JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellants have prayed for setting aside the judgment and decree dated 31.12.1993, passed by the Court of learned Sub-Judge, 1st Class, Court No. 2, Shimla in Case No. 128-1 of 1992/83, titled as Smt. Jai Devi Sardana and others v. The Union of India and another, vide which, the suit filed by their predecessors was dismissed, alongwith the judgment and decree dated 03.06.1996, passed by the Court of learned Additional District Judge, Shimla, H.P. in Civil Appeal No. 108-S/13 of 1994, titled as Shri Gian Chand Sardana and others v. The Union of India and another, vide which, the appeal filed by the appellants against the judgment and decree dated 31.12.1993, passed by the learned Trial Court, was also dismissed. 2. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessors-in-interest of the present appellants instituted a suit for permanent prohibitory injunction against the defendants for restraining them from interfering with the ownership and possession of the plaintiffs over the suit property known as 'Sardana House' comprised in Khasra No. 490/62/B, measuring 300 sq. yards, 3 sq. feet, situated in Station Ward Chhota Shimla. According to the plaintiffs, Central Hotel Estate Shimla was evacuee property and was part of a compensation pool. It was put to auction on 18.11.1955. The same was divided into four lots. Lot No. 119 was purchased by Sh. Kala Ram Khanna as Benamidar on behalf of Smt. Shakuntla Kochhar. A sale certificate was issued in favour of the owner on 29.3.1963. Sh. Kala Ram Khanna relinquished his possession and interest with regard to lot No. 119 in favour of Smt. Shakuntla Kochhar. On 09.01.1970, Smt. Shakuntla Kochhar sold 300 sq. yards and 3 sq. feet of the land to Sh. H.D. Sardana (predecessor-in-interest of the plaintiffs), who developed the same and constructed a building known as 'Sardana House' over the same. Lot No. 119-B was purchased in the auction by Sh. Dina Nath Malhotra, who sold the same to one Sh. Kundan Lal Ahuja in the year 1962. Sh. Kundan Lal Ahuja filed a complaint against Smt. Shakuntla Kochhar to the effect that she had usurped lot No. 119-A and got the said lot included within the boundaries of her sale certificate. It was also alleged that Smt. Shakuntla Kochhar had sold land measuring 300 sq. Kundan Lal Ahuja in the year 1962. Sh. Kundan Lal Ahuja filed a complaint against Smt. Shakuntla Kochhar to the effect that she had usurped lot No. 119-A and got the said lot included within the boundaries of her sale certificate. It was also alleged that Smt. Shakuntla Kochhar had sold land measuring 300 sq. yards and 3 sq. feet in Khasra No. 490/62/B to H.D. Sardana, which belonged to him, i.e., Sh. Kundan Lal Ahuja. The complaint was filed before the Chief Settlement Commissioner (Relief & Rehabilitation). Said Commissioner held the sale certificate to be bad by holding that it included, within its boundary, the Central Hotel Annexe and land attached thereto. This order was challenged by the plaintiffs as well as M/s. Himprastha by way of a Revision Petition. The Revisional Authority, i.e., Secretary to the Government of Himachal Pradesh observed that the chief Settlement Commissioner had no jurisdiction to pass the order, against which revision was preferred, but the Secretary suo moto took cognizance of the matter under Section" 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and passed orders for eviction of the plaintiffs from Central Hotel Annexe, measuring 531 sq. yards. 3. Feeling aggrieved, plaintiffs preferred CWP No. 89 of 1972 in the High Court of H.P., which stood dismissed. After dismissal of the writ petition, the plaintiffs and their predecessor-in-interest surrendered the possession of Central Hotel Annexe and land measuring 531 sq. yards attached thereto. Despite said settlement, defendants issued notice for eviction of the plaintiffs; from the suit property comprised in Khasra No. 490/62/B, measuring 300 sq. yards and defendants passed orders for eviction of the plaintiffs from the suit property on 02.06.1984. Feeling aggrieved by the issuance of which, the suit was filed. 4. The same was resisted by the defendants, inter alia, on the ground that the suit property was an evacuee property and it stood vested in the State of Himachal Pradesh. Neither Kala Ram Khanna nor Smt. Shakuntla Kochhar had purchased the suit property in open auction. The plaintiffs in collusion with their predecessor-in-interest had encroached upon the same and defendants were well within their rights in evicting the plaintiffs. 5. On the basis of pleadings of the parties, the following issues were framed by the learned Trial Court: "1. Whether the plaintiffs are owners in possession of suit property as alleged? OPP 2. The plaintiffs in collusion with their predecessor-in-interest had encroached upon the same and defendants were well within their rights in evicting the plaintiffs. 5. On the basis of pleadings of the parties, the following issues were framed by the learned Trial Court: "1. Whether the plaintiffs are owners in possession of suit property as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the defendants are interfering over the suit land, as alleged? OPP 3. Whether the suit property is evacuee property or not? O.P. Parties'- 4. Whether no notice has been served upon the defendants, as alleged? OPD 5. Whether this Court has no jurisdiction to try the suit as alleged? OPD 6. Whether the suit is barred by res judicata? OPD 7. Whether the suit is not properly valued for purpose of Court fee and jurisdiction? OPD 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Relief. 