JUDGMENT S. Padmanabhan, J. 1. In both the second appeals, same person is the appellant. He is plaintiff in O. S. No. 263 of 1980 and defendant in O. S. No. 282 of 1980 on the file of the Munsiff, Pathanamthitta. Defendants in O. S. No. 263 of 1980 are plaintiffs in O. S. No. 282 of 1980. These two suits were tried together and evidence was recorded in O. S. No. 263 of 1980. They were disposed of by a common judgment decreeing 0. S. No. 263 of 1980 and dismissing O. S. No. 282 of 1980. I will be referring to the parties as plaintiff and defendants in relation to O. S. No. 263 of 1980. Defendants filed A.S. No. 28 of 1983 against the decree in O. S. No. 263 of 1980 and A. S. No. 29 of 1983 against the dismissal of O. S. No. 282 of 1980. Both the appeals were allowed. O. S. No. 263 of 1980 was dismissed and O. S. No. 282 of 1980 was decreed. Both the second appeals were filed by the plaintiff. S. A. No. 260 of 1986 is against the appellate decision in A. S. No. 28 of 1983 dismissing O. S. No. 263 of 1980 and S. A. No. 262 of 1986 is against the decree in O. S. No. 282 of 1980 passed in A.S. No. 29 of 1983. 2. In both the suits, Item No. 1 are adjacent lands admittedly belonging to the respective plaintiffs. Item No. 1 in O. S. No. 263 of 1980 is on the northern side and Item No, 1 in O. S. No. 282 of 1980 is lying immediately to the south of it. On the western side of Item No. 1 in O. S. No. 282 of 1980, the property of PW 3 Mathai lies. Item No. 2 in O. S. No. 263 of 1980 is a strip of land 7 x 120 ft. on the eastern side of the property of PW 3, which touches the southern road lying immediately to the south of Item No. 1 in O. S. No. 282 of 1980 and the property of PW 3. Item No. 2 is claimed by the plaintiff to be a pathway, over which he claims easement right. on the eastern side of the property of PW 3, which touches the southern road lying immediately to the south of Item No. 1 in O. S. No. 282 of 1980 and the property of PW 3. Item No. 2 is claimed by the plaintiff to be a pathway, over which he claims easement right. It was for declaration of that right and injunction that he filed O. S. No. 263 of 1980 on the allegation that the defendants attempted to destroy the pathway. Item No. 2 in O. S. No. 282 of 1980 is 5 x 120 ft. of land out of Item No. 2 in O. S. No. 263 of 1980, which the defendants claimed to be part of their property, which is Item No. 1 in O. S. No. 282 of 1980. It was for declaration of their title over Item No. 2 and for putting up a boundary wall on the west of it that they filed O. S. No. 282 of 1980. Their case is that in between their property and that of PW 3, there is a narrow strip of land, 2 ft. wide, and it was never a pathway. Thus the real dispute between the parties is the ownership and possession of the defendants over Item No. 2 in O. S. No. 282 and the question whether Item No. 2 in O. S. No. 263 of 1980 is a pathway over which the plaintiffs acquired easement right. 3. It is the common case of the parties that the western boundary of the property of the defendants was destroyed shortly before the suit and the portion alleged to be lying as pathway was meddled with by putting new earth. Case of the plaintiff is that it was done by the defendants in an attempt to enclose Item No.2 in O.S. No. 282 of 1980 as part of their land by putting up a new stone wall on the west of the pathway. But the defendants say that their western boundary wall was destroyed by the plaintiff to convert 5 ft. width of their land into a pathway. '. 4. In O. S. No. 263 of 1980, a commission was issued along with the suit. The Commissioner submitted Exts. C4 and C5. He found recent tampering within a week. But the defendants say that their western boundary wall was destroyed by the plaintiff to convert 5 ft. width of their land into a pathway. '. 4. In O. S. No. 263 of 1980, a commission was issued along with the suit. The Commissioner submitted Exts. C4 and C5. He found recent tampering within a week. The Commissioner also noticed an old stone wall on the southern side of Item No. 1 in O. S. No. 263 of 1980, which disprove the existence of a 7 ft. wide pathway. The Commissioner noticed only a foot-path in plaintiff's property 1 1/2 feet wide in continuation of the alleged pathway and the remaining portions were found covered with grown up grass and old shrubs. Therefore, it is clear from Exts. C4 and 5 that a new attempt was made to widen a pathway. Even though defendants do not admit a pathway or its user, they admit that in between their land and that of PW 3, there is a narrow strip of land 2 feet wide. This portion might have been used by plaintiff for access to his land by foot. That explains the continuation of the footpath in his property 1 1/2 feet wide. If so, the recent tampering could only be by the plaintiff, who alone might have been interested in widening the pathway. That may be the reason why the Commissioner was not examined. 