Deoki Nandan, J.
1. This is a plaintiff's second appeal arising from a suit for possession over certain constructions shown by letters Va Bha Ksha and Pa Ta Bha Ra Ya Pha with the land underneath and land shown by the letters Ka Ra Ya Pha Da Kha on the map annexed to the plaint and for recovery of Rs. 50/-as damages.
2. The plaintiffs alleged that the parties were descended from a common ancestor Sukkhu who had three sons Thakur Din, Mahabir and Mahadeo. The plaintiffs Bhaggal and Rup Narain were the sons of Mahabir. Mahadeo and his three sons Bhagwan Dass, Raja Ram and Ram Lakhan were defendants Nos. 1, 2, 3 and 4 respectively. Sukkihu died about 45 years, before the date of suit, whichwas filed on August, 31, 1962, leaving him surviving his three sons Thakur Din, Mahabir and Mahadeo, that a few years after the death of Sukkhu, his three sons became separate in estate and residence about 40 years ago; that the house shown by the letters Ja Jha Ta the Da Ga Gha on the plaint map was ancestral and the sons of Sukkhu and their family members used to live separately in different portions thereof; that about 35 years ago the house was divided into three portions by metes and bounds, the western most portion Ja Jha Ta Chha was allotted to Thakur Din's share; the middle portion Cha Chha Ta the Da Dha Na was allotted to the share of the plaintiff's father Mahabir and the eastern most portion Da Dha Na Cha Jha Ga was allotted to the share of the first defendant Mahadeo and it was added by amendment of the plaint that the eastern most portion which was allotted to the defendant's share was occupied before the said partition 35 years ago, by the plaintiff's father Mahabir. The plaint proceeds on to state that the land of plot No. 55 of Mohalla Makhdoom Shah Bare of the town of Jaunpur having an area of 8 decimals was in occupancy tenancy of the plaintiff's grand father and after him it came to his sons but there were several litigations with respect to that land, and ultimately the northern portion having an area of 4 decimals of that land was held to belong to Ram Roop, and in respect of the southern portion thereof having an area of 4 decimals shown by letters Sa Kha Da Ma on the plaint map, the sons of Sukkhu were held to be the owners in possession. It may be stated that the land Sa Kha Da Ma is situate adjacent to and to the north and north east of the eastern most portion of the said ancestral house of the parties. It has then been pleaded by the plaintiffs that their father Mahabir, alone and after separation from his brothers acquired the land shown by the letters Ka Kha Ga Gha on the plaint map on Patta Istmarari from its proprietor Mathura Prasad on August 6, 1925. This land is on the east and adjacent to the eastern most portion of the ancestral house of the parties. It is then pleaded that about 34 years ago the plaintiff's father Mahabir added the land shown by the letters Pa Ta Ga Da forming part of the 4 decimals of land which the three brothers had been held entitled to in the litigation with Ram Roop, to the land taken on lease as aforesaid, and from his own money he constructed the buildingsshown by the letters Pa Ta Gha Ra Ya Pha Da and denoted by letters Ksha on the plaint map and continued to be the owner in possession of the land Ka Kha Da Pa Ta Gha Ra along with the said constructions thereon up to the date of cause of action. It is then pleaded that defendant No. 1 also added the land denoted by the letters Ta the Da Ga out of the said 4 decimals of land to the north of the eastern portion of the ancestral house which had been allotted to him. It is then alleged in the plaint that on the western one-third portion of the said 4 decimals of land to which the brothers were held entitled in the litigations with Ram Roop, Thakur Din erected the constructions shown by the letters Ba Ma: that Thakur Din sold his western most portion Ja Jha Ta and Chha and the constructions shown by the letters Ga out of the said 4 decimals of the land to the plaintiffs and the plaintiffs are after the sale, owners thereof. The cause of action alleged in the plaint is that the first defendant has a powerful gang and the plaintiffs have occasionally to go out in connection with business and taking advantage of the same the defendants, in the absence of the plaintiffs, opened a new door on Aug. 22, 1962 at the place marked 'Z' in the wall Ga Gha which is the eastern most wall of the portion of the ancestral house allotted to the defendants, and also broke open the locks of the plaintiffs' building Pa Ta Gha Ra Ya Gha Da on their lease land and unlawfully dispossessed them from the same as also from the Kothari marked Chha and the Osara marked Ba Bha, on the plaint map, as also from the open land Ka Kha Da Pha Ya Ra which was also part of the land obtained by Mahabir on lease from Mathura Prasad.
