1. This appeal is directed against the judgment & decree of Additional District Judge Muzaffarabad dated 25.05.2008, whereby, the judgment and decree of Senior Civil Judge Muzaffarabad dated 30.11.2004 was maintained.
2. Brief facts of the case are, that respondents 1 to 6 filed a declaratory suit cum permanent injunction and for cancellation of sale-deed titled Afrasiab Vrs. Kh. Zahoor Ahmed, executed on 13.09.1997, regarding land number Khasara 17 (new), measuring 6 marlas, situated at Jalalabad Muzaffarabad, in the Court of Senior Civil Judge Muzaffarabad on 19.05.2000. It was alleged in the plaint that plaintiffs are owners of the suit land on the basis of unregistered sale-deed in favour of Muhammad Hussain husband of Respondent No, 1 and father of Respondents 2 to 6. It was further alleged that the sale-deed executed in favour of Kh. Zahoor Ahmed, appellant herein, by Afrasiab Shoukat dated 13.09.1997 and entries of Revenue record on the basis of said sale-deed are inoperative against the rights of plaintiffs and the sale-deed is liable to be cancelled and entries of revenue record should be corrected in the name pf Plaintiffs/Respondents 1 to 6 by the revenue authorities.
3. The suit was contested and appellant & proforma respondents submitted written statements in the trial Court on 22.07.2004, in which they negated the allegations of the plaint and alleged that Kh.
4. Zahoor Ahmed is owner of the suit land on the basis of sale-deed executed on 13.09.1997 and plaintiffs have no title regarding the suit land and they have also no locus-standi to file the suit.
5. After framing issues, the parties were ordered by the Court to produce the evidence on 07.08.2004.
6. The evidence of the plaintiffs was closed on 09.10.2004 and the defendants were ordered to produce the evidence on 27.11.2004. On 27.11.2004, the learned Senior Civil Judge Muzaffarabad recorded the statements of one of the plaintiffs Perveen Bibi and Abdul Waheed (brother of Kh.
7. Zahoor Ahmed) for spot inspection and to decide the suit. In the light of said statements, the learned judge visited the spot and recorded statements of witnesses of plaintiffs only and decreed the suit in favour of respondents 1 to 6 on 30.11.2004. Feeling aggrieved by the judgment and decree of Senior Civil Judge Muzaffarabad, appellant preferred an appeal before District Judge Muzaffarabad which was dismissed on 25.05.2005, hence this appeal.
8. The learned counsel for the appellant reiterated the grounds of appeal and further argued that Judgment and decree of both the Courts are against the facts and law. He further argued that Abdul Waheed was not appointed as power of attorney by appellant and he had no right to get record his statement on behalf of appellant for spot inspection and to decide the case. He also argued that Abdul Waheed was not party in the suit. The trial judge has committed illegality to make spot inspection and to decide the suit on the statement of Abdul Waheed without affording opportunity to appellant to lead the evidence in respect of his claim. He further argued that District Judge has wrongly dismissed the appeal of appellant.
9. The learned counsel for the respondents defended the judgments and decrees of both the lower Courts. He further argued that both the Courts have committed no illegality and their judgments and decrees are according to facts and law. He further argued that a request made by Abdul Waheed to the trial Court for spot inspection and to decide the case accordingly was not objected by the appellant before the trial Court and at this stage he is not in position to raise this point and nor he can back out from his offer. The judgment and decree of District Judge dated 25.05.2005 requires no legal interference.
10. I have heard the learned counsels for the parties and gone through the record carefully.
11. In order to determine the real controversy of the parties in the light of argument advanced by the learned counsels for the parties is based on the following points:--
1. Legal value of statement of Abdul Waheed.
2. Judgment based on spot inspection by learned Senior Civil Judge is correct or not?
12. After perusal of record, it is evident that learned Senior Civil Judge Muzaffarabad carried spot inspection in the light of statements recorded on 27.11.2004 by one of the plaintiffs named Perveen Bibi and Abdul Waheed Power of Attorney of Kh. Zahoor Ahmed. At the time of recording of statements for local inspection on 27.11.2004, Abdul Waheed got recorded his statement before the Court on the basis of two points; firstly as power of Attorney of appellant and secondly as real brother of appellant. It appears from the said statement, which is at page-60 of the file of trial Court, that word "Mukhtar" has not been written in consequence of the line. The word "Mukhtar" is written on the above of the line which creates serious doubt. Here I would like to reproduce the relevant law Order 3 Rules 1 & 2 of CPC, which reads as under:-- 1. "Appearances, etc., may be in person, by recognized agent or by pleader--Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the parity in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.
