1. ' This second appeal by the vendee arises out of pre-emption suit. Trial Court decreed the suit in favour of the pre-emptor, vide, its decision dated 26-9-1966. Appeal preferred against the decree was dismissed on 10-3-1967, by District Judge, Jhelum.
2. ' Vide deed of sale registered on 16-12-1964, Muhammad Azam sold 2 Kanals 15 Marlas of land from Khasra 190 situate at Mauza Chakora, Tchsil Jhelum to Mst. Asia Begum, petitioner, for Rs.3,300. Sale was given effect to in the revenue papers through Mutation 383, sanctioned on 13-5-1965. Ghulam Ahmad, as co-sharer and, owner of the estate, pre-empted the sale, and, brought a suit against the vendee, in the Court of Civil Judge, Jhelum. Suit was resisted and it was pleaded that it was barred by limitation. On merits, it was pleaded that property in suit was purchased for Rs.3,300 which price was fixed in good faith, and was actually paid to the vendor. In regard to superior right of pre-emption, it was alleged that vendee was owner of the estate and was also Yakjaddi of the vendor. Pleadings gave rise to the following issues:-
(1) Whether the suit is barred by limitation? O.P.D.
(2) Whether the plaintiff has a superior right of pre-emption? O.P.P.
(3) Whether the sale price was valued at Rs.3,300 in good faith or actually paid ? O.P.D.
(4) If issue No.3 is not proved in the affirmative, what is the market value of the suit land? O.P.
3. Parties.
(5) Whether the defendant is entitled to the expense incurred in the registered deed in respect of the suit property? O.P.D.
(6) Relief.
4. ' It appears from the record that objections in regard to issues 1 and 5 were not pressed and withdrawn by the defendant on 24-9-1966, and the pre emption suit proceeded to its trial on the remaining issues viz. superior right of pre-emption and the price payable for the land in suit. It was conceded that none from the parties was related to the vendor. It was also not disputed that Ghulam Ahmad pre-emptor was not co-sharer in the land sold. Only ground urged in support of pre-emption was ownership of estate. Ghulam Ahmad pre emptor, as also Mst. Asia Begum vendee, both claimed ownership in the relevant revenue estate. There is no dispute about the ownership of Ghulam Ahmad, but there is a serious dispute as to whether Mst. Asia Begum was owner of agricultural land assessed to land revenue in the relevant revenue estate Chakora, Tehsil Jhelum. To establish that Mst. Asia Begum was owner of estate, reliance was placed on Exh.D-3, copy of Jamabandi for 1961-62, Exh.D-4, Jamabandi for 1937-38 and the oral statements of witnesses. Ghulam Muhammad, Village Patwari P.W.1, in his statement, deposed that Mst. Asia Begum was owner of two Marlas of land, in Khasra 162 Khewat 73. Also deposed, that Khewat 73, measured one Kanal, out of which 10 Marlas were Banjar Qadim, and the remaining 10 Marlas were Gher Mumkin Kabrastan (graveyard). Niamat Ali, co-plaintiff, appearing as P.W.4, denied that Asia Begum was owner of estate. Ghulam Muhammad Village Patwari again appeared as D.W.1, and deposed that Asia Begum was owner of land in Khasra 162, which piece of land was also assessed to land revenue. In cross-examination, it was conceded by the witness that apart from the share in Khasra 162, Asia Begum did not own any other land in the village. As to the character of land comprised in Khasra 162, it was stated that 10 Marlas were Banjar Qadim whereas the remaining 10 Marlas were Kabrastan. Nazar Muhammad Lambardar of the Revenue Estate Chakora, D.W.2 also deposed that Mst. Asia Begum was owner of the estate. Gul Mumtaz, real brother of Mst. Asia Begum, in his statement as D.W.3, deposed that Mst. Asia Begum was owner of the land and that he cultivated the land owned by her. Finally, Mst. Asia Begum herself as D.W.5, deposed that she was owner of the estate and the land owned by her was culturable. Apart from the oral testimony, reliance was placed by her, on copies of Jamabandis 1961-62 Exh.D-2, 1961-62 Exh.D-3, and 1937-38 Exh.D-4. It is seen from the record that, on 26-9-1966, plaintiff had agreed to pay Rs.1,500 as the price payable for the land. This was exclusive of the mortgage amount to which the sale was subject. From the record, it also appears that Ghulam Ahmad, in an application under section 75 read with Order XXVI, Rule 9, C.P.C. had applied for the appointment of a Local Commissioner so as to find out the true nature and character of land comprised in Khasra 162. From the order recorded on the Qrder sheet, dated 27-6-1967, it transpires that the Court postponed the consideration of the plaintiff's request till after the evidence of the parties was recorded. On 21-9-1966 Court in its order, recorded in Urdu, observed that there appears to be some contradiction in oral and documentary evidence, and, accordingly decided to make local inspection to find out as to whether Asia Begum was owner of the estate or not. It is also seen from the record that the Court inspected the site in presence of the parties and Patwari Halqa on 22-9-1966 and then postponed the suit for hearing arguments on 24-9-1966. On the date fixed, arguments were heard and judgment was given in favour of respondents. It was held that Khasra 162 was covered by graves and that Asia Begum was not owner of the estate as contemplated