3. The defendants denied the plaint allegations generally and with regard to the land said to have been acquired by Mahabir alone on Patta Istamarari from Mathura Prasad, it was alleged that it had been acquired when the family of the descendants of Sukkhu was joint. The defendants pleaded that the partition among the three brothers took place about 30 years ago; that keeping in view the number of their issues and the convenience of residence Mahabir was allotted the portion Ta the Cha Chha of the ancestral house. 'Juzo Abadi Pahi Waka Jagdishpur,' and Thakurdin who had no issue was allotted the western portion a part of which was Kaccha and part Pucca and that the house to theeast of the plaintiff's house which was partly Kaccha and partly Pucca and the rest of the Abadi to the east up to the police Chauki and the house of Chhotey and Abadi towards the South of the Ahata of Ram Roop was allotted to the share of the defendants, that is to say the entire land and Abadi to the east of the line Ma Da Cha was allotted to the share of the defendants on which they had continued in possession ever since. This plea was contained in para. 20 of the written statement. In the next paragraph the defendants pleaded that to the south of the Ahata of Ram Roop the defendants themselves constructed an Osara and Kothari quite some time ago and constructed a Kothari and Osara to the east from their own funds and have continued in adverse possession thereof as owners and have been continuously using the eastern portion and opening a door from their house. In the next paragraph 22 of the written statement, it has been pleaded by the defendants that neither the plaintiff nor Thakurdeen were ever in possession of any part of the land or Abadi to the east of the line Ma Da Cha nor they had right of any kind therein. In para. 23 of the written statement, the defendants pleaded that they had been using the eastern land by manufacturing earthen pots thereon (the parties being Kumhars' by caste) and were keeping their earthen pots burnt in the Awan in the northern Osara and had grown trees and flower plants etc., thereon. In paragraph 24 of the written statement the defendants pleaded that the eastern Kothari and Osara and the southern Kothari and Chhappar were constructed by them and they and their sons were living in different portions thereof. In para. 25 of the written statement the defendants alleged that the constructions in dispute were made at a cost of more than Rs. 2,000/-and were constructed by the defendants themselves, and the plaintiffs or their predecessors never stopped them from doing so and on these facts the suit was barred by estoppel and acquiescence. It was further pleaded by the defendants that the plaintiffs kept their Awan etc., in a part of the larger area of Pahi which was allotted to their share; that the defendant was the youngest of the brothers and was not bound by any claim of exclusive right made by Mahabir to the land in dispute, in Suit No. 286 of 1946 in the court of the Munsif City, Jaunpur, between Ram Roop v. Thakur Deen. In the end the defendants pleaded that they were in adverse proprietary possession for over 12 years on the constructions in suit and the suit was barred by limitation and the plaintiffs were not entitled to any damages. It was lastly urged that Thakur Been was very old and weak of mind and if the plaintiffs had got any sale-deed executed by him bv taking advantage of his old age, the defendants were not bound by the same.
4. The trial court framed the following 7 issues :
(1) Whether the plaintiffs are the sole owners of the construction and land in suit If not to what extent
(2) Whether the land and constructions in suit belong to the defendants Were the constructions made by them
(3) Whether the plaintiffs were entitled to any damages, if so to what amount
(4) Whether the suit is barred by estoppel and acquiescence
(5) Whether the suit is barred by time (6) Whether the suit is under-valued and court-fee paid insufficient (7) Relief.
5. Issues Nos. 1 and 2 were taken up and discussed together and on a detailed consideration of the evidence on the record it was found by the trial court that the plaintiffs are the owners of the disputed land and constructions lying thereon. Issue No. 1 was accordingly answered in the affirmative and issue No. 2 in the negative. The trial court held that the plaintiffs were entitled only to a nominal sum of Rs. 5/- as damages. On issue No. 4, the trial court found that the defendants had wrongfully dispossessed the plaintiffs within 10 days of the filing of the suit, and accordingly on issue No. 5, it was found that the suit was not barred by time. Issue No, 6 had been decided earlier and the defect of undervaluation found by the trial court was removed by the plaintiffs before commencement of the final hearing of the suit. In the result the trial court found the plaintiffs entitled to the relief of possession over the land and the constructions in suit and damages in the sum of Rs. 5/- only.
6. The lower court has on appeal reversed the trial court's decree and dismissed the suit. Besides hearing the parties the learned Civil Judge to whom the appeal must have been assigned for hearing by the District Judge, also made a local inspection of the property in suit on 5-5-1966 and placed on record hisinspection note dated 6th May, 1966. His inspection note is paper No. 20-Ka.