5. In O. S. No. 282 of 1980, at first PW 1 was deputed as Commissioner. He submitted Exts. C1 mahazar, C2 report and C3 rough sketch on 7.10-1980. The facts noted by the Commissioner, who prepared Exts. C4 and 5, were noted by him also. The stone kayyala noted by the previous Commissioner on the southern side of plaintiff's property was found recently destroyed to the extent of 7 feet wide pathway claimed by the plaintiff. A new pathway was found constructed. In continuation of the pathway, PW 1 was able to find a new pathway 72 inches wide constructed in plaintiff's property. This must be the 1. 50 feet foot-path found by the earlier Commissioner with the remaining portions covered by grass and old shrubs. The age of construction was noted as seven days. Nobody other than the plaintiff could have done it. 6. PW 7 was then deputed and he submitted Exts. C6 mahazar, C7 report and C8 plan. This must be the 1. 50 feet foot-path found by the earlier Commissioner with the remaining portions covered by grass and old shrubs. The age of construction was noted as seven days. Nobody other than the plaintiff could have done it. 6. PW 7 was then deputed and he submitted Exts. C6 mahazar, C7 report and C8 plan. Item No. 2 in O. S. No. 282 of 1980 was found on measurement to be part of Item No. 1 in that case belonging to the defendants (plaintiffs in O. S. No. 282 of 1980). Thus, from Exts. C1 to 8 and the depositions of PWs 1 and 7, it is clear that Item No. 2 in O. S. No. 282 of 1980 was never lying as a pathway and it was converted into a pathway by encroachment by about the time of suit. 7. PW 2 is the plaintiff and DW 1 is the first defendant. PWs 3 and 5 are two independent witnesses, who filed Exts.A2 and 3 affidavits supporting the case of the plaintiff. Among them, PW 3 is the owner of the western portion. PWs 4, 5 and 6 and DWs 2 and 3 are the other witnesses. PW 5 disowned Ext. A3 affidavit and said that it was prepared in a blank paper and got signed from him for some other purpose. Even then, the Trial Court believed PWs 3, 4 and 6 and accepted and acted upon Exts. A2 and 3 affidavits as substantive evidence. After 2 1/2 years of the institution of the suit, long after the lie of the properties was changed, the Trial Court made a local inspection and prepared a memorandum. The facts noted at the time of local inspection and recorded in the memorandum were used as evidence to come to the conclusion that all the three Commissioners deliberately suppressed material facts and PWs 1 and 7 gave false evidence. Exts. C1 to 8 were set aside and PWs 1 and 7 were discarded. Believing PWs 2, 3, 4 and 6 and accepting Exts. A2 and 3 affidavits, O. S. No. 263 of 1980 was decreed mainly using facts noted at the time of local inspection as items of substantive evidence and O. S. No. 282 of 1980 was dismissed. Exts. C1 to 8 were set aside and PWs 1 and 7 were discarded. Believing PWs 2, 3, 4 and 6 and accepting Exts. A2 and 3 affidavits, O. S. No. 263 of 1980 was decreed mainly using facts noted at the time of local inspection as items of substantive evidence and O. S. No. 282 of 1980 was dismissed. The Munsiff found that the easement right over the pathway claimed in O. S. No. 263 of 1980 was not established. But still the suit was decreed holding that even then, the court can mould the relief and grant a declaration that Item No. 2 is a pathway over which the plaintiff has a right of way. Learned Subordinate Judge rightly corrected the errors committed by the Munsiff and reversed the decisions by dismissing O. S. No. 263 of 1980 and decreeing O. S. No. 282 of 1980. 8. S.1 of the Evidence Act clearly says that it does not apply to affidavits presented to any court or officer. Oral and documentary evidence alone are comprehended by S.3 of the Evidence Act. Under Order XVIII R.4 of the Code of Civil Procedure, the ordinary rule is that evidence of witnesses shall be taken in open court in the presence and under the personal direction and supervision of the judge. Affidavit is not evidence under the Evidence Act. It cannot be treated as evidence unless permitted by the court, under Order XIX R.1. Such permission can only be for proof of any particular fact or facts. When S.30 is read along with Order XIX R.1, there must be an order in each case stating the particular fact or facts, which are to be proved by an affidavit. Order XIX R.2, dealing with evidence by affidavit, applies only to interlocutory applications. Affidavits could be accepted as evidence only when the parties agree or the court so order. The opposite side must have the right to controvert by a reply affidavit or by cross examination of the deponent (Gopikabai and others v. Narayan Govinda Samarth and others, AIR 1953 Nagpur 135). Affidavits could be accepted as evidence only when the parties agree or the court so order. The opposite side must have the right to controvert by a reply affidavit or by cross examination of the deponent (Gopikabai and others v. Narayan Govinda Samarth and others, AIR 1953 Nagpur 