' KHAWAJA MUHAMMAD SAEED, J.-The facts detailed below have given rise to this appeal, by leave of the Court, which is addressed against the judgment and decree of the High Court, dated 6-12- 2000, whereby while allowing the appeal of respondents Nos.1 to 3 the concurrent findings recorded by the Courts below were set aside.
2. The Shamilat land comprising survey numbers 310, 311 and. 312 measuring 38 Kanals, 5 Marlas of village Sakra Karaitot Tehsil Sehnsa up to 'Misl-e-Haqiat' of 1973-74 was entered in the possession of proprietary body. This is admitted fact that appellants and pro forma respondents have got proprietary rights in village Sakra Kritot. On 28-10-1974 the Girdawar in Ithasra Girdawari' recorded the possession of contesting respondents 1 to 3. Thereafter, these respondents applied to the Collector Settlement seeking correction of entries of possession in the record-of-rights pertaining to year 1973-74, who on 29-11-1974 gave following directions to the Girdawar concerned:-- (sic)
3. Under this authority of the Collector Settlement the Girdawar invited report from the Patwari and later on while relying on the earlier entry of respondents, dated 28-10-1974, he changed the entries of 'Misle-Haqiat. On the basis of these entries the respondents brought a suit for perpetual injunction on 30-9-1990 in the Court of Sub-Judge Sehnsa. On 12-6-1991 the appellants as well as pro forma respondents filed their written statement in which they denied the averments of the plaint and claimed their possession over the suit-land. They also plead in their written statement that they are going to initiate legal proceedings for the correction of entries in the Revenue Record made in favour of contesting respondents. From Exh.'DE' it is clear that an application seeking correction in the Revenue Record was moved by them before Collector Settlement on 24-7-1991 but on account of stay order obtained by contesting respondents from civil Courts no further steps were taken on this application. In the light of the pleadings of the parties the trial Court framed necessary issues. Thereafter, the parties led evidence for and against their respective claims. The trial Court allowed the application of respondents for spot inspection for the proper appreciation of evidence led by the parties. The local inspection was conducted by the learned Presiding Officer of the trial Court on 25-7-1996. In the presence of the parties and other residents of the vicinity.
Thereafter, on 29-9-1996 the suit of the contesting respondents was dismissed by declaring entries recorded in Revenue Record in their favour against true facts. The correctness of this judgment was assailed in appeal before District Judge Kotli on 16-10-1996 by contesting respondents. The learned District Judge dismissed their appeal vide his judgment and decree, dated 10-7-1998. A second appeal was filed by them before the High Court on 24-9-1998. The learned Judge in the High Court while allowing their appeal set aside the judgments of the Courts below on the following grounds;
(i) that the spot inspection notes were not prepared by the trial Court;
(ii) that the entries of record-of-rights pertaining to year 1973-74 Exh.'PC' were not given proper weight as these were never challenged before any Court; and
(iii) that the evidence on record was misread and non-read by the Courts below.