6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: "Issue No. 1: Plaintiffs are not owners, though they are in possession of it. Issue No. 2: No. Issue No. 3: Yes. Issue No. 4: Yes-but permission under Section 80(2) C.P.C. has been granted. Issue No. 5: No. Issue No. 6: No. Issue No. 7: No. Issue No. 8: No. Relief: Suit dismissed." The suit was thus dismissed by the learned Trial Court vide judgment and decree dated 31.12.1993. 7. Feeling aggrieved, the plaintiffs preferred an appeal against the judgment and decree dated 31.12.1993, which also stood dismissed by the Court of learned Additional District Judge vide judgment and decree dated 03.06.1996. 8. Feeling aggrieved by the judgment and decree dated 03.06.1996, the appellants preferred the present Regular Second Appeal, which was admitted by this Court on the following substantial questions of law: "1. Whether the Lower Appellate Court has wrongly rejected the application filed by the plaintiffs-appellants for leading additional evidence. The said application was within the parameter and scope of Order 41 Rule 27 CPC as the documents were already on the record? 2. Whether the Lower Appellate Court has wrongly rejected the application filed by the plaintiffs-appellants for leading additional evidence. The said application was within the parameter and scope of Order 41 Rule 27 CPC as the documents were already on the record? 2. Whether the judgment and decree passed by both the learned Courts below are the result of misreading the documentary evidence, particularly the title deeds of the respective parties, sale deeds and the plans depicting the boundaries of the four Lots of the evacuee property? 3. Whether the judgments and decrees passed by both the learned Courts below are illegal on account of failure on the parts of both the learned Courts below to appreciate the fact that the property in dispute lost its character as an evacuee property and no longer was a part of the compensation pool, and the proceedings initiated against the plaintiffs-appellants assailing the property to be evacuee property were apparently without jurisdiction? 4. Whether the Courts below have wrongly permitted the defendants to rake up the issue regarding the area of Lot No. 119-A i.e. Central Hotel Annexe when the matter was finally settled in various previous proceedings, whether such pleas were barred by res judicata? 5. Whether both the learned Courts below have failed to take into consideration that the Authorities who initiated proceedings for ejectment against the plaintiffs-appellants had no jurisdiction and further their orders were against the principles of natural justice. In these circumstances, whether the Courts below have wrongly declined the relief of injunction to the plaintiffs-appellants, who were in established possession of the suit property?" 9. The suit was dismissed by the learned Trial Court, inter alia, by holding that plaintiffs were not owners of the suit land and the suit property was an evacuee property and defendants being owners, were within their right to take steps for getting their property back through lawful means and the same did not amount to interference. 10. Feeling aggrieved, the plaintiffs filed an appeal, i.e., Civil Appeal No. 108-S/13 of 1994, which was dismissed by the Court of learned Additional District Judge, Shimla vide judgment and decree dated 03.06.1996. 10. Feeling aggrieved, the plaintiffs filed an appeal, i.e., Civil Appeal No. 108-S/13 of 1994, which was dismissed by the Court of learned Additional District Judge, Shimla vide judgment and decree dated 03.06.1996. The appeal was dismissed by the learned Appellate Court, inter alia, by holding that as auction sale had not taken place with the help of Khasra numbers and area thereof, thus, auction of all four lots took place with the help of natural boundaries and in construing the grant of land, a description by fixed boundaries had to be preferred, to a conflicting description by area. It held that the natural boundaries of all four lots stood indicated at the time of auction sale. In the sale certificate as originally issued and subsequently amended, the natural boundaries of Central Hotel main building stood indicated and at no stage, plaintiffs had been able to work out the exact areas of either Central Hotel main building or Central Hotel Annexe. On these basis, it held that it was not open to the plaintiffs to claim ownership and possession of any area beyond the boundary so determined by the Secretary vide order dated 16.06.1972. Learned Court also held that plaintiffs were not entitled to the benefit of Section 41 of the Transfer of Property Act, as was held by this Court while dismissing their Writ Petition vide judgment dated 14.04.1975. It also held that the application filed under Order 41 Rule 27 of the Code of Civil Procedure was liable to be rejected, as the additional evidence intended to be produced by the plaintiffs at appellate Court was of no assistance. Thus, learned Appellate Court while dismissing the appeal, upheld the findings returned by the learned Trial Court. 