1. This is an appeal on behalf of the plaintiff in a suit for recovery of possession of what is claimed by her as joint property. The defendants denied the allegation that the property was still joint; their case was that since the partition of 1877 mentioned by the plaintiff, they have been in possession of the disputed land as included in their allotment, and that as the result of a subsequent partition amongst themselves, the second and third defendants are at present in occupation of the disputed lands.
2. The Court of first instance made a decree in favour of the plaintiff. Upon appeal, the learned Subordinate Judge, after he had partially heard the arguments, went to the spot and held a local investigation under section' 392 of the Code of 1882. He subsequently heard further arguments and came to the conclusion that the judgment of the original Court must be modified.
3. The plaintiff has now appealed to this Court, and on her behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first, that he has made a new case for the parties; and secondly, that he ought not to have held a local investigation and made the results of the facts observed by him on the spot the foundation of his judgment.
4. In support of the first of these contentions, our attention has been invited to the eighth paragraph of the written statement of the defendants; it has been argued that the case of the defendants was that they had acquired a good title to the disputed properly by adverse possession for the statutory period and they never alleged, much less did they attempt to prove, that upon the partition of 1877, the disputed parcel fell into their share. We are of opinion that there is no substance in this contention and that the Subordinate Judge correctly appreciated the defence of these defendants. We are unable to say that there has been any such variance between the pleading and the proof as would justify a reversal of the judgment of the Court below. In support of the second ground, it has been contended that the appellant has been prejudiced by reason of the procedure adopted by the Subordinate Judge, and reliance has been placed upon the cases of Kessowji Issur v. Great Indian Peninsula Railway Company 31 B. 381 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M.L.J. 347 and Jackson v. The Duke of Newcastle 3 De G.J. & S. 275 : 33 L.J. Ch. 698 : 10 Jur. (N.S.) 688, 810 : 10 L.T. 635, 802 : 12 W.R. 1066 to show that the Subordinate Judge ought not to have held a local investigation. In so far as the first of these cases is concerned, it is of no real assistance to the appellant. There the Court of Appeal, at the invitation of both the parties, inspected the locality, the scene of a railway accident, and upon the impression left on the minds of the Judges by a view of the place and without reference to the evidence adduced by the parties, held that the accident must be attributed to the negligence of the plaintiff. la the -case before us, it cannot be suggested that the Subordinate Judge has ignored the evidence on the record in forming his conclusions. In so far as the second case is concerned, no doubt, Lord Westbury ruled that a Judge ought not to hold a local investigation and base his judgment upon conclusions of facts derived from his own inspection of the premises. The reasons which were assigned by the Lord Chancellor in support of his view were as follows: A Judge is bound to pronounce his decision according to the evidence before him, but his inspection of the premises may bring him to a conclusion directly opposed to what is established by the evidence, and the order then will ex facie proceed upon evidence which, according to the weight of it, would warrant aid require a different conclusion from that which is embodied in the order. Weighty reasons of a similar character were assigned in support of the same view by Sir George Jessel in the case of Leech v. Schweder 22 W.R. Eng. 292 : 43 L.J. Ch. 232. It must be borne in mind, however, that Section 392 of the Code of 1882, which was in force when the Subordinate Judge held the local investigation in this case, implies that a Judge may hold a local investigation. In fact that section implias that a commission is to issue for the purpose of local investigation only when such investigation cannot be conveniently conducted by the Judge in person. In view of this provision of Section 392, it is impossible to adopt the, rule laid down in the two English cases to which referenda has just been made. It may be pointed oat, however, that Order XXVI, Rule 9 of the Code of 1908, which corresponds to Section 392, omits the words and the same cannot be conveniently conducted by the Judge in person,' and when Rule 9 requires to be construed, it may be a matter for argument that the intention of the Legislature was to adopt the English rule. It is not necessary for us, however, to express any opinion upon the matter in the present case. The sole question, therefore, is whether the appellant has been prejudiced by the mode in which the local invastigation was conducted by1 the Judge. Now it has been ruled in this Court, in the cases of Joy Coomar v Bundhoo Lall 9 C. 363 : 12 C.L.R. 490 and Dwarka Nath Sardar v. Prosunno Kumar Hajra 1 C.W.N. 682 that when a Judge makes a local investigation, he should put the result on record, so that the parties may see what he considers established. In the case before us, the Judge made elaborate notes at the time of the local investigation, but did not mention the one circumstance observed by him at the time of the local investigation upon which he subsequently founded his judgment. The point in controversy between the parties was, whether or not the garh in dispute was included within the share allotted to the defendants. The chittahs, which were the foundation of the partition proceedings, were re-laid, but the result showed that a strip of land intervened between the garh and the southern boundaries of the plots allotted to the defendant according to the chittahs. The presence of this intervening plot had, therefore, to be explained. The learned Judge inspected the locality and found that this intervening plot consisted of a slope covered with jungle. He then assumed that the condition of the land in 1877 when the partition took place was identical with the condition of the land as observed by him, and held that by the term garh the parties might have intended not merely the hollow which would properly be called garh, but also the slope with the jungle. This conclusion he did not place on record. If he had done so, the plaintiff might have asked for permission to adduce evidence to show the precise condition of the land in 1877; this opportunity was not afforded to her. The contention of the appellant, therefore, that the plaintiff has been prejudiced by the mode in which the local investigation was conducted, is not without foundation. We are further of opinion that the learned Judge ought not to have held a local investigation with a view to gather information which he might use as the foundation of his judgment. He might inspect the locality with a view to enable him to understand the evidence; See London General Omnibus Co. v. Lavell (1901) 1 Ch. 135 : 70 L.J. Ch. 17 : 83 L.T 453 : 17 T.L.R. 61 : 18 R.P.C. 74 in which Lord Alverstone, C.J., observed with reference to Order I, arule 4 of the Rules of the Supreme Court in England, that the object of a view of the subject matter of the litigation by the Judge is to enable the tribunal to understand the questions raised, to follow the evidence and to apply the evidence.] But if any additional information was required, the proper course would have been to appoint a Commissioner under Section 392 whose report might have been used in evidence and who might himself have been examined as a witness.
5. The result, therefore, is that this appeal must be allowed, the judgment and decree of the Subordinate Judge set aside in so far as it modified the decree of the Court of first instance, and the case remanded to him in order that he may re-hear the appeal on the materials on the record. There will be no local investigation by the new Subordinate Judge who will hear the appeal. The costs of the appeal will abide the result.