135). Proving of facts by affidavit or reading of the affidavit of any witness at the hearing must be on such conditions as the court thinks reasonable and it is also subject to the proviso to Order XIX R.1, which says that where it appears to the court that either party bona fide desires the production of a witness for cross examination and such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit (Khandesh Spinning and Weaving Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh, AIR 1960 SC 571 ), In the present case, there was no order to prove any fact by affidavit. The deponents, were examined as witnesses and one of them successfully denied the affidavit and said that it is a manipulation. He was declared hostile. Even then, both the affidavits were accepted as substantive evidence. This error was corrected by the Appellate Judge. 9. Appellant had no definite or consistent case regarding the pathway, over which he claimed the easement, which was sought to be declared. He conveniently omitted giving the survey number or other identities of that plot. He did not say who is the owner or possessor. He did not admit the title or possession of the defendants over that plot. He did not specify whether the easement right claimed is prescriptive or as of necessity, or by way of grant or customary easement. Before me, the first argument was that he is claiming possessory right over Item No. 2 and he is not claiming any easement and what he claims is only protection of his possession by a declaration and injunction. There was no such case in the plaint or evidence. The second argument was that he is claiming a customary right, which is not an easement. There is no such case also. 10. Customary right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. There was no such case in the plaint or evidence. The second argument was that he is claiming a customary right, which is not an easement. There is no such case also. 10. Customary right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. It is an accommodation over the land of another restricting the user of the servient tenement to that extent without otherwise affecting the title or possession of the servient owner. A fluctuating body cannot claim an easement. Easements are private rights belonging to particular persons and is only an accommodation in the servient tenement for the convenient enjoyment of the dominant tenement. Customary rights are public rights annexed to the place in general. Customary right is also different from customary easement. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it (Ram Chandra Sah v. Abdul Hannan and others, AIR 1984 Patna 313). Customary easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails. It can be claimed only as appurtenant to some dominant tenement and not independently as customary rights. Village pathways based on customary rights vested in the people of the locality are not public highways (Narayani v. Govindan - 1968 KLT 626 ). Custom gives rise to customary easements. But there is a vital difference between the two. Easements Act deals with customary easements, but not customary rights. Customary rights are rights arising by custom, but not attached to a dominant tenement. But a customary easement can exist only for the beneficial enjoyment of other lands because it is merely appurtenant to a dominant heritage and cannot exist in gross (Ramachandra Singh v. Partapsingh and others, AIR 1965 Rajasthan 217). On the pleadings and evidence in this case, there cannot be any question of the appellant claiming any possessory right over Item No. 2, which is independent of any easement. No form of easement is alleged or proved. The Appellate Judge was, therefore, right in his conclusions. 11. In the light of Exts. C1 to 8 and the evidence of PWs 1 and 7. No form of easement is alleged or proved. The Appellate Judge was, therefore, right in his conclusions. 11. In the light of Exts. C1 to 8 and the evidence of PWs 1 and 7. it is clear that the disputed property, which is part of the registered holding of the defendants, was attempted to be converted into a pathway along with a narrow strip of two feet wide land. In this background, there cannot be any question of believing PWs 2, 3, 4 and 6. The probable and acceptable versions are those given by the defence witnesses. But the Munsiff accepted the versions of PWs.2, 3, 4 and 6 and Exts. A2 and 3 affidavits only on the basis of facts noted by him at the time of local inspection, which he used as items of evidence. Exts. C1 to 8 were set aside and the evidence of PWs 1 and 7 rejected solely because at the time of local inspection, the Munsiff found remands of a boundary wall and some trees in a line in the portion where the plaintiff alleged that there was a kayyala. The question to be decided is not whether there was a kayyala and a row of trees inside the property of the defendants, but whether Item No. 2 was a pathway, over which the plaintiff acquired whatever right he claimed. A wall or row of trees inside the property will not have any relevance in these aspects. By re appreciation of evidence, the Appellate Judge accepted Exts. C1 to 8 and the evidence of PWs 1 and 7 and DWs 1 to 3. The facts noted by the Munsiff on local inspection, even if accepted as correct and as substantive evidence, cannot prove the existence of a pathway or disprove any of the facts noted by any of the three Commissioners. 