JUDGMENT
1. This appeal under Section 100 of the Civil P.C. 1908, hereinafter called the Code, is directed against the decree and judgment dt. 22nd Oct. 1973 passed by the 1st (Temporary) Civil and Sessions Judge, Ballia in Civil Appeal No. 22 of 1972, Sadhu Rai v. Raj Narain Rai whereby the decree and judgment dt. 7th Mar., 1972 passed by the Munsif, Ballia West in Original Suit No. 369 of 1967 has been modified.
2. To buttress its conclusion leading to the impugned decree and judgment, the first appellate Court has, inter alia, placed reliance upon the inspection note dt. 19th Oct., 1973 recorded on the basis of local inspection carried on 18th Oct., 1973.
3. Sri A. K. Misra, holding brief of Sri U. K. Misra, learned counsel for the appellants, contends that the first appellate Court had no jurisdiction to make local inspection of the disputed site. According to him, such a power was vested only with the trial Court.
4. Rule 18 of the Order XVIII of the Code, as it stood on 19th Oct., 1973, empowered the Court to inspect any property or thing concerning which any question might arise at any stage of the suit.
5. It cannot be gainsaid that appeal is a continuation of a suit and R. 18 of O. XVIII
of the Code permitted inspection of any property or thing concerning which any question might arise at any stage of a suit. Expression ‘at any stage of a suit’ includes the appellate stage of a suit.
6. The objection with regard to the exercise of power of inspection by the appellate Court is squarely met by the provisions of Section 107 of the Code which empowers the appellate Court to determine a case finally to remand the case; to frame issues and refer them for trial; to take additional evidence or to require such evidence to be taken. The Section also provides that the appellate Court shall have the same powers and shall perform as nearly as may be same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.
7. In view of the provisions of Rule 18 of Order XVIII of the Code, the trial Court is possessed of power to inspect any property or thing concerning which any question may arise at any stage of a suit. The appellate Court also is, therefore, possessed of the power of inspection of any property or thing concerning which any question arises at any stage of the suit including appeal. Such a conclusion is inevitable if the provisions of Rule 18 of Order XVIII and Section 107 of the Code are read together.
8. There is yet another aspect which cannot be lost sight of. The disputed inspection was carried on 18th Oct., 1973 in the presence of the learned counsel representing the parties and there is no material on record to point out that the inspection was objected to. The objection raised on behalf of the appellants against the inspection and reliance upon the inspection report cannot, therefore, be uphled.
9. In the result, the appeal fails and is dismissed. However, there will be no order as to costs.
10. Appeal dismissed.