by pre-emption law. From the above, bone of contention appears to be, the ownership of Asia Begum. Her case is that she was owner of the estate and her right to retain the land was at par with the plaintiff whereas the case of the other side was that she was not owner of agricultural land assessed to land revenue and thus was not owner of the estate. It is correct that in the statement of Village Patwari, it was brought out that Khasra 162 was partly Banjar Qadim and partly covered by graves. This statement is in accord with entries in Exh.D-3 and Exh.D-4. However, the trial Court, at local inspection found that the character of the land given in Exh.D-3 and in the statement of Village Patwari, did not tally with nature and character of land as it existed on site. Local inspection showed that Khasra 162 did not bear agricultural character. From the clear reading of the two judgments, it transpires that the result of local inspection has materially contributed towards the conclusions of the Courts below. I have not been able to find among the record any notes of local inspection which the Judge made. It is common ground that the learned Judge also did not keep anything on record as to his observations of the land in Khasra 162. In this background, three points of importance arise for consideration. First, whether Court, Trial or Appellate making a local inspection was obliged to prepare notes and keep them on record; second, whether or not the facts found and the impressions formed at the local inspection had influenced the mind of Court consciously or unconsciously in arriving at its judgment; third, whether independent of the observations, there was sufficient material to find that Asia Begum was owner of the land. Related question, which may also arise, was whether observations regarding character of Khasra 162, could be excluded from consideration and decision given on the remaining material.
5. ' It was strenuously contended by Ch. Fateh Muhammad Aziz, Advocate, that the omission of the trial Court to make notes of local inspection and to keep them on record was not fatal to the success of the petitioner, who was otherwise proved to be owner of the estate. As against this, learned counsel for the respondents vehemently argued that the impressions gained at local inspection and the observations made in the impugned judgments go a long way to establish that land owned by Asia Begum in Khasra 162 was not agricultural land but was covered by graves and in case the Court finds that it was necessary for the Court to prepare notes and to keep them on record, then the case should be remitted for its decision afresh on the basic issue.
6. Order XVIII, Rule 18, C.P.C. gives power to the Court to make local inspection. Local inspection may be necessary and useful either for understanding the evidence or for its proper appreciation or believing some witnesses as against others to find as to which of the two sets speaks to a state of facts in a contradictory fashion. However, a local inspection cannot be permitted to replace the legal evidence and a judgment cannot be based merely on the result of the local inspection unless the parties agree to adopt such a course. Apart from Order XVIII, Rule 18, the Court has also power to appoint a Commissioner for local investigation. In the case under consideration, Court, though it made the local inspection to understand the evidence, strangely enough, it did not preserve notes to keep them on record and simply relied on its recollections. It was asserted by respondents' counsel that rule 18 does not make it obligatory for the Court to prepare notes of local inspection.
7. Omission in the Rule was heavily relied upon to urge that the inspecting Judge was not bound to prepare notes of his local inspection. It was submitted that this omission made by the Judge be ignored and the case be decided on material i.e. evidence and in the light of observations made by the trial Judge. In this behalf, counsel referred to section 539-B, Cr.P.C., which specifically provides that a memorandum of any relevant fact observed at local inspection shall be prepared and shall form part of the record and argued that a similar provision does not exist in Rule 18.
8. ' No doubt, Order XVIII, Rule 18 does not specifically say that the Court making local inspection shall prepare notes of such inspection and keep them on record. Mere omission, however, will not do.
9. Section 539-B, Cr.P.C. a parallel provision, specifically provides that memorandum of observations shall - be prepared which shall form part of the record. Though there is no such corresponding compulsive provision in Rule 18, yet on the strength of the Rulings of the Superior Courts, it is now a settled statement of law that in cases where a Court makes a local inspection, it is desirable and it will be useful also at the further stages of the case that it makes notes of inspection forthwith to the knowledge of the parties and the counsel, who may be present at the time. This procedure will help the parties to know the result of the inspection and impressions which the Court came to form at the inspection and this knowledge shall enable them to produce such evidence or material as they may choose to support or rebut the impressions. See AIR 1952 Mad.
