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Allahabad High Court
Mohammed Ishaq And Ors. vs Balmakund Lal And Anr. on 5 December, 1928
Equivalent citations: AIR 1929 All 116, 113 Ind Cas 762
Author: Mukerji


Mukerji, J.

1. This appeal No. 1024 and the connected appeals namely 1025 to 1027, arise out of four independent suits instituted by the same parties namely the respondents who were the plaintiffs in the Court of first instance, for similar reliefs.

2. It appears that the plaintiffs claimed to be the owners of a plot of land bearing No. 1065, containing some trees. Adjoining this plot of land and to the east of it are two plots which are recorded in the village paper as graveyards. The plaintiff said that plot 1065 was not a graveyard but had been used as such, at the occasions complained of, by the defendants in the four suits, without any right. The relief sought for was recovery of possession and injunction.

3. The defence was that the plot in question had been used from time immemorial as a graveyard and the plaintiffs had no right to stop the defendants and other Mohammedans of the community from using it as such.

4. The plaintiffs adduced some documentary evidence which shows that the plot 1065 was recorded as the zamindar’s grove, while the two adjoining plots namely 1064 and 1089 were recorded as burial grounds. One witness was examined on commission, but before other witnesses could be examined, the parties, through their pleaders, agreed that if the Munsif would inspect the place, the parties would not adduce any oral evidence, leaving it open to the Court to decide the case on the documentary evidence and on the knowledge acquired by it, on inspection.

5. The Munsif did inspect the place and from what he saw he came to the conclusion that the plot 1065 was an ancient graveyard, notwithstanding the fact that the documents did not support this conclusion.

6. On appeal to the lower appellate Court, a preliminary plea was taken that no appeal lay. This objection was brushed aside and the appeals were heard on their merits. The learned Subordinate Judge, who heard the appeals, had before him the amin’s report, the amin having previously inspected the locality and made a report. The learned Judge on the strength of the amin’s report and the documentary evidence discarded the opinion entertained by the Munsif as the result of his inspection and decreed the suits.

7. In this Court two points have been urged namely, no appeal lay to the lower appellate Court and the lower appellate Court had misread and misinterpreted the notes of local inspection made by the trial Court.

8. As regards the first point, it has no force. The Munsif was not constituted an arbitrator. All that was done was to shut out the oral evidence and to substitute for it the inspection that the Munsif might make of the locality. In a similar case I held that an appeal lay: see Raghubir Saran Das v. Ram Das A.I.R. 1925 All. 348. I adhere to that opinion and hold that an appeal to the lower appellate Court was competent.

9. Coming to the merits of the case, it seems to me that the trial has been very unsatisfactory. No doubt Order 18, Rule 18, Civil P.C. permits the Judge to make a local inspection. The rule does not say what value is to be attached to the local inspection, but there is abundant authority which establishes that a decision, based, entirely, on local inspection is bound to be unsatisfactory and should not be permitted except perhaps in exceptional cases: vide Kessowji Issur v. G.I.P. Ry. Co. [1907] 31 Bom. 381, Ahmad Sahib v. Magnisite Syndicate Ltd. [1916] 39 Mad. 501, Raikishori Ghose v. Kumudini Kanta Ghose [1912] 15 C.L.J. 138, Bharat Chandra Chakrabarty v. Kiran Chandra Rai A.I.R. 1925 Calcutta series 1069, Tirath Ram v. Muhammad Abdul Rahim Shah A.I.R. 1923 Lahore series 546.

10. An examination of the present case will show how unsatisfactory has been the result of the parties, allowing the inspection of the Munsif to take the place of oral evidence. The Munsif, as the result of his inspection found himself justified in overriding the documentary evidence and the report of the amin. The Subordinate Judge found the result of the Munsif’s inspection insufficient to override the amin’s inspection report and the records of the village. The Munsif in his notes of inspection does not take the trouble of saying what he actually saw. He records only what might be called the result of his inspection, the inferences drawn by him and not the facts on which the inference is based. But it is the facts that should have been put on the record and not the mere inferences. The Munsif’s notes are to be found at p 75-C of the record of suit No. 12 of 1925 of the Court of the Munsif. I would quote the two important paras. 3 and 4 from his notes to show how Vague the record is:

Apart from the disputed graves, a very large number are scattered hither and thither over the plot 1065.

The raised portions of this innumerable graves do not exist at present but the planks with which they have been covered go to show beyond shadow of doubt that they are extremely old.

11. It will be noticed that the Munsif does not give the number of graves he observed. If he had been a witness in the case, he would surely have been questioned as to the number of graves he had observed. It will be again noticed that the learned Munsif found that the mounds over the supposed graves had disappeared. If so, it is not clear what were the indications from which the inference was drawn that there was a grave at any particular spot. The Munsif does no doubt mention that he found certain planks which were presumably used to cover the graves; but he does not say whether the planks were observable on the surface of the land, how many they were and whether they had been removed to see whether there were any graves underneath or whether simply old pieces of planks had been brought and put on the spot.

12. I am satisfied that the trial of the case has been extremely inconclusive. The lower appellate Court ought not to have proceeded to decide the case without letting the parties adduce oral evidence on the point or without sending some person for local investigation with direction to note all the facts which were likely to influence the judgment of the Court one way or the other.

13. The result is that I set aside the decrees of the Courts below and remand the suits through the lower appellate Court to the Court of first instance for disposal according to law. Parties will be at liberty to adduce oral evidence. They shall not be pinned down to the statement they made about not producing any oral evidence. The costs here and hitherto will abide the result.

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