JUDGMENT : PRAYER in S.A.No.63 of 2021: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated December 4, 2019 made in A.S.No.5 of 2014 on the file of the Sub Court, Rasipuram, confirming the Judgment and Decree dated February 26, 2013 made in O.S.No.40 of 2010 on the file of the District Munsif Court, Rasipuram. PRAYER in C.M.P. No.16924 of 2022 in S.A.No.63 of 2021: Civil Miscellaneous Petition for reception of additional evidence under Order XLI Rule 27 (1) of Code of Civil Procedure, 1908 praying to receive the certified copy of the affidavit and the Writ Petition, both in W.P.No.17486 of 2021 as well as the certified copy of the Order dated September 8, 2021 passed therein, and mark them as Ex-B.12 to Ex-B.14 in the Original Suit. Judgment and Decree dated December 4, 2019 passed in A.S.No.5 of 2014 by the 'Subordinate Court, Rasipuram' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated February 26, 2013 passed in O.S.No.40 of 2010 by the ‘District Munsif Court, Rasipuram' ['Trial Court' for brevity] was confirmed, are under challenge in this Second Appeal. 2. The defendant in the Original Suit is the appellant herein. The plaintiffs therein are the respondent nos.1 to 5 herein. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit. PLAINTIFFS' CASE: 3. The Suit Property is located in old Survey No. 42/1 of Keeranur Village. It corresponds to Natham Survey No.42/1/23 of Keeranur Village and Natham Survey No.66/5/36 of Komarapalayam Village. Suit Property and some more properties originally belonged to one Chinna Gounder as joint family properties. After his demise, his wife - Kandhayammal and three sons - Chettiya Gounder, Kaliyanna Gounder and Kandhasamy Gounder entered into registered Partition Deed dated June 25, 1964 in respect of those joint family properties. In the said Partition Deed, ‘A’ Schedule properties therein were allotted to Chettiya Gounder and his sons, ‘B’ Schedule properties therein were allotted to Kaliyanna Gounder, ‘C’ Schedule properties were allotted Kandhasamy Gounder, and though no properties were allotted to Kandhayammal, some maintenance arrangement was done for her. The Suit Property is the Item No.5 of Schedule ‘B’ properties therein. 3.1. The Suit Property is the Item No.5 of Schedule ‘B’ properties therein. 3.1. Under the Natham Land Tax Scheme, Patta pertaining to the Suit Property was issued in the name of the plaintiffs’ father - Kaliyanna Gounder. Post his demise in 1997, the plaintiffs, being his legal heirs, have been in continuous possession and enjoyment of the Suit Property. 3.2. To the western side of the Suit Property is the ‘Item No.5 of ‘A’ Schedule properties of the said Partition Deed corresponding to Natham Survey No.42/1/22 of Keeranur Village and Natham Survey No.66/5/35 of Komarapalayam Village, which were allotted to Chettiya Gounder in the said partition’ [henceforth ‘said western side property’ for brevity and convenience]. Through subsequent transactions between Chettiya Gounder and Kandhasamy Gounder, said western side property was transferred to Kandhasamy Gounder. 3.3. There is a ‘well’ located in the north-western corner of the said western side property and as per the said Partition Deed, the eastern side land owners viz., plaintiffs could also draw water therefrom. Accordingly, the plaintiffs were in joint possession and enjoyment of the well. 3.4. Thereafter, in 2005, the defendant proposed a verbal agreement to close the well in his property viz., said western side property, to enable him alter his house, and compensate by building a water tank in the north-eastern corner of the Suit Property. The plaintiffs agreed and both parties are jointly using the newly built water tank (sump). 