' The learned Judge in the High Court found contesting respondents in the light of the revenue record in possession of the suit-land
4. Raja Muhammad Siddique, the learned counsel for the appellants, argued that entries in 'Misle- e-Haqiat' 1973-74, Exh. 'P.C.' , were not made in accordance with the prescribed method. According to him the Girdawar without any legal justification firstly entered the possession of respondents on 28-10-1974 in KhasraGirdawari. Later on, on the basis of this. Illegal entry, recorded by him, he under the authority of Collector Settlement who had directed him to correct the record-of-rights on the application of the respondents, obtained report from the Patwari and effected change in the entries of record-of-rights. According to the learned counsel the correction of the entries was made without summoning anyone out of proprietary body of village Sakra Kritot, who in fact were in possession and enjoyment of this Shamilat land. He further argued that entries recorded in 'Misle-eHaqiat' 1973-74 were in accordance with the previous record-of-rights. The Revenue Officer, according to him, was not justified to correct long-standing entries in the Revenue Record and that too without conducting thorough inquiry. According to the learned counsel the disputed entry of possession can be corrected after inquiry through a mutation, which must be attested in the presence of the contesting parties. In this case according to the learned counsel no mutation was attested nor any inquiry was held in which the people having interest in the Shamilat land were allowed to participate. Therefore, the change of entry relating to possession should have not been given importance as was done by the learned Judge in the High Court. According to the learned counsel the Revenue Record tendered in evidence by the appellants and pro forma respondents was altogether ignored by the learned Judge in the High Court. The judgment of the High Court is, therefore, one which suffers from non-reading of material evidence. According to him the copies of 'Misl-e-Haqiat' Exhs.'PG' and 'PK' fully establish this fact that these entries in favour of respondents have been made in compliance of the order of Collector Settlement who passed the same on the application of the contesting respondents and without conducting inquiry as was expected from him under the provisions of Land Revenue Act, 1967. According to him the contesting respondents who wanted a decree for perpetual injunction against the proprietary body having interest therein should have produced 'Roznamcha Waqiati' justifying their exclusive possession on the land in dispute but no such proof was brought on record. He further argued that as the entries in favour of respondents were illegally made in the Revenue Record, therefore, the previous entries in favour of proprietary body of the village shall be deemed to stand. In support of this contention he relied on a case entitled Allah Dad v. Muhammad Ali and others (PLD 1956 Lah. 245). In this case the new entry was not effected in accordance with law, therefore, it was held as follows: "Once we hold that this entry is illegal, the previous entry which showed the sons of Yara as owners of the 1/4th of land is deemed to be standing for entry subsists till a new entry is lawfully substituted therefor."
5. Learned counsel for the appellant further argued that admittedly the land in Revenue Record is recorded as 'Banjer Qadeem' in which only appellants and pro forma respondents have constructed their house which were noticed by the learned Presiding Officer of the trial Court during his spot inspection. Therefore, there was no justification for the learned Judge to allow decree for perpetual injunction to the contesting respondents.
6. On the other hand, Ch. Muhammad Azam Khan, the learned counsel for the contesting respondents Nos.1 to 3. Argued that the judgment of the trial Court was bad in law because the Presiding Officer of the trial Court relied on his observation which he had noticed during his spot inspection but had not prepared spot inspection notes as was required by law. He further argued that the judgment was announced by the learned Judge of the trial Court after two months and seven days of spot inspection, therefore, observations recorded by him in his judgment in the light of spot inspection must necessarily be excluded from consideration. He further argued that the learned sub-Judge as well as the learned District Judge without discussing the evidence had recorded their findings against his clients, therefore, the same were bad in law and were, therefore, rightly set aside by the learned High Court. According to learned counsel the possession of his clients is clearly established from oral as well as documentary evidence available on record. He in the light of these grounds has argued that judgment of the High Court being perfectly legal warrants no interference by this Court.
7. We have considered the respective arguments of the learned counsel for the parties in the light of the relevant record. No doubt in this case the sub-Judge Sehnsa recorded his findings on disputed issues against contesting respondents on the basis of his observation which he had noticed during his spot inspection. It is also admitted fact that notes of local inspection were not prepared and kept on record by the learned Presiding Officer of the trial Court. In the light of these admitted facts the question, which first of all must be attended to is, as to whether the trial Court was bound to prepare inspection notes. Order XVIII, rule 18 of the Civil Procedure Code empowers the Court to make local inspection where it is felt necessary and useful for proper appreciation of the evidence produced by the parties. There is no cavil that local inspection cannot be the substitute of legal evidence and that a judgment cannot he based on the local inspection unless the parties agreed to adopt such a course. Under the provisions of the Civil Procedure Code the Court has also got ample powers to appoint commission tor local investigation. In this case two applications were moved by the defendant-appellant before the trial Court praying therein that either Court should conduct spot inspection or appoint commission in order to ascertain true facts about the possession of the parties on the suit land. First application was moved by him on 20-7- 1992 and the second application was moved on 26-9-1995 for this purpose. The trial Court, as mentioned earlier, conducted spot inspection on 25-7-1996. Order XVIII, rule 18 which grants power to the Court to make local inspection 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."