11. I have heard learned counsel for the parties and have also gone through the judgments passed by the learned Courts below as well as the record of the case. 12. This appeal was admitted on 08.09.2011 on the following substantial question of law: "1. Whether the Lower Appellate Court has wrongly rejected the application filed by the plaintiffs-appellants for leading additional evidence. The said application was within the parameter and scope of Order 41 Rule 27 CPC as the documents were already on the record? 2. 12. This appeal was admitted on 08.09.2011 on the following substantial question of law: "1. Whether the Lower Appellate Court has wrongly rejected the application filed by the plaintiffs-appellants for leading additional evidence. The said application was within the parameter and scope of Order 41 Rule 27 CPC as the documents were already on the record? 2. Whether the judgment and decree passed by both the learned Courts below are the result of misreading the documentary evidence, particularly the title deeds of the respective parties, sale deeds and the plans depicting the boundaries of the four Lots of the evacuee property? 3. Whether the judgments and decrees passed by both the learned Courts below are illegal on account of failure on the parts of both the learned Courts below to appreciate the fact that the property in dispute lost its character as an evacuee property and no longer was a pari of the compensation pool, and the proceedings initiated against the plaintiffs-appellants assailing the property to be evacuee property were apparently without jurisdiction? 4. Whether the Courts below have wrongly permitted the defendants to rake up the issue regarding the area of Lot No. 119-A i.e. Central Hotel Annexe when the matter was finally settled in various previous proceedings, whether such pleas were barred by res judicata? 5. Whether both the learned Courts below have failed to take into consideration that the Authorities who initiated proceedings for ejectment against the plaintiffs-appellants had no jurisdiction and further their orders were against the principles of natural justice. In these circumstances, whether the Courts below have wrongly declined the relief of injunction to the plaintiffs-appellants, who were in established possession of the suit property?" 13. The Court will first decide substantial question of law No. 1. Record demonstrates that during the pendency of the First Appeal, the appellants therein filed three applications under Order XLI, Rule 27 read with other provisions of the Code of Civil Procedure. As these applications apparently do not contain any numbers, therefore, they will be referred to in terms of the date of preparation contained in the same. It is clarified that all these applications are on record and an integral part of the file of the learned First Appellate Court. As these applications apparently do not contain any numbers, therefore, they will be referred to in terms of the date of preparation contained in the same. It is clarified that all these applications are on record and an integral part of the file of the learned First Appellate Court. (a) There is one application on record filed under Order 41, Rule 27 read with Order 18, Rule 17A and Sections 94 & 151 of the Code of Civil Procedure, dated 07.11.1994, in which, a prayer stood made by the appellants/plaintiffs to lead additional evidence by tendering the "judgment" dated 21.06.1994, passed by the High Court of Himachal Pradesh mentioned therein in evidence. (b) There happens to be another application filed under Order 41, Rule 27 read with the Section 151 & 107 of the Code of Civil Procedure on record, which is dated 13.11.1995. By way of this application, the appellants prayed to lead additional evidence by placing on record a copy of "Musavi". (c) Vide another application dated 24.04.1996, the documents which the appellants/plaintiffs intended to place on record by way of additional evidence were: "(a) Sale Certificate issued by the U.O.O. to Shri Dina Nath, predecessor-in-interest of Shri Kundan Lal Ahuja; (b) Sale Deed executed in favour of Shri Kundan Lal Ahuja by Shri Dnna Nath; and (c) Judgment and compromise deeds of cases filed by Shri Kundan Lal alongwith applications." The reason mentioned in the application as to why these documents were intended to be placed on record by way of additional evidence was to prove and exhibit the actual boundary position of the suit land. 14. A perusal of the judgment passed by the learned First Appellate Court demonstrates that applications filed under Order 41, Rule 27 of the Code of Civil Procedure have been dismissed by holding as under: "18. The plaintiffs were not entitled to the benefit of Section 41 of the Transfer of Property Act as held by the Hon'ble High Court while dismissing their CWPs. vide judgment dated 14.04.1975. The doctrine of promissory estoppel was not applicable as the suit property was evacuee property. The plaintiffs were not entitled to the benefit of Section 41 of the Transfer of Property Act as held by the Hon'ble High Court while dismissing their CWPs. vide judgment dated 14.04.1975. The doctrine of promissory estoppel was not applicable as the suit property was evacuee property. The plaintiffs had applied for additional evidence so as to tender in evidence the copy of judgment dated 21.06.1994 passed by the Hon'ble High Court of H.P. Simply because the Hon'ble High Court of H.P. had quashed criminal proceedings against the predecessor-in-title of the plaintiffs and some others established nothing. The Hon'ble High Court vide judgment dated 21.6.1994 had not determined the ownership and possession of the plaintiffs of the suit property. It has been established as a fact that the suit property was beyond the limits of Central Hotel main building and, hence the plaintiffs were rank trespassers. The copy of field map sought to be produced by the plaintiffs at appellate stage was of no assistance to the plaintiffs. The field maps already on record were, in no way, different from the copy sought to be produced at appellate stage. Hence, application for additional evidence is rejected." 