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2007 DIGILAW 503 (KAR)

VISHWOTHAMA THEERTHA SWAMIGAL v. H. BALARAJ

2007-08-10

S.ABDUL NAZEER

body2007
S. ABDUL NAZEER, J. ( 1 ) PETITIONER has called in question the order passed by the Civil judge (Sr. Dn. ). Karwar, on I. A. No. 5 dated 14. 9. 2006 in R. A. No. 40/1999 whereby the lower appellate Court has allowed the application filed by the respondent under Order 18 Rule 18 of the Code of Civil procedure. ( 2 ) PETITIONER was the plaintiff in O. S. No. 66/1987 on the file of the Civil Judge (Jr. Dn. ). , Karwar. The suit was for permanent injunction restraining the defendant/respondent or his family members or any person claiming on his behalf from entering or trespassing into the suit land or interfering with his peaceful possession, occupation and enjoyment of the suit land i. e. Sy. No. 23/1 measuring 8 acres 24 guntas of Belur village in Karwar Taluk. It is the case of the defendant that he has been in possession and enjoyment of two acres of land out of the above 8 acres 24 guntas of land. It is also his case that the area in his possession consists of a house constructed by him, a well and standing trees and that he has fenced the said land. It was his contention that he has perfected title to the said two acres of land by adverse possession. The court below decreed the suit on 4. 3. 1999. Feeling aggrieved by the said judgment and decree, the respondent filed the appeal in r. A. No. 40/1999 before the lower appellate Court. The lower appellate Court by its order dated 19. 12. 2002 set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for fresh consideration. The said order was challenged by the petitioner herein before this Court in MSA No. 109/2003. This Court by the order dated 2. 6. 2005 set aside the said order and remitted the matter to the lower appellate Court with a direction to pass fresh order on merits in accordance with law. The operative portion of the said order is as under: "in the circumstances, this appeal is allowed. The judgment and decree passed by the Civil Judge (Sr. Divn. ). , Karwar in R. A. 40/1999 dated 19th December 2002 is hereby set aside. The operative portion of the said order is as under: "in the circumstances, this appeal is allowed. The judgment and decree passed by the Civil Judge (Sr. Divn. ). , Karwar in R. A. 40/1999 dated 19th December 2002 is hereby set aside. The lower Appellate Court is directed to reconsider the matter afresh after hearing both the advocates for the parties on merit and in accordance with law. " ( 3 ) AFTER remand, the respondent filed two applications. I. A. No. 4 filed under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Court Commissioner for spot inspection of the suit land. The second application-I. A. No. 5 is under Order 18 Rule 18 of the Code of Civil Procedure requesting the Court to inspect the suit property. The lower appellate Court has rejected I. A. No. 4 and has allowed I. A. No. 5. Feeling aggrieved by the order on I. A. No. 5, petitioner has filed this writ petition. ( 4 ) SRI Vigneshwar S. Shastri, learned Counsel appearing or the petitioner would contend that the suit schedule property is atleast 30 kms. away from the Court. Therefore, it is not feasible for the lower appellate Court to inspect the property. It is further contended that the Court cannot make spot inspection with a view to collect the evidence in favour of the respondent. It is further submitted that the lower appellate Court ought to have decided the appeal on the available materials on record. It is further argued that the impugned order is contrary to the direction of this Court in MSA No. 109/2003 dated 2. 6. 2005. ( 5 ) ON the other hand, learned Counsel for the respondent has justified the impugned order. ( 6 ) I have carefully considered the arguments made at the bar and perused the materials placed on record. ( 7 ) ORDER 18 Rule 18 of the Code of Civil Procedure provides for the power of the Court to make local inspection. ( 6 ) I have carefully considered the arguments made at the bar and perused the materials placed on record. ( 7 ) ORDER 18 Rule 18 of the Code of Civil Procedure provides for the power of the Court to make local inspection. It states that the court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the Court inspects 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 a part of the record of the suit. The apex Court in UGAM SINGH and ANOTHER vs KESRIMAL and others AIR 1971 SC 2540 has held that inspection made under Order 18 Rule 18 of the Code of Civil Procedure is only for the purpose of understanding the evidence. The judgment cannot be based solely on the result of personal inspection. This Court in B. T. KRISHNAPPA vs PRINCIPAL munsiff, KOLAR and OTHERS AIR 1980 KAR 106 has held that Order 18 Rule 18 of the Code of Civil Procedure is intended to advance the cause of justice and to avoid unnecessary evidence being adduced in the case. It has been further held that the record made of the facts observed during the course of observation enables the Court to arrive at a correct decision. It has been held as under: ". . . . . . . . . . . . . . . . . . . . . . . . This provision is intended to advance the cause of justice and to avoid unnecessary evidence being adduced in the case. Further, the record made of the facts observed during the course of observation enables the Court to give its verdict in conformity with the real nature of things. Thus the inspection by the Court in cases which are required to be decided with reference to certain things alleged to exist will greatly help the Court to arrive at a correct decision. If the Court acts arbitrarily during the course of inspection, it is always open for correction either in the appeal preferred against the decree passed in the suit or in revision in deserving cases. . . . . . . . . . . . . . . . . . . . . If the Court acts arbitrarily during the course of inspection, it is always open for correction either in the appeal preferred against the decree passed in the suit or in revision in deserving cases. . . . . . . . . . . . . . . . . . . . . " ( 8 ) THUS, it is clear that the judgment of the Court should not be based solely on the observation made by the Court on local inspection. The inspection by the Court can only be for the purpose of understanding the evidence given by the witnesses. In other words, the observation of the 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. Therefore, there is no merit in the contention of the petitioner that the local inspection is made for collection of evidence in favour of the respondent. ( 9 ) AS noticed above, the suit was for bare injunction on the ground that the petitioner/plaintiff is in possession of the entire 8 acres 24 guntas of land. The specific contention of the respondent/defendant is that he has been in possession of 2 acres of land out of 8 acres 24 guntas of the suit schedule property. It is his further case that the said 2 acres of land consists of his house, well, standing trees, etc. , and that he has fenced the said 2 aces of land. Therefore, he made an application under Order 18 Rule 18 of the Code of Civil Procedure for inspection of the suit schedule property by the Court. The lower appellate Court on a proper consideration of the facts and circumstances of the case, has allowed the application. It is also clear from the order in MSA No. 109/2003 that this Court has directed the lower appellate Court to consider the case on merits in accordance with law. Therefore, it cannot be said that the impugned order is contrary to the decision of this Court. ( 10 ) HAVING given my anxious consideration to the arguments of the learned Counsel made at the bar, I do not find any merit in this writ petition. In the result, writ petition fails and it is accordingly dismissed. No costs. --- *** --- . The Laws_Super