3.5. However, in 2008, the defendant encroached upon the Suit Property and put up constructions such as staircase, portico, septic tank etc. The plaintiffs have annexed a rough sketch showing the encroached portions along with the plaint. The plaintiffs issued legal notice dated January 21, 2009 calling upon the defendant to deliver vacant possession of the Suit Property for which the defendant replied claiming title over the Suit Property. Hence the Suit for mandatory injunction seeking to remove the encroachments and restore the plaintiffs possession of the encroached portions. DEFENDANT’S CASE: 4. The defendant filed written statement dated June 7, 2010 and counter-claim dated October 29, 2010 denying the allegations made by the plaintiffs except those specifically admitted. He admits the relationship between the parties as stated in the plaint as well as the plaint averments contained in Paragraph Nos.3 and 3.2 hereinabove. DEFENDANT’S CASE: 4. The defendant filed written statement dated June 7, 2010 and counter-claim dated October 29, 2010 denying the allegations made by the plaintiffs except those specifically admitted. He admits the relationship between the parties as stated in the plaint as well as the plaint averments contained in Paragraph Nos.3 and 3.2 hereinabove. The defendant’s case is that in or about 1990, in a panchayat between the plaintiffs’ family and the defendant’s family, the defendant’s family relinquished their right, title and share over the 2 Cents land in Survey No.51/4C including the well and pump set therein corresponding to Item No.4 of ‘A’ Schedule properties of the said Partition Deed. Similarly, in turn, the plaintiffs’ family relinquished their right, title and claim over the house, land and well in the Suit Property, as well as their right over the 2½ Cents land in Survey No.73/2B including the well, motor pump set and electricity service connection no.29 therein, corresponding to Item No.2 of ‘B’ Schedule of the said Partition Deed, in favour of defendant’s family. Thus the Suit Property absolutely belonged to the defendant’s family and later came to the hands of the defendant absolutely. Accordingly, the defendant sought for declaration of title over the Suit Property and consequential relief of permanent injunction. He valued the counter-claim under Section 25 (b) of the ‘Tamil Nadu Court-Fee and Suits Valuation Act, 1955’ ['T.N.C.F. Act' for short]. To be noted, the counter-claim has clear description of property. REPLY STATEMENT: 5. The plaintiffs vide the reply statement dated January 10, 2011, filed by first plaintiff and adopted by the other plaintiffs, denied the counter-claim of the defendant. Further, they reiterated that in 1991, considering the possession and enjoyment, under the Natham Land Tax Scheme, Patta in respect of Natham Survey No.42/1/23 of Keeranur Village and Natham Survey No.66/5/36 of Komarapalayam Village [Suit Property i.e., Item No.5 of ‘B’ Schedule of the said Partition Deed] was issued in favour of the plaintiff. Similarly, Patta in respect of Natham Survey No.42/1/22 of Keeranur Village and Natham Survey No.66/5/35 of Komarapalayam Village [said western side property i.e., Item No.5 of ‘A’ Schedule of the said Partition Deed] was issued in favour of the defendant. Similarly, Patta in respect of Natham Survey No.42/1/22 of Keeranur Village and Natham Survey No.66/5/35 of Komarapalayam Village [said western side property i.e., Item No.5 of ‘A’ Schedule of the said Partition Deed] was issued in favour of the defendant. The said western side property, which was originally allotted to Chettiya Gounder, was allotted in the name of Kandhasamy Gounder vide Compromise Decree dated June 16, 2000 passed in O.S.No.136 of 1998 on the file of Trial Court. Thereafter, Kandhasamy Gounder and his sons entered into a registered Partition Deed dated July 1, 2005, whereby the said western side property was allotted to the defendant. The plaintiffs denied the 1990 panchayat settlement alleged in the counter-claim. Accordingly, the plaintiffs prayed to dismiss the counter-claim. TRIAL COURT: 6. At trial, first plaintiff – Chandran was examined as P.W.1 and Ex-A.1 to Ex-A.15 were marked on the side of the plaintiffs. On the side of the defendant, the defendant – Selvaraj was examined as D.W.1, one Selvam was examined as D.W.2 and Ex-B.1 to Ex-B.11 were marked. 6.1. After full-fledged trial and hearing both sides, the Trial Court concluded that the defendant’s family acquired right over the said western side property only in the year 2000 vide Compromise Decree dated June 16, 2000 passed in the said O.S.No.136 of 1998 and thereafter, the defendant acquired title over the same vide Partition Deed dated July 1, 2005. In these circumstances, it not plausible that the plaintiffs relinquished their right over the Suit Property in favour of the defendant. Further, on the other hand, the plaintiffs’ side evidence establishes their title over the Suit Property. Accordingly, the Trial Court decreed the Suit and dismissed the counter-claim. 