8. Under this provision of law the Court making local inspection is not requircd to prepare notes of such inspection and make them a part record. Under section 539-B of Criminal Procedure Code a Criminal Court seized with a criminal matter is empowered to conduct local inspection. However, such Court is bound to prepare memorandum of observations and keep them on record. The superior Courts, however, have laid down that where a Civil Court makes a local inspection it is desirable that it makes notes of inspection and keep them on record. It is further laid down by the superior Courts while interpreting this provision of Civil Procedure Code that spot inspection must be conducted by the Court in the presence of the parties or their counsel. The view was firstly expressed in a case entitled R. Govindaswami Naidu v. G. Pushpalammal and another (AIR 1952 Mad. 181) and was later on owned in two other cases entitled Kaliammal v. Pongiammal and others (AIR 1958 Mad. 331) and Mst. Asia Begum v. Nehmat Ali and 6 others (1993 MLD 338). In the last authority it is laid down as follows."
"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."
9. In the light of these authorities it was desirable from the Presiding Officer of the trial Court that he should have prepared inspection notes and kept them on record for the perusal of the appellate Courts. The learned counsel for the respondents has rightly pointed out that the judgment was announced by the trial Court after two months and seven days of the spot inspection. Therefore, he was not justified to record findings on the disputed issues between the parties in the light of the facts observed by him at the local inspection. In the same way even the learned District Judge has not discussed the evidence of the parties. The learned Judge in the High. Court has totally ignored the documentary evidence which was produced by the defendant-appellant before hint along with the written statement. Up to 'Mist-e-Haqiat' of 1973-74 the proprietary body is entered in possession of the land in dispute in the Revenue Record. These long standing entries were changed without thorough inquiry and without attestation of mutation as was required by law. Even oral evidence led by the parties has been misread. For example plaintiff Muhammad Sharif whose statement was recorded in the trial Court on 6-2-1993 has deposed in examination-in-chief that he cannot say whether he is owner of the 'Khewat' or owner in the land in dispute. He has admitted that all the proprietary body was entered in possession of the land in dispute. In cross-examination he has further deposed that total area of the land in dispute was 38 Kanals, 5 Marlas; out of this land 19 Kanals of land is in possession of Muhammad Zairian, Niaz and Mola Dad whereas the remaining land measuring 19 Kanals is in the possession of plaintiff-respondents. He has further deposed that land in dispute is a barren land. According to the statement of Muhammad Sharif, plaintiff, he and other plaintiffs are not in possession of the whole land measuring 38 Kanals, 5 Marlas. They are in possession of 19 Kanals of land. In these circumstances there was no justification for the High Court to allow decree to them to the extent of 38 Kanals, 5 Marlas. In this case as discussed earlier all the Courts below have misread and non-read the documentary as well as oral evidence of the parties. In the similar circumstance in a case entitled Mst. Nishadah Begum and 3 others v. Muhammad Ayub Khan (PLD 1988 SC (AJ&K) 203), when the evidence led by one of the parties was ignored and case was decided on the evidence of the opposite party, this Court set aside the judgment of the High Court and remanded the case to the High Court for fresh decision by making following observations; "It is deemed expedient to make it further clear that the plaintiffs in para. 3 of their pleadings expressly challanged the correctness of entries of Khasra Girdawaries. Their allegation is that some of the entries, which are derogatory and inconsistent to their claim, are against the real position.
They have challenged such entries as false and fictitious. This position is also shown to have been ignored by the learned Judge.
' As the evidence of plaintiffs was overlooked, it is a clear case of interference is non-reading of evidence. Our interference is justified. We, therefore, do not deem it just to appreciate evidence to record our decision on merits unless this is fairy done first by the High Court. We accept the appeal, set aside the order of the High Court and remand the Case for its decision on merits."
10 The Judicial Officers are required by law to decide all issues in the light of the respective pleadings of the parties and evidence produced by them. Such a treatment in this case is missing, therefore, while accepting this appeal, the judgment of the High Court dated 6-12-2000 and the Courts below are set aside. We are constrained to remand the case to the trial Court for a fresh decision in the light of the observations recorded by us in this judgment. As defective judgments have been passed by all the Courts below, therefore, no party can be burdened with the costs.