1. We are not satisfied that the learned Subordinate Judge acted irregularly either in admitting additional evidence in appeal or in inspecting the site. The Judge gave substantial reasons for admitting additional evidence in the shape of public records.
2. The decisions in Rai Kishori Ghose v. Kumudini Kanta Ghose (1912) 14 I.C. 377. Avant Lal Sahu v. Gokul Sahu (1916) 35 I.C. 344 and Dawulla Prasad v. Makhu Lal (1919) 52 I.C. 241 have been quoted in support of the argument that it is illegal for a court to hold a local enquiry.
3. The two latter are judgments of single judges and in all these cases the decisions are based on the omission from Order 26, Rule 9 of the Code of Civil Procedure of the words that occured in Section 392 of the old Code which provided for the issue of a commission for a local investigation only in cases where it could not be conveniently conducted by the Judge in person. Two of the learned Judges relied also on the English practice in such matters. In India we must be guided by our own Civil Procedure Code on matters of procedure which are specifically provided for.
4. There is also a case of this court in Syed Ahamad Sahib v. The Magnesite Syndicate Ltd. : AIR1915Mad1214(1) which proceeds on the assumption that the change of language in Order 26, Rule 9 signified a prohibition of inspections being conducted by Judges in person.
5. We do not think that it has that significance.
6. The effect of the alteration in the language seems only to be that the issue of commissions is not restricted to cases where the Judge is unable conveniently to make the investigation himself. As the rule now stands, a judge may issue a commission in any case where he deems it fit to do so, irrespective of his own convenience.
7. In none of the above decisions has any account been taken of the newly enacted provision in Order 8, Rule 18 which declares `` The Court may at any stage of a suit inspect any property or thing concerning which any question may arise.'' This rule suggests that the legislature desired to encourage rather than to prohibit the elucidation of the truth by means of personal inspections made by Judges.
8. The privy Council decisions in Kesavji Issur v. G.I.P. Railway Company I.L.R.(1907) 31 Bom. 381 has very often been quoted as meaning that judges should under no circumstances hold an inspection of the site in dispute, but if the decision is carefully studied, it appears that the objection to the procedure adopted in that case was mainly to opinions being formed upon an inspection made under conditions quite different from those which were material to the question at issue at the trial.
9. In the present case no such objection can be advanced. The use made by the learned judge of what he observed at his inspection was to verify and confirm what the commissioner had already noted in his reports. By so doing it cannot be urged that either side was prejudiced.
10. The second appeals fail and are dismissed with costs.