12. Under Order XVIII R.18 of the Code of Civil Procedure, the court can, at any stage of the suit, inspect any property or thing concerning which any question may arise. When such an inspection is made a memorandum of any relevant facts observed shall be prepared and it shall form part of the records of the case. The object is to enable the court to understand the questions that are being raised and to follow and apply the evidence. Judgment cannot be based solely on such inspection. When such an inspection is made a memorandum of any relevant facts observed shall be prepared and it shall form part of the records of the case. The object is to enable the court to understand the questions that are being raised and to follow and apply the evidence. Judgment cannot be based solely on such inspection. The judge is not entitled to use the impressions formed by local inspection to contradict a witness or to decide whether the evidence of the plaintiff or defendant is true. The judge cannot substitute his own views formed by local inspection for the evidence in the case. The judge cannot perform the functions of a commission under Order XXVI R.9. 13. Local inspection can be had suo motu or at the request of parties. But parties must have an opportunity to urge their arguments on the memorandum prepared by the court. The judge must confine his notes to the facts observed without recording impressions or opinions. He is entitled to form his opinions or impressions, but if he records them, the parties must be allowed to meet those impressions. While deciding the case, weight should be given to the evidence and not to the impressions. Purpose of local inspection is not to make it a substitute for the evidence, but only to assist in its appreciation. View of the place in dispute is to enable the judge to visualise the locality and appreciate the evidence. Judge cannot convert himself into an unofficial investigator with the object of finding a judgment on what he saw and heard (Tallapragada Achutharamayya v. Ayyagari Soorappayya and another, AIR 1939 Madras 61 and Amratlal and others v. Land Acquisition Officer, AIR 1945 Bombay 302). 14. Presiding officers, who make local inspection, must realise that they are the persons to decide the cases and it may be embarrassing for the parties to contradict them, take objection to what they record and let in evidence. They may not be able to cross examine the judge. Facts noted on local inspection could be used only to follow and apply the evidence. It is not intended to bring fresh evidence or to substitute it for evidence. What is intended is only assistance in correct appreciation of the evidence. They may not be able to cross examine the judge. Facts noted on local inspection could be used only to follow and apply the evidence. It is not intended to bring fresh evidence or to substitute it for evidence. What is intended is only assistance in correct appreciation of the evidence. Collection of evidence to arrive at a subjective satisfaction in regard to the dispute is not the object (Mathew Mathai v. State of Kerala, AIR 1982 Ker. 40 and Ayisha v. Kunhathutty - 1973 KLT 57 ). Appraisal of the situation and a better understanding of the evidence alone are the objects (Nilkanth Bhave v. Gopaldas and another - AIR 1963 MP 230 ). Saving of time and assistance in following and understanding the evidence intelligently are also among the purposes (Municipal Council v. Palakkal Velayudha Menon, AIR 1931 Madras 531). Judicial and quasi judicial tribunals are bound to dispose of cases on the basis of evidence let in by parties. Gathering evidence by local inspection and making use of it for decision are highly inequitable and against fair trial (Cheekutty v. Land Tribunal - 1975 KLT 628 .) 15. Unfortunate part of it is that the learned Munsiff used Exts. A2 and 3 and the impressions gathered by him on local inspection as substantive items of evidence after correctly understanding the law on the points as his judgment indicates. Evidently, these are cases in which the appellant meddled with the property of the defendants and his own property after suit or just before suit in order to make out that there was a seven feet wide pathway. He is having other access to his property. If at all he used any portion of Item No. 2, it could be only the two feet wide space as a foot-path to his property. Even regarding that space, no right of way is established. The two second appeals have no merits. Both the second appeals are dismissed, with costs.