R. R. Rastogi, J. - (1.) THESE two writ petitions may be taken up together because common questions are involved and the counsel for the petitioners addressed the same arguments in both of them.
(2.) IN Writ Petition No. 6137 of 1980, the petitioner is Smt. Tikoli Kunwar. Proceedings under the U. P. Imposition of Ceiling on Land Holdings Act (hereafter 'the Act') were started against her by the issue of a notice under section 10 (2) along with the statement. It was proposed to declare 15 Bighas 14 biswa and 8 biswansis land of her holding as surplus. Her holding was situated in two villages, namely, Changeli and Chathiya. IN village Changeli the was tenure-holder of plots nos. 7 and 10. Ram Swarup, who is the petitioner before this Court in writ petition No. 6299 of 1980, is another tenure-holder of these plots. Smt. Tikoli Kunwar contested the notice and one of the objections taken by her was that plots nos. 7 and 10 aforesaid and the entire land of her holding in village Chathiya were unirrigated and had been wrongly shown as irrigated in the statement. The Prescribed Authority did not accept this contention and by its order dated 31-12-1974, confirmed the notice. IN appeal the surplus area was modified to some extent but the finding in regard to the character of the aforesaid land was upheld. Thereafter Smt. Tikoli Kunwar came up to this Court by way of a writ petition, being Civil Misc. Writ No. 8241 of 1976. That petition was decided by this Court on 26-9-1978. The claim of the petitioner that the aforesaid land was unirrigated had not been decided in the manner required by Section 4-A of the Act and hence the case was remanded to the appellate court for decision of this question afresh. After remand, the appellate court has, on an examination of the relevant Khasras for 1378 to 1380 fasli years, taken the view that to both the plots nos. 7 and 10 aforesaid irrigation facility was available by a tubewell and in some of the land of both the plots two crops had been grown. The petitioner's con tention in regard to the other plots has also been similarly examined and ultimately it has been held that irrigated area of plots nos. 7 and 10, 220 and 295 comes to 26 Bighas 8 biswas and 5 biswansis and the remaining area of 16 Bighas 14 biswas and 1 biswansis is unirrigated and relief has been accordingly given and surplus land has been reduced to 2.92 hectares irrigated land. In the other case Ram Swarup also contested the notice which had been served on him under section 10 (2) of the Act and claimed that plots nos. 7 and 10 aforesaid were unirrigated. That contention was not accepted by the Prescribed Authority and surplus land was declared. Ram Swarup's appeal having failed, he came up to this Court by way of writ petition, being Civil Misc. Writ Petition No. 785 of 1976. That petition was decided by this Court on 7-4-1978. The petitioner's contention was accepted that the question had not been decided as required by law and further that in the circumstances of the case it was accepted that the Prescribed Authority should have made a local inspection, and then decide this objection of the petitioner regarding plots nos. 7 and 10. After remand the Prescribed Authority made a local inspection and found that in plot no. 7 only 5 Bighas 14 biswas and 10 biswansis and in plot no. 10, 8 Bighas 5 biswas land is unirrigated while the remaining is irrigated. It appears that the petitioner filed certain objections to the inspection report of the Prescribed Authority. The Prescribed Authority, however, on the basis of the inspection report gave some relief to the tenure-holder Ram Swamp and determined 4.21 hectares in terms of irrigated land as surplus. The inspection report of the Prescribed Authority in Ram Swarup's case was not available to the appellate court while deciding the appeal of Smt. Tikoli Kunwar. It would have been better if these cases were taken up together and the appeals were heard by the same Court, but there is nothing on the record to suggest that the parties desired that these cases should be consolidated and unless that was done, the evidence available on the record of one case could not have been read in the other case.
(3.) AS for the case of Ram Swarup tenureholder, of course, the case was remanded by this Court to the Prescribed Authority. In compliance with the directions given by this Court, the Prescribed Authority made a local inspection and gave its report. Surprisingly enough Ram Swarup petitioner filed an objection to that report. In my opinion such an objection was not maintainable. It is another thing that if in the report of a Presiding Officer of a Court some thing had been pointed out on the spot and by some over-sight it had not found mention in the report, the attention can be drawn to it, but that is absolutely different from raising an objection to the observations of the Court. In this behalf, it would be useful to refer to the relevant provision. As for the power of the Court to inspect, provision has been made in Order 18 Rule 18 of the Code of Civil Procedure. It reads : "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 part of the record of the suit." Order 18 provides for hearing of the suit and examination of witnesses. Rule 18, as noted above, enables the Court to inspect any property or thing and the object is to enable it to understand the questions that are being raised and appreciate the evidence. It is correct that the judgment can not be passed solely on the basis of such personal local inspection. The memorandum of inspection forms a part of the record of the suit and there is certainly no question of any party filing any objection to such memorandum. The power of the Court to inspect is not to be confused or equated with the report of a Commissioner. Order 26 of the Code of Civil Procedure provides for Commissions. Commissions may be issued to examine witnesses, for local investigation and to examine accounts. For local investigation it is under Rule 9 of this Order that if the Court deems a local investigation to be requisite or proper to elucidate any matter in dispute or for ascertaining the market value of any property or the amount of any mesne profits or damages, the Court may issue a commission to such person as it thinks fit. Rule 10 provides for the procedure which is to be followed by the Commissioner and sub-rule (2) says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record, but the Court or with the permission of the Court, any of the parties to the suit may examine the matters reported to him or mentioned in his report. Sub-rule (3) empowers the Court to direct such further enquiry to be made as it shall think fit if for any reasons it is dissatisfied with the proceedings of the Commissioner. In the case of a local inspection by the Court itself, no such occasion can arise. And the question also is that if an objection is permitted to be filed against the memorandum of local inspection of the Court, then who is to decide it. Certainly, it cannot be expected of that Court itself to decide it. If it is taken that the appellate court is to decide it, then it can do so only if itself visits the spot. Against the appellate court's memorandum of his petition as well an objection may be filed and thus there can be no end to this process. I do not think that such a situation can be permitted to arise.;