6.2. To be noted, the Trial Court failed to draw a separate Decree in respect of defendant’s counter-claim, when the defendant had duly paid Court Fee under Section 25 (b) of the T.N.C.F. Act and when the counter-claim has clear description of property. In fact, the defendant after the Trial Court’s Judgment and Decree, filed an Interlocutory Application in I.A.No.50 of 2015 in the main Suit praying the Trial Court to pass a separate Decree in respect of counter-claim. However, the Trial Court rejected the same after hearing either side, by observing as hereunder: “6. In fact, the defendant after the Trial Court’s Judgment and Decree, filed an Interlocutory Application in I.A.No.50 of 2015 in the main Suit praying the Trial Court to pass a separate Decree in respect of counter-claim. However, the Trial Court rejected the same after hearing either side, by observing as hereunder: “6. Ongoing through the decree passed by this court it discloses the result of the counter-claim and the suit property and counter-claim property are one and the same and particulars of the suit property clearly mentioned in the decree. Further, the omission of suit property with respect to the counter-claim in the decree is not a clerical or arithmetical error. Therefore, the petitioner can very well prepare appeal by filing of available decree and there is no need to draft separate decree for the counter-claim.” FIRST APPELLATE COURT: 7. Aggrieved by the Trial Court’s Judgment and Decree, the defendant preferred an appeal in A.S.No.5 of 2014 before the First Appellate Court. Then, the defendant filed Interlocutory Applications in I.A.No.28 of 2016 and I.A.No.45 of 2017 before First Appellate Court, both under Order XLI Rule 27 of Code of Civil Procedure, 1908 ['CPC' for short]. The former was filed praying to receive the registration copy of registered Will dated February 18, 1991 and the White E.B. Meter Card in respect of service connection no.29 standing in the name Kandhasamy Gounder i.e., in the defendant’s father’s name and the latter praying to recall P.W.1 for further cross-examination. Both the petitions were dismissed on September 7, 2019 even before hearing arguments in the Appeal Suit. Thereafter on November 6, 2019, the appeal was posted on list for hearing arguments. The appellant filed I.A.No.2 of 2019 praying to remove the Appeal Suit from the list and the same was dismissed. Then the Appeal Suit was posted on November 25, 2019 for arguments. Accordingly, arguments were heard and the First Appellate Court concurred with the findings of the Trial Court and dismissed the Appeal Suit vide its Judgment dated December 4, 2019. SECOND APPEAL: 8. Then the Appeal Suit was posted on November 25, 2019 for arguments. Accordingly, arguments were heard and the First Appellate Court concurred with the findings of the Trial Court and dismissed the Appeal Suit vide its Judgment dated December 4, 2019. SECOND APPEAL: 8. Feeling aggrieved by the Judgment and Decree passed by the First Appellate Court, the defendant has preferred this Second Appeal, which was admitted on November 25, 2021 on the following substantial questions of law: “a) In the absence of the appointment of Advocate Commissioner along with the Surveyor to inspect and measure alleged encroachment by the defendant and a report in this regard, decreeing the Suit for mandatory injunction on the basis of plaint pleadings, plaint plan and oral evidence can be sustained? b) Whether confirming the judgment of the Trial Court by the Appellate Court without adverting to the issues answered by the Trial Court can be sustained?” 8.1. Thereafter on February 16, 2024, the appellant preferred Civil Miscellaneous Petition in C.M.P. No.4166 of 2024 in this Second Appeal under Section 105 (1) read with Order XLI Rule 1 and Section 151 of CPC read with Order II Rule 4(22) of Appellate Side Rules, praying to grant permission for the defendant to raise the following additional grounds: “(a) The lower Appellate Court ought to have taken up I.A. No. 22 of 2016, I.A. No. 28 of 2016 and I.A. No.45 of 2017 along with the main appeal and therefore, the procedure adopted by not taking up I.A. No.22 of 2016, I.A.No.28 of 2016 and I.A.No.45 of 2017 along with the main appeal suffers from material irregularities. (b) The finding of the lower Appellate Court that the appellant herein did not produce any evidence in proof of this counter-claim is self-contradictory, in view of the applications having already been taken on file in I.A.No.22 of 2016, I.A.No.28 of 2016 and I.A.No.45 of 2017 with sufficient documentary proof in support of such counter-claim.” 