Judgment :- Varghese Kalliath, J. The custodian of vested forests held that 4 acres of property in R.S.6/1 of Kavilumpara village is vested forest. The Tribunal where the respondent herein filed an application under S.8 of the Private Forests (Vesting & assignment) Act. 1971 (hereinafter referred to as' the act) found that the area in question is a private forest and that the applicant is not entitled to claim exemption under S.3(2) of the Act. The application filed by the respondents herein was dismissed. The respondents filed M.F.A. 261 of 1979 before this Court. This Court remanded the case for fresh consideration. When remanding the case this Court allowed the applicant to adduce evidence to establish that the area in question was/ is under personal cultivation and that it is not liable to be vested under the Act. After the remand. the respondents herein adduced fresh evidence. The Tribunal after considering the evidence in the case found that the respondents are entitled to the benefits under S.3(2) of the Act. and thus allowed the application. The Government of Kerala and the Custodian of Vested Forests have filed this appeal. 2. From the narration of facts. it is clear that the only question that has to be considered in this case is as to whether the respondents are entitled to exemption under S.3(2) of the Act. The disputed land is only 4 acres in extent. The respondents got title to this land by virtue of Ext.P1. It is an assignment in favour of the respondent. It is dated 9-4-1974. The respondents have produced the earlier title deeds in respect of the property. Ext.P2 is the registration copy of a kunhikannan deed in respect of the property in question. Ext.P2 is dated 8-7-1954. In this document it is clearly stated that the document is executed for the purpose of cultivating the land. There is indication in the document that there was already cultivation in the land. Further the executant has given the land- for cultivation for 12 years. The respondents examined P.W.2 who is a 'predecessor-in-interest of the disputed land. He deposed before the Tribunal that he kept possession of the property in the year 1963 and he made boundary Kay alas and cultivated the land with plantains and tapioca. P.W.3 is the 1st respondent. He also stated that the land was cultivable land 1(1 to 20 years back. He deposed before the Tribunal that he kept possession of the property in the year 1963 and he made boundary Kay alas and cultivated the land with plantains and tapioca. P.W.3 is the 1st respondent. He also stated that the land was cultivable land 1(1 to 20 years back. and that he had cultivated crops like tapioca. plantains and ginger. R.W.2 is the Range Officer. He deposed before the Tribunal that the property is bounded by kayyala and that there is indication of the cultivation of tapioca made prior to his visit. A definite question was asked as to whether he can deny the fact that the respondents were cultivating the land with tapioca or not. He was not able to give a negative answer. The Tribunal. after taking the evidence of P. Ws. 2 and 3 and R.W.2 felt that it is necessary to make a personal inspection of the property. The law permits such a local inspection by the Tribunal. But the object of such personal inspection should not be for collecting evidence and it can be only for understanding the evidence already let in by the parties. This aspect of the matter was considered in State of Kerala v. Kunhiraman (1990 (1) KLT382). 3. Government Pleader submitted that the Tribunal went wrong in relying on the notes of inspection and not on the evidence adduced in the case. We do not think that this submission is correct. S.12 of the Act gives power to Forest Tribunal to exercise all powers of the civil court while trying a suit under the Code of Civil Procedure in respect of the matters enumerated therein. Clause (e) is concerned with "inspecting any property or thing concerning which any decision has to be taken." The Civil Procedure Code contains a specific provision granting power to the court to inspect any property or thing concerning which any question may arise. This power can be exercised by the court at any stage of the suit. It is also provided that when the court makes such an inspection of any property or thing. it shall. as soon as may be practicable. make a memorandum of any relevant facts observed at such inspection and such memorandum shall form part of the record of the suit. The relevant provision is Order 18. Rule 18 C.P.C. Of course. It is also provided that when the court makes such an inspection of any property or thing. it shall. as soon as may be practicable. make a memorandum of any relevant facts observed at such inspection and such memorandum shall form part of the record of the suit. The relevant provision is Order 18. Rule 18 C.P.C. Of course. it is only stated in the rule that the memorandum of inspection notes prepared by the Presiding Officer of the Court shall form part of the record. In deciding the case. how the impressions gained and data collected by the court on personal inspection can be used. has not been made clear by any provisions in the C.P.C. There are several decisions on this point. 