15. Order XLI, Rule 27 of the Code of Civil Procedure, inter alia, provides for production of additional evidence in Appellate Court, if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. 16. In the considered view of this Court, when an Appellate Court is dealing with an application under Order XLI, Rule 27 of the Code of Civil Procedure, the first call which the Court has to take is as to whether the same meets the conditions contemplated under Order XLI, Rule 27 of the Code of Civil Procedure or not. 16. In the considered view of this Court, when an Appellate Court is dealing with an application under Order XLI, Rule 27 of the Code of Civil Procedure, the first call which the Court has to take is as to whether the same meets the conditions contemplated under Order XLI, Rule 27 of the Code of Civil Procedure or not. In other words, in case the additional evidence is not required by the Appellate Court for pronouncement of a judgment, then it is the duty of the Appellate Court to see as to whether the additional evidence sought to be produced, was refused to be admitted by the Court from whose decree the appeal is preferred or whether the party seeking to produce additional evidence, notwithstanding due diligence, or even after exercise of due diligence, was not able to produce it on record. 17. I have referred to in some detail the documents which were intended to be placed on record by the appellants/plaintiffs before the learned First Appellate Court by way of applications filed under Order XLI, Rule 27 of the Code of Civil Procedure. In para-18 of the judgment of the learned First Appellate Court only two applications have been discussed with regard to documents, i.e., (a) copy of the judgment dated 21.06.1994; and (b) a copy of field map. The prayer of the plaintiffs/appellants by way of third application dated 24.04.1996 filed under Order XLI, Rule 27 of the Code of Civil Procedure was to place on record the following documents: "(a) Sale Certificate issued by the U.O.O. to Shri Dina Nath, predecessor-in-interest of Shri Kundan Lal Ahuja; (b) Sale Deed executed in favour of Shri Kundan Lal Ahuja by Shri Dnna Nath; and (c) Judgment and compromise deeds of cases filed by Shri Kundan Lal alongwith applications." This application dated 24.04.1996 in fact has not been decided by the learned First Appellate Court, as no order has been passed in the judgment with regard to the fate of this application. 18. 18. It is settled law that when a party approaches the Appellate Court with an application under Order XLI, Rule 27 of the Code of Civil Procedure, then the application has to be decided one way or the other by the Appellate Court and the same cannot remain undecided on the Court record, because none can say as to what would have been the effect of the decision of the same on the final judgment, if the application was allowed by the Court. In this case, by not deciding this third application dated 24.0.4.1996 filed under Order XLI, Rule 27 of the Code of Civil Procedure, the learned First Appellate Court has committed a material irregularity, which renders the judgment and decree passed by it non est in the eyes of law. It is again reiterated that this Court is not suggesting as to what order should have been passed on the said application by the learned First Appellate Court and all that this Court is laying stress upon is that once this application was on record, learned First Appellate Court was duty bound to decide it. 19. It is relevant to state here that Zimini order passed by the learned First Appellate Court dated 24.04.1996 is self speaking that it was on this date that an application under Order XLI, Rule 27 of the Code of Civil Procedure was filed and the same was ordered to be listed by the learned First Appellate Court on the next date fixed, i.e., 29.04.1996. Thus, here it is not a case where the cognizance of the application had not been taken by the Court. In these circumstances, it is reiterated that non-adjudication of this application by the learned First Appellate Court renders. the judgment and decree passed by it bad in law. Substantial question of law No. 1 is answered accordingly and in view of this, the other substantial questions of law call for no adjudication. 20. Accordingly, this appeal is allowed on this point alone by setting aside the judgment and decree dated 03.06.1996, passed by the learned First Appellate Court in Civil Appeal No. 108-S/13 of 1994, titled as Shri Gian Chand Sardana and others v. The Union of Indian and another and the case is remanded back to the learned First Appellate Court for adjudication afresh. As it is quite an old appeal, learned First Appellate Court is requested to make an endeavour to decide the same as expeditiously as possible and preferably before 31st December, 2021. Miscellaneous applications, if any, also stand disposed of.