8.2. The said petition was allowed on February 26, 2024. ARGUMENTS: 9. Mr.T.Murugamanickam, Senior Advocate for M/s.Zeenath Begum, learned Counsel on record for the appellant/defendant would argue that it is settled law that Order XLI Rule 27 Application has to be heard along with the main Appeal. The said petition was allowed on February 26, 2024. ARGUMENTS: 9. Mr.T.Murugamanickam, Senior Advocate for M/s.Zeenath Begum, learned Counsel on record for the appellant/defendant would argue that it is settled law that Order XLI Rule 27 Application has to be heard along with the main Appeal. The First Appellate Court erred in deciding the Order XLI Rule 27 Applications viz., I.A.Nos.28 of 2016 and 45 of 2017 much prior to hearing the Appeal Suit. 9.1. Further, the main additional evidence sought to be received vide I.A.No.28 of 2016 viz.,Will dated February 18, 1991, is a document vital to establish the defendant’s case. The same being a document under the plaintiffs’ power and possession, the defendant is filing the application as soon as he came to know about it. Further, the executant of the document, namely Kaliyanna Gounder, passed away in 1997 leaving the aforementioned Will, whereby the 4 Cents of lands along with the well, electricity service connections and compressor in Survey No.51/4 was bequeathed in favour of the first plaintiff. According to the plaintiffs, they have only ½ share in the said property in the form of Item No.4 of ‘B’ Schedule of the Partition Deed dated June 25, 1964. However, Kaliyanna Gounder has executed a Will in respect of the entirety of 4 Cents in Survey No.51/4 including the well, which together constitutes Item No.4 of ‘A’ Schedule of the Partition Deed dated June 25, 1964. Further, there is no whisper about the Suit Property in the said Will. Thus, the Will supports and corroborates the defendant’s case of family arrangement in a panchayat. 9.2. Another document sought to be marked vide I.A.No.28 of 2016 is the White E.B. Meter Card pertaining to electricity service connection no.29, which along with the well in Survey No.73/2 constitutes Item No.2 of ‘A’ Schedule of Partition Deed June 25, 1964. The said White E.B. Card, which stands in the name of the defendant’s father – Kandhasamy Gounder, has entries for the period between March 16, 2003 and September 15, 2003. The First Appellate Court ought to have allowed the Applications but miserably failed to do so, thus failing to provide sufficient opportunities to the defendant to establish his case. 9.3. The said White E.B. Card, which stands in the name of the defendant’s father – Kandhasamy Gounder, has entries for the period between March 16, 2003 and September 15, 2003. The First Appellate Court ought to have allowed the Applications but miserably failed to do so, thus failing to provide sufficient opportunities to the defendant to establish his case. 9.3. He would further argue that the first plaintiff filed a Writ Petition in W.P. No.17486 of 2021, wherein he claimed that post the demise of Chettiya Gounder and Kaliyanna Gounder, Survey No.51/4C absolutely belongs to him and accordingly, he prayed to issue a Writ of Certiorarified Mandamus against Tamil Nadu Generation & Distribution Corporation Limited [TANGEDCO] directing them to transfer the service connection no.95 pertaining to Survey No.51/4C standing in the name of Chettiya Gounder, in his favour. The said affidavit and Writ Petition along with the Order passed therein are very much essential to decide the instant case. Those documents are sought to be received as additional evidence vide C.M.P. No.16924 of 2022 in the Second Appeal. Accordingly he prayed to allow the same. 9.4. In view of the facts and circumstances of this case, he prayed to remand the matter either to the First Appellate Court or to the Trial Court for recording additional evidence, which are very much essential to prove the defendant’s case. 9.5. He would rely on the following decision in support of his contentions: (i) Ibrahim Uddin’s Case - Judgment of Hon'ble Supreme Court in Union of India v. Ibrahim Uddin, reported in (2012) 8 SCC 148 . 