181. This view of law was, later, affirmed in Kaliammal v. Pongiammal and others AIR 1958 Mad.
331. Learned Judges from Madras High Court, on the usefulness of the local inspection, its purpose and effect on the mind of the Court, observed the question, therefore, is whether the omission regarding the preparation of a memorandum or notes of inspection under 0.18, rule 18, C.P.C. would have the effect of not making it necessary for a Court to prepare such a memorandum even if it makes a local inspection. It must be remembered that it is making the local inspection as a Court, and that such local inspection involves not only public time and energy but is also made after notice to all the parties. There must be some purpose in the Court's making such inspections. Of course, the Court is not bound under 0.18, Rule 18, to make a local inspection, even if both the parties request it to do so, if it considers that it is not necessary. On the other hand, it can also make a local inspection even if neither party requests it to do so, if it thinks it necessary in the interests of justice. Again, the local inspection may be made at any stage of suit, namely before the evidence has begun to be recorded, or in the course of the recording of the evidence, or after the evidence is concluded and before the arguments are heard and judgment is delivered. It is also obvious that some local inspection may prove to be utterly useless for the purpose of the case while other may be very useful either for understanding the evidence, or for appreciating the evidence, or for believing some witnesses as against others, when the two sets speak to a state of facts in a contradictory fashion. Thus, if some witnesses say that a house is too small and incapable of being partitioned and others say that it can conveniently be partitioned, and the Court makes an inspection, it is obvious that the facts discovered at the inspection will incline it towards the views expressed by one set of witnesses, as against the other set of witnesses. So too, in a case about the age or value of a tree or building in dispute. While it is quite clear from the rulings that a Court cannot act on facts discovered by it at the local inspection against the evidence in the case, without any evidence in support of the facts discovered by it, and this is because the Judge is not put on oath or subjected to cross-examination and his notes are not subjected to even objection by either side, still it is obvious, as held in several cases, that his local inspection will, on the principle that "the eye is evidence" vitally influence him in cases where a view of the place is material to decide which version, out of two conflicting versions is true. It has been held in Buckingham v. Daily News Ltd. (1956)2 All ER. 904 (A), that a view of the place by the Court is part of the evidence, just as much as an exhibit, and that it . is real evidence; and the weighty authority of Denning L.J. in Goold v. Evans and Co., 1951-2 TLR 1189(B), has been relied on for this observation. We are of opinion that, even if the judgment of the Judge making the local inspection is not visibly proved to have been influenced by the facts observed by him at the local inspection, still the facts observed by him at the local inspection must have consciously of unconsciously contributed towards his conclusions in the judgment."
10. This is the correct statement of law with which I respectfully agree. Therefore, if the facts found at the inspection have to be used, wherever it is permissible to do so, for arriving at a particular conclusion, the Court is obliged to prepare the notes of inspection and keep them on record.
11. Human memory being what it is, it is very difficult to rely upon what the inspecting Judge found at the spot unless its memorandum was made immediately when the impressions that the Judge had formed were fresh in his mind. Impugned judgments show that the Courts below had heavily relied on the impressions formed at local inspection to give finding that land in Khasra 162 was covered with graves and that the vendee was not owner of the estate. As the order of the trial Judge shows that local investigation was necessary to resolve the conflict in oral testimony and the evidence provided by revenue papers and the Court did not think it proper to merely rely on the evidence produced before it, it is difficult to accept the contention of Mr. Fateh Muhammad Aziz that local inspection was not necessary and its result should be excluded from consideration and entitlement of the petitioner to retain the land should be determined on the basis of evidence produced by the parties. As observed in AIR 1958 Mad. 331 that a view of the place by the Court is part of the evidence just as much as an exhibit, and that it was real evidence, it will not be a proper exercise of jurisdiction to exclude the impressions of the Court and to give finding on the basis of revenue entries and conflicting oral testimony. Both the Courts, in my opinion, were vitally influenced by the impressions formed at the local inspection in giving their judgments. More fundamental question was whether Khasra 162 recorded as partly `Banjar Qadeem' and partly `Kabrastan' since 1937-38, was divested of its agricultural character and ceased to be in the private ownership of recorded owners namely Asia Begum and others. Since the learned Judge, who made the local inspection did not prepare notes to be kept on record for use at further stages of the case and reproduced his impressions from his personal memory, other evidence on the record, being inadequate, judgments given by two Courts are vitiated and cannot be sustained. Case, accordingly, requires a remit. For the foregoing reasons, civil revision is allowed, impugned judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for disposing of it afresh. Learned Judge, who re hears the suit, shall be free to make a local inspection of the spot, if he so wants, but, if he decides to make inspection, he must keep notes of his inspection on record. It shall also be open to the parties to produce additional evidence on character of land in Khasra 162 so as to show whether Asia Begum was or was not owner of the estate as understood in pre-emption law. In case, Court comes to the conclusion that Asia Begum was owner of the estate, her right to retain the land comes at par with the petitioner, but if the finding is otherwise, decree in favour of the respondents (pre-emptors) shall remain intact and shall not be disturbed. No costs. Records be sent to the Courts below.