7. For obvious reasons neither of the parties filed any objection to the learned Civil Judge's inspection note.
8. The questions which were raised for determination of the lower appellate court have not been specifically formulated at any one place by the learned Additional Civil Judge. He has proceeded to consider the question about the title to the land acquired under the lease dated Aug. 6, 1925 (Ext. 5) executed by Mathura Prasad in favour of plaintiff's father Mahabir. The learned Civil Judge held that the partition took place in the year 1932 and that the land was acquired at the time when the three brothers were joint. He also came to the conclusion that it was joint acquisition of the three brothers who constituted a joint Hindu family at that time and decided the question in favour of the defendants. The next question considered bv the lower appellate court was whether the disputed property marked by letters Pa Ta Gha Ra Ya Dha Da was the property of the plaintiffs or the defendant. It held that this property was allotted to Mahadeo defendant at the partition and the plaintiffs could, therefore, have no claim to it. The lower appellate court then considered the dispute about the Kotharies Ba Bha and held that the plaintiffs' case with regard to them was false. On these findings, the lower appellate court reversed the trial court's decree and dismissed the suit with costs throughout,
9. Mr. R.N. Upadhyay, learned counsel for the plaintiff-appellants contended before me. (1) that the learned Civil Judge who heard the appeal acted improperly in making a local inspection of the property himself and in allowing the appeal on the basis of his own observations, which at any rate amounted to admission of fresh evidence at the appellate stage and could not be done in the present case as the conditions prescribed by Rule 27 of Order 41 were absent and reasons for doing so required to be recorded by Rule 28 of Order 41 were not recorded by the learned Civil Judge; (2) that under the Hindu Law, separate property may be acquired by a Member of a Hindu joint family individually in his own name although he is joint and at the same time holds joint property with the other members, and that in the case of acquisition of property in the individual name of a junior member of a Hindu joint family,the apparent must be presumed to be the real state of affairs and accordingly it must be presumed that the property was the self acquisition of that member individually, unless it was proved by cogent evidence that the property was acquired by joint family or for its benefit, by showing that it was acquired from the funds of the joint family or by the joint labour of the members of the joint family, for it is also the law that a joint family could acquire and hold property in the individual name of a junior member of the family; (3) that while there was no evidence whatsoever for establishing any of the said requirements, the lower appellate court has proceeded to hold that the property in suit was joint family property, solelv on the so-called admission of Mahabir in Suit No. 286 of 1946 (Exhibit A-36), which was, construed correctly, not an admission at all of the allegation that the property in suit was joint property of the three brothers, and at any rate it was equivocal and, therefore, even as an admission it could not form any basis for holding that the property in suit was joint family property; (4) that the plaintiffs had specifically and clearly alleged in the plaint that the land in suit was the self acquired property of Mahabir and that the constructions which were raised on the leasehold land acquired by him, were also made by him out of his own separate funds, but this fact had not been specifically denied in the written statement of the defendants and must, therefore, be deemed to be admitted; (5) that the findings of the lower appellate court were thus vitiated in law and liable to be set aside even on second appeal, and lastly that the findings of the trial court were preferable to, and better reasoned than, those of the lower appellate court, and the suit deserved to be decreed.
10. As to the first point, certain facts must be noticed. The first appeal before the lower appellate court was heard on 21st March, 1966, 22nd March, 1966, 23rd March, 1966 and 25th March, 1966 and judgment was reserved without fixing a date for its delivery. On 29th April 1966 there is an order recorded in his own handwriting by the learned Judge himself on the order sheet to the following effect:
'It is necessary to make a local inspection in order to understand and appreciate the evidence and the points in controversy. I shall make the local inspection tomorrow at 6 P. M.'
The local inspection was, however, not made on 30th April 1966 as the learned Judge was not feeling well, according to the note made on the order-sheet by him that day. This is followed by a note dated 5th May, 1966 to the effect that the learned Judge wanted to make the local inspection that day and the counsel and the clients were agreeable. The order-sheet dated 6th May, 1966 contains the following note :
'Inspection note placed on the record. No objection filed. Arguments heard. Judgment dictated in open court. Appeal allowed. Suit dismissed with costs throughout.'