10. Mr.B.Gopalakrishnan, learned Counsel for the respondents 1 to 4/plaintiffs 1 to 4 would argue that Trial Court as well as First Appellate Court concurrently held that the plaintiffs proved their title and possession over the Suit Property. The defendant failed to prove his case of oral relinquishment/family arrangement in 1990 panchayat. 10.1. Further, since the defendant’s counter-claim has been dismissed, the defendant ought to have prepared a separate appeal. Since the defendant preferred only one appeal against the Judgment and Decree passed in Original Suit, the appeal is barred by res judicata. 10.2. The defendant’s construction on the Suit Property has not been denied. Further the Suit Property is described clearly and specifically in the plaint. Since the defendant preferred only one appeal against the Judgment and Decree passed in Original Suit, the appeal is barred by res judicata. 10.2. The defendant’s construction on the Suit Property has not been denied. Further the Suit Property is described clearly and specifically in the plaint. Moreover, the encroached area has been clearly specified in the plaint as well as in the Rough Sketch annexed therewith. Hence, appointment of Advocate Commissioner assisted by surveyor is not necessary. Therefore, there is no questions of law much less any Substantial Questions of Law involved in this Second Appeal. Accordingly, he prayed to dismiss the Second Appeal and confirm the concurrent findings of the Trial Court and the First Appellate Court. DISCUSSION: 11. This Court has heard the submissions made on either side and perused the materials available on record. 12. The plaintiff filed the Original Suit for mandatory injunction valuing the Suit under Section 27 (c) of T.N.C.F. Act. The defendant filed a counter-claim valuing the same at Rs.25,000/- and paid a Court Fee for Rs.12,500/- under Section 25 (b) of T.N.C.F. Act. 13. This Court has perused the counter-claim. It meets all the requirements for a plaint as it contains all the elements required in a plaint, such as short & long cause title, cause of action, valuation, court fee, prayer, description of property and list of documents. 14. It is pertinent to extract Order VIII Rule 6A of CPC hereunder: “6-A. Counter-claim by defendant.— (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.” 15. It is also pertinent to extract Order VIII Rule 6D of CPC hereunder: “6-D. Effect of discontinuance of suit.—If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, and counter-claim may nevertheless be proceeded with.” 16. From the above, it can be understood that a counter-claim has the same effect as a cross-suit. When the plaintiff allowed the main Suit for default or withdrew the same, the Court has to still proceed with the counter-claim and pass Judgment and Decree. If the plaintiff proceeds with the main Suit, the Court shall pass a Common Judgment in both, the main Suit and in the counter-claim and generally the Court shall draw separate Decree for each of them. In case, the property described in the Suit and the counter-claim are one and the same, even then it is advisable to draw separate Decrees so as to enable the aggrieved parties to prefer appeal. There is no express provision in CPC with regard to drawing separate Decrees in such cases. While so, if the Court is to draw a Common Decree for both, the same shall contain the description of property, valuation, Court Fee paid, etc., for both, the Suit and counter-claim. 17. In the Decree passed by the Trial Court in the instant case, the description of property, valuation, and court fee of the Suit is alone set out. As regards counter-claim, in clause 4 of the Decree, the Trial Court has merely mentioned that the counter-claim has been dismissed without setting out the description of property, valuation, court fee paid in respect of the counter-claim. On mere perusal of the plaint, one would be clueless about the counter-claim property. 18. In this case, the result is that the Trial Court decreed the Suit and dismissed the counter-claim. On mere perusal of the plaint, one would be clueless about the counter-claim property. 18. In this case, the result is that the Trial Court decreed the Suit and dismissed the counter-claim. It is true that the defendant ought to have filed a separate appeal against the counter-