13. 2.Recognized agents.--The recognized agents of parties by whom such appearance, applications and acts may be made or done are--
(a) persons holding powers-of-attorney, authorizing then to make and do such appearance, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or ,done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."
14. The plain reading of the above mentioned relevant law shows that it permits the performance of acts on behalf of the parties by their recognized agents and they are specific persons to be among others. "The persons holding power of attorney authorising them to do such acts on behalf of such parties". The word party as defined will include his authorized agent in terms of the above mentioned provision of CPC. According to Section 2 sub-section (21) of Stamp Act, definition of power of attorney is as under:--
(21) "Power-of-attorney". "Power-of-attorney" includes any instrument (not chargeable with a fee under the law relating to Court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it:"
15. It is crystal clear from the above prescribed law that the word power of attorney as defined in sub- section (21) of Section-2 of Stamp Act includes any instrument empowering a specified person to act for and in the name of that person. Abdul Waheed was not party in the suit nor he was recognized agent according to relevant law and nor his power of attorney is available on the file of the Court. Due to this reason he was not authorised to act on behalf of the appellant and his statement dated 27.11.2004, and request for local inspection to the Court and decide the case carries no legal value. The Court has committed illegality to make local inspection on the statement of that person who was stranger in the file and was not authorised to do any act on behalf of the appellant. There is no request orally or written available on the file by the learned counsel of the appellant in the light of order sheet of the Court dated 27.11.2004. The learned counsel was present before the Court, why the Court did not record the statement of the counsel?
16. There is no legal value attached to the statement of Abdul Waheed has no legal value. Now I would like to deal with the next question that whether the judgment of the trial Court which is based on local inspection is correct or not? Before dealing with this point I would like to reproduce Order 18 Rule 18 of CPC which reads as under:--
18. Power of Court to inspect.--The Court may at any stage of a suit inspect any property or thing concerning which any question may arise."
17. It is true that the above mentioned relevant law gives wide powers to the Court to make local inspection of any suit property at any stage of the suit. The Court can make local inspection only for the purpose of understanding the controversy and the evidence or for its proper appreciation.
18. But a local inspection cannot be allowed to replace the legal evidence and a judgment cannot be based merely on the result of local inspection unless the parties agree to adopt such a way. As stated earlier that the statement of Abdul Waheed has no legal value because the parties were not agree to adopt such a way for judgment. It is pertinent to note that judgment of the trial Court was announced on 30.11.2004. The inspection note which was made by the learned civil judge on 30.11.2004 (which is available on page 61 of the file of trial Court) while the order sheet shows that local inspection carried by learned civil judge on 29.11.2004. The report made by Patwari Muhammad Shabir Awan which is at page 62 of the file of trial Court, the date of preparation of report is 04.12.2004. Copy of Misl-e-Haqiat 1998-1999 and Khasra Gardawari are prepared on 03.12.2004 and 04.12.2004, respectively, and the patwari has got recorded his statement before the Court on,30.11.2004.
19. Another point which is involved in this case is that the learned Civil Judge has recorded the statements of five witnesses including one of the plaintiffs at the time of spot inspection but the opportunity of cross examination was not provided to appellant or his counsel. In this case the statements recorded by the learned Civil Judge during course of inspection have no evidentiary value because persons whose statements were recorded are subject to cross-examination or the opposite party should be given opportunity to do so. This course has not been adopted by the Court. As stated earlier that the case was fixed for evidence of appellant/defendant on 27.11.2004 but the learned civil judge, without giving opportunity to the appellant to produce the evidence, made local inspection without the consent of appellant and decide the case. The course adopted by the trial Court was not legal and his judgment was based on the impression of local inspection, which was also illegal.
20. For the reasons listed above, this appeal is accepted and the judgments and decrees of both the Courts are set-aside and the case is remanded to Senior Civil Judge Muzaffarabad to decide it in legal manner as indicated above.