4. In an old decision of the Patna High Court reported in AIR 1935 Patna 457. the Patna High Court said that a judge should undertake local inspection for the purpose of understanding evidence and not to contradict a legally admitted evidence. In 1975 KLT 628 (Cheekutty. Land Tribunal. alangad) a Division Bench of this court has also made observations of like nature thus: "The purpose of local inspection by a court is not to use any material gathered by it or the impression gained by such local inspection in deciding the case one way or the other. That should depend upon the evidence in the case." 5. The above observations are not of much help as a guidance. But. it makes one fact clear that a judge is not obliged or rather banned from testing the evidence or to collect facts to contradict the legally admitted evidence. If in a given case. the State has adduced evidence for the purpose of establishing the fact that the property in question is a forest. by proving the fact of wild forest. tree growth in the property in question. it is relevant evidence in the case. which would influence substantially the decision of the case. If at one stage when the Tribunal makes an inspection of the property for good reasons and if the Tribunal finds that there is no wild forest tree growth in the area in question and also there is no indication that there was forest tree growth in the property. can the court ignore it on the principle that the local inspection should not be used to contradict the legally admitted evidence. can the court ignore it on the principle that the local inspection should not be used to contradict the legally admitted evidence. We feel that such an understanding of the law will be against realities and it will be superficial and hyper technical. 6. The prime devoir of the court is to do justice between the parties and in that process if a court forgets in dubious facts. which it has seen by its naked eyes. on local inspection. we feel that it would be an abjurement and abnegation of reality. Whenever the court moves away from realities. on account of technicalities it would certainly loose confidence and faith of the people. who have entrusted that great duty of dispensation of justice between the parties. We believe that "the path to justice must be kept clear of obstructions which would impede it." 7. True. the observations we have quoted can be justified on the ground that no one can testify including the Presiding Officer of the court on any question of fact without subjecting himself to oath and affirmation and also without giving an opportunity to the person who will be affected by the testimony to cross examine the person in question. The Supreme Court had occasion to consider this question exhaustively in AIR 1971 S.C. 2540 (Ugam Singh v. Kesrimal). The Supreme Court was considering a question of identity of an idol. The dispute was with regard to which sect the idol in dispute belonged. It was contended that the trial court decided the issue only on what it found on its inspection of the idol and temple. It was also strongly objected to on the ground that the observations of the Presiding Officer on his inspection of the idol and the temple cannot be taken as evidence in the case. without it being subjected to cross examination. The Supreme Court observed that when the trial judge gave his finding remarked that the evidence led by the plaintiffs appears to be correct and that the said observations would show that the evidence on record was an element in the formulation of the trial court's judgment buttressed by the observations of the learned judge during the site inspection. Ultimately. the Supreme Court said that "the judgment in our view is not based solely on the result of personal inspection made by the trial judge. Ultimately. the Supreme Court said that "the judgment in our view is not based solely on the result of personal inspection made by the trial judge. which inspection was for the purposes of understanding the evidence in the' case and has been so used by the trial judge." 8. The Karnataka High Court has taken a middle path when it said in AIR 1962 Mysore 17 (7. Krishnaswami v. Dundappa) that "the observations of a judge at the time of inspection can be used only for the purpose of better following and understanding the evidence adduced in the case or to test its accuracy. But it is not the purpose of such inspection to be substituted as evidence in the case or to contradict the evidence placed before court and make it the foundation of the judgment." We say that the Karnataka High Court has taken a middle path. for it has been made clear in the above observation that the purpose of local inspection can be to understand the evidence adduced in the case or test its accuracy. When it is said that the evidence collected by local inspection can be used for the purpose of testing the accuracy of evidence. already given it is possible to show that in certain cases. it will contradict the evidence and in certain cases. the evidence will have to be discarded. since totally a different picture might have been obtained on local inspection than what has been drawn by the witnesses before the court in their deposition. 9. We feel that we are obliged to make a deeper investigation in the matter. Of course. we know that we are bound by the Division Bench decision of this court in 1990 (l) KLT 382 and also the observations of the Supreme Court in AIR 1971 S.C.2540. We always remember that for proper functioning of the hierarchical system of courts. it is necessary for each lower tier including the High Court to accept loyally the decisions of the Division Bench and of the higher tiers - Full Bench and Supreme Court. Now. keeping this salutary principle in our minds. we shall refer to certain English decisions on this point. 10. Lord Alverstone C.J. in London General Omnibus Co. Ltd. v. Lavell (1901) 1 Ch. 135 made observations unduly restricting the function of a view by a judge (local inspection). Now. keeping this salutary principle in our minds. we shall refer to certain English decisions on this point. 