Mitter, (Offg.) J.
1. We are of opinion that in this case the judgment of the lower Appellate Court cannot stand.
2. The question between the parties was whether the plaintiff was entitled to have the alang or singha, marked B.C. in the Munsif's map, removed, the plaintiff's allegation being that it was placed there in the month of August 1879 by the defendants, who are the proprietors of mouzah Rathni.
3. The plaintiff alleges that the land upon which the alang has been put up belongs to him, being part of a jagir of eight bighas within mouzah Titaria.
4. The defendants do not deny that the alang or singha B.C. is upon a piece of land appertaining to mouzah Titaria, but they allege that this piece of land does not appertain to the plaintiff's jagir of eight bighas, but to the khalisa land of mouzah Titaria; that it is really a part of an alang or singha of an har called ahar uparata, and that it has been in existence for more than twenty years.
5. The Munsif came to the conclusion that the alang or singha B.C. was constructed upon land not belonging to the plaintiff's jagir, but to the khalisa land of mouzah Titaria, and that the alang or singha had been in existence for more than twenty years as a protection to the band of a portion of ahar uparata. He accordingly dismissed the plaintiff s suit.
6. It appears that the Munsif visited the locality, and in his judgment he relies upon certain facts which he says came under his observation when he was on the spot. This local investigation was held by the Munsif before the issues in the case were settled. Some of these facts, which are not proved by any evidence, but which came, according to the Munsif's judgment, under his personal observation while he was on the spot, appear to us to have a material bearing upon the questions at issue between the parties.
7. The District Judge on appeal has reversed the decisions of the Munsif. He has come to the conclusion that the land upon which the disputed alang B.C. is situated appertains to the plaintiff's jagir. He is also of opinion that the defendants have failed to prove that this alang or singha B.C. has been in existence for more than twenty years. He bases his decision mainly upon the oral evidence on the record.
8. As regards the result of the investigation held by the Munsif, the District Judge seems to have excluded it entirely from his consideration. It is not very clear from his judgment whether he means to hold that, before the result of that investigation could be taken into consideration, it was necessary that the Munsif should be examined as a witness in the case. However that may be, it is clear from his decision upon this point that he has entirely excluded the result of the Munsif's investigation from his consideration. In his opinion it was not a material which he was legally competent to take into consideration in arriving at a conclusion in this case.
9. We are of opinion that his decision upon this point is not correct. There are many decisions of this Court in which results of investigations, made by the Judges personally, have been made the basis of judicial conclusions. In some of these cases it has been pointed out that it is the best material upon which a decision can rest. Looking at the language of Section 392 of the Code of Civil Procedure it is clear that the result of a, local investigation, made by the presiding judicial officer, is a material which may be taken into consideration in arriving at a conclusion upon disputed questions of fact. Section 392 says: In any suit or proceeding in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, and the same cannot be conveniently conducted by the Judge in person, the Court may issue a commission to such person as it thinks fit.' It is clear from this that the delegation of the duty of elucidating any matters in dispute by local investigation is to be made only when the presiding Judge cannot conveniently conduct the enquiry himself.
10. The District Judge also appears to have been of opinion that the result of the enquiry, conducted by the Munsif in this case, could not be considered by him because it was not evidence according to the definition of that word in the Evidence Act. He is perhaps right in this view. The definition of the word 'evidence,' as given in the Evidence Act, means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court: such documents are called documentary evidence.
11. The result of a local enquiry by a presiding judicial officer does not come under either of these two heads; but the District Judge has not taken into consideration the definition of the word 'proved' which comes immediately after. It is to this effect: 'A fact is said, to be proved when after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.'
12. It would appear, therefore, that the Legislature intentionally refrained from using the word 'evidence' in this definition, but used instead the words, 'matters before it.' For instance, a fact may be orally admitted in Court. The admission would not come within the definition of the word evidence as given in this Act, but still it is a matter which the Court before whom the admission was made would have to take into consideration in order to determine whether the particular fact was proved or not.
13. But though we are of opinion that the District Judge was in error in not taking into consideration the result of the Munsif's local investigation, we entirely agree with him in his remark that the Munsif ought to have put upon paper the result of his investigation when it was completed. It is very desirable that judicial officers conducting local investigations should place upon record the results of their investigations as soon as they are completed, so that the parties may have an opportunity of seeing what the facts are which the judicial officers consider to be established by the local investigations.
14. But in this case we find that none of the facts upon which the Munsif relied as coming under his personal observation while the local investigations were being conducted, or objected to in the petition of appeal filed by the defendants in the Court below as being in correct. In referring to this circumstance we do not by any means wish it to be understood that we consider that those facts which the Munsif says came under his personal observation are to be taken as absolutely correct. All that we say is that the District Judge should not have excluded them from his consideration. Whether there are good grounds for accepting the result of the local investigation as correct, or rejecting it as incorrect, are matters with which we have nothing to do. It is for the District Judge to decide these questions.
15. For these reasons the rule will be made absolute; the order of this Court made under 551 of the Code of Civil Procedure will be set aside; and this appeal will be decreed, the decree of the lower Appellate Court being reversed; and the case remanded to that Court for re-trial.
16. The costs will abide the result.