Mohamed Yusuf Alu Abbas vs A. Kuppu Konar and Others

Maheswaran, J.—The Revision Petitioner, Mohamed Yunuf Ali Abbas assails the order of the learned Executive Sub Divisional Magistrate,

Sivaganga ""dropping proceedings"" instituted under S.145(5), Cr.P.C.

The revision petitioner residing at Ilayangudi claimed to be in possession of 6.16 acres in Survey No. 169/1 and 1.90 acres in Survey No.

162/2 in Kongampatti Village, Ramanathapuram District. He also claimed to prescribe title over those properties and produced Kist receipts and

examined witnesses including Karnam.

One Kuppu Konar of ''B'' Party, who alone filed a statement contended that the disputed land belonged to Ayyanar temple which was taken

over by the. Hindu Religious and Charitable Endowment and that he took over all the properties belonging to the Deity in 1974 and that he has

also paid Kist.

The Executive Magistrate made a local inspection of the property and made the following laconic Order:-

The petitioner has not put forth in his petition the actual portion of the land which he claims to be in his possession. The entire extent of 15.00 acres

comes in 169/1 and other of 3.80 acres in S. No. 169/2. Mere production of Kist receipt either without patta No. or S. No. and orders of the

settlement authorities are not sufficient to prove his possession of the extent claimed by him. Local inspection of the lands shows that many persons

one in possession at present. The petitioner has not proved his possession of the land claimed by him beyond reasonable doubt. As such the

petition fails and it is dismissed.

Further proceedings are dropped under S.145(5) Crl.P.C.

The counsel for the revision petitioner contended that the order is vitiated because the Magistrate has made a local inspection without giving

notice to the parties and that he was influenced by this extra judicial information gathered by him at the time of local inspection. This contention of

the learned counsel for the revision petitioner is well founded. I may here point out that Mr. Kumar, the learned counsel for the revision petitioner

does not dispute the fact that the Magistrate can make a local inspection while making a local enquiry of a disputed issue when it is done for the

purpose of appreciating the evidence already on record. But, the Magistrate should not be influenced by the evidence gathered on the spot. The

learned Magistrate has clearly observed that he made a local inspection on 11th August, 1976 and that local inspection revealed that the property

in dispute lies in two different sub divisions and S. No. 169/1 measures 15.00 acres, that S. No. 169/2 measures 2.80 acres and they are in the

possession and enjoyment of several persons on lease.

In In Re: Mangru Feku Momin, the learned Judges of a Bench of the Bombay High Court observed that the judicial practice of questioning

persons without recording their evidence and without allowing the other side an opportunity for cross-examination in a local inquiry cannot be

permitted. In Appayya Naika v. State of Mysore AIR 1964 Mys 177 the learned Officiating Chief Justice pointed out that it is not desirable for a

Magistrate yielding to the temptation of conducting local inspection to base his conclusion solely on observation made by him. In Syed Ahmed

Sahib Shutar v. The Magistrate Syndicate Limited ILR 39 Mad. 501 a Bench of this Court observed that the inspection which a Judge makes

should be used by him only to test the accuracy of the of the evidence let in and he should not, without submitting himself to the test of cross-

examination make his knowledge the sole evidence for determining the question raised before him. With respect I adopt this observation of the

learned Judges. From the records I find that the Magistrate has not prepared any report of his local inspection. The order extracted very clearly

shows that his local inspection revealed that many persons are in enjoyment and in possession of the disputed lands. It is also very clearly shown

that he was influenced by extra-judicial information gathered at the time when he made the local inspection. In Batakrushna Naik v Khageswar

Kunda 1973 C.L.J. 1050 Misra, J. observed as follows:-

Here is an instance where the learned Magistrate has overstepped the limit and made use of his local inspection in such a manner that he has

himself become more or less a witness and has ceased to be the arbiter of the dispute. If a Magistrate import into the case any facts which he has

himself observed, he would be introducing into the case evidence which has not been subjected to the test of cross examination and in regard to

which he may have been misled by his senses or have been biased in favour of either party.

That decision was rendered with reference (sic) a proceeding under S.149, Cr.P.C. I may point out that the above observation of Misra, I will

apply with great force to the facts of the present case. It is, therefore, clear that the order of the Magistrate was made without giving notice to the

parties and he has use the information he gathered at the time (sic) made local inspection to drop the proceeding. The order is clearly vitiated and

has to be (sic) aside. The revision is allowed. The order set aside and the matter is remitted to (sic) Executive Magistrate for hearing afresh (sic)

biased by any observation made in (sic) Judgment.