10. Lord Alverstone C.J. in London General Omnibus Co. Ltd. v. Lavell (1901) 1 Ch. 135 made observations unduly restricting the function of a view by a judge (local inspection). The Court of Appeal in (1956) 2 Q.B. 534 (Buckingham v. Daily News Ltd.) commented the judgment of Lord Alverstone C.J. thus:- "Everyday practice in these courts shows that. where the matter for decision is one of ordinary common sense. the judge of fact is entitled to form his own judgment on the real evidence of a view. just as much as on the oral evidence of wit nesses." Lord Parker in the same judgment has written a very elaborate judgment. wherein His Lordship has quoted for reference the County Court Practice under Order 23. Rule 14 of the Country Court Rules. It is thus: "A view is merely for the purposes of enabling the tribunal to understand the questions raised and to follow and apply the evidence. and must not be used to supply or take the place of evidence." It is also stated that there is a similar note in the Annual Practice under Order 50. rule 4 of the Rules of the Supreme Court. Commenting the notes in the Annual Practice and the County Court Rules. Lord Parker said: "It seems to me. however. that (hat note. read literally goes much too far. In the examples referred to above the judge is. in a sense. treating what he saw as part of the evidence. and in my view it was part of the evidence; and I entirely agree with what was said by Denning L.J. in Goold v. Evans & Co. (1951) 2 T.L.R.1189. Indeed it is just as much a part of the evidence as if the machine had been brought into the well of the court and the plaintiff had there demonstrated what took place." In the same judgment. Lord Parker said that the trial judge is entitled to take into consideration the impression he had formed in assessing the weight to be given to the value of evidence given by any witness. 11. Birkett L.J. in the same decision (1956) 2 Q.B. 534. observed that in cases which require no expert evidence. a judge was entitled to follow his own impressions formed at a view. 11. Birkett L.J. in the same decision (1956) 2 Q.B. 534. observed that in cases which require no expert evidence. a judge was entitled to follow his own impressions formed at a view. and to give judgment accordingly. Birkett L.J. quoted what Lord Macnaghten said in Payton & Co. Ltd. v. Snelling, Lampard& Co. Ltd. (1901) A.C. 308 and found support from the quote His Lordship made in the decision. Lord Macnaghten said: "The judge. looking at the exhibits before him and also paying due attention to the evidence adduced. must not surrender his own independent judgment to any witness." Birkett L.J. said that what has fallen from Lord Macnaghten is very high authority. 12. Denning L.J. in (1951) 2 T.L.R.1189 (Goold v. Evans & Co.) said: "It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and. further. the evidence in which he acts must be given in the presence of both parties. or. at any rate. each party must be given an opportunity of being present. Speaking for myself. I think that a view is part of the evidence. just as much as an exhibit. It is real evidence. The tribunal sees the real thing instead of having a drawing or a photograph of it." (emphasis added). 13. We may also unburden a feeling in our mind that a Presiding Officer of a Tribunal or a judge of a court must be given the freedom to act according to his feelings about the case. Of course. he must articulate this feeling in accordance with law and the precedents on the subject. In a given case if a witness A deposes on oath that there was no tree at all in the suit property. which is a controversial point and the Presiding Officer inspects the property after giving notice to the contesting parties. with full identification of the property involved in the case and in their presence and finds a number of old trees in the property and makes a memorandum of his inspection and a note of this fact. what is the rationale. justification. justice and truth in asking him not to say what he has seen when he is dealing with the evidence of that witness A who has said that there are no trees in the property. Of course. in the way. what is the rationale. justification. justice and truth in asking him not to say what he has seen when he is dealing with the evidence of that witness A who has said that there are no trees in the property. Of course. in the way. in which the provision has been interpreted. would compel the Presiding Officer not to be forthright and straight forward in his approach. the qualities which. according to us. a judge must possess in abundance. and make a circumlocution and discursion and say he is understanding the evidence of the witness A and discarding it finding some trivial points against him. We feel along with Lord Denning "a view is part of evidence. just as much as an exhibit. It is real evidence." 14. If we may say so. this is an area where a fresh look is necessary. The subtleties and complexities involved in this small area of judicial functioning highlight the necessity to define by statutory intervention with much fuller specification. the role of a judge in this area of operation. We may say as Holt C.J. once said" I have stirred these points which wiser heads in lime may set lie". 15. In this case. the Tribunal has kept in mind the scope and width of local inspection permitted by law as expounded by the decisions of this court and Supreme Court. when deciding the case by the Tribunal. The Tribunal has not based its findings on the notes of inspection it made at the time of inspection. In fact. the Tribunal has not adverted to in the judgment any fact noted in the notes of inspection. The Tribunal has rightly relied on the evidence of R.W.2 and the oral evidence of the other witnesses. 16. Ext.P2 gives very supporting evidence to say that the property was under cultivation. All the circumstances lead to this inference. Be that as it may. a civil case has to be decided on the preponderance of probability based on the evidence. We see no error in the finding of the Tribunal in holding that the property was under personal cultivation. There is no merit in this appeal. The appeal is only to be dismissed. We do so. No order as to costs.