Now, Order 41, Rule 27 empowers an appellate court to allow production of additional evidence whether oral or documentary subject to the restrictions prescribed therein and where additional evidence is allowed to be produced by the appellate court, it has to record reasons for doing so. In the context of a civil court's power to issue a commission for local inspection under Order 26, Rr. 9 and 10, it has been held by two learned Single Judges of this Court in the cases of Ram Dihal Lal v. Lakhpat Lal : AIR1932All270 and Bhawani Prasad v. Hakimullah : AIR1927All175 that the restrictions placed by Rr. 27 and 28 of Order 41 of the Civil P. C. in the matter of admitting fresh evidence in an appeal, do not apply to the power of issuing a commission for local inspection. It is possible to say that if an appellate court can issue a commission for local inspection, untrammelled by the restrictions placed by Rr. 27 and 28 of Order 41 of the Civil P. C., it may as well make a local inspection itself, instead of issuing a commission therefor. Order 18, Rule 8, C. P. C. expressly authorises a trial court to make a local inspection. The appellate court could also exercise that power but that would be in a way admitting fresh evidence. In Kessowji Issur v. G. I. P. Railway Company, (1907) 34 IA 115, on an appeal from the judgment of the Bombay High Court, their Lordships of the Privy Council found that:
'After judgment for damages had been obtained by the plaintiff in respect of injuries sustained by him in alighting from a train which had overshot the platform, the trial Judge refused an application of the defendant railway company under Section 623 of the Civil P. C. for a new trial on the ground of discovery of new matter', and that on appeal 'the Judges of the High Court, on their own suggestion, welcomed by counsel, visited the scene under conditions which they regarded as closely resembling those which attended the accident and as a result of their observations allowed the appeal.' Their Lordships of the Privy Council held that the High Court had no jurisdiction under Section 568 to review the refusal by the trial Judge, to admit fresh evidence, and, in consequence, to admit the same. The power thereunder is limited to supplying any inherent lacuna or difficulty which appears on examining the evidence as it stands, and does not relate to the discovery of new matter outside the court and that a case must be decided on the legal evidence adduced at the trial, which in that case was sufficient to establish the negligence of the defendant railway, that the question of light could not be isolated from the rest of the case and that the above procedure adopted by the High Court in the making of a local inspection in the course of hearing the appeal and basing their decision on the result of their observations could not be approved. Their Lordships made the following observations in this context (at pp. 123-24):
'The practical result was that the appeal was allowed and the suit dismissed, the case being decided, not on the testimony given at the trial as to what took place on the night of the accident but by the Judges' observation what they saw on another night altogether. Their Lordships find it impossible to admit the legitimacy of such procedure or the soundness of such conclusions. Even if the question of light could be isolated from the rest of the case, there was no ground whatever for despairing of sound results being yielded by a careful analysis of the evidence, and, in fact, this was demonstrated by the excellent judgment of the trial Judge. On the other hand, the method actually adopted is subject to the most palpable objections and fallacies.' and also observed fat p. 124) that a court could not '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 cursus curiae, and to insist on their abstaining from experiments which to some may prove too alluring to admit of adherence to legal media concludendi.'
11. Looking to the reasons for making the local inspection, as recorded bythe learned Civil Judge, namely, that it was, in his opinion, necessary, in order to understand and appreciate the evidence and the points in controversy; and looking also to the stage at which the learned Civil Judge decided to, and actually did make it, that is, after the appeal had been heard more than a month ago and the learned Civil Judge was not able to write a judgment in spite of having heard arguments for three days; I am constrained to observe that the learned Civil Judge did not act property in making a local inspection. It is not clear from the judgment of the learned Civil Judge, whether, and to what extent, the impressions gathered by him at the local inspection influenced his decision, but in face of the facts that he thought the making of the inspection necessary, and pronounced the judgment the very next day on which he made the inspection, the possibility of his decision being influenced by his own observations cannot be ruled out. It is highly probable that his findings on the points in issue which related to questions of fact, were influenced by his own observations which he made and the impressions which he gathered at the local inspection of the property in suit. Moreover, I am not at all satisfied that in a situation like the one which was created by the learned Civil Judge in the present case, the parties had a real opportunity of putting forth their own case when the learned Civil Judge heard the appeal on 6th May, 1966, after placing on recorc his inspection note of the same date and proceeded to pronounce the judgment immediately after the arguments.
12. The aforesaid considerations are, sufficient for setting aside the judgment; and decree of the lower appellate court and to remand the appeal for fresh hearing to the lower appellate court by some Judge other than one who heard the appeal. The other contentions raised by Mr. R.N. Upadhyaya, learned counsel for the appellants are not decided and in the view taken above it is not necessary to notice the contentions raised by Mr. C.B. Misra, learned counsel for the defendant-respondent in support of the judgment and decree of the lower appellate court.
13. In the result the appeal succeeds and is allowed. The Judgment and decree dated May, 6, 1966 of the court of Temporary Civil and Sessions Judge, Jaunpu in Civil Appeal No. 471 of 1964 aset aside. The appeal shall be restored to its original number and will now be heard and decided in accordance with law. The costs shall abide the result. The record of this case should be sent down at once.