessary note of the observations and impressions gathered by him at the local inspection. Failure to make a note and keep it on record was held to vitiate his judgment. In the present case the notes of the local inspection are on record and the parties were given an opportunity to file objection. Nevertheless, the real question in controversy between the parties in the present case was about something which happened some nine years' or 30-40 years' ago and I fail to understand how the evidence on record with regard to that question could have been appreciated better by having a look at the property.
15. In the result, the appeal must succeed. As already noticed above, the evidence on the question of possession and limitation may or may not be sufficient for deciding the case one way or the other. I have not looked into the evidence either, and, in the circumstances of the case, I am of the view that it would be in the interest of justice that the appeal be reheard by the lower appellate court in accordance with law.
16. The appeal is, accordingly, allowed and the judgment and decree of the court of Civil & Sessions Judge, Gyanpur in Civil Appeal No. 119 of 1964 are set aside. The appeal shall be restored to its original number and reheard in accordance with law on the evidence and material already on record, after excluding from consideration the two notes of local inspection dated March 30, 1967 and April 22, 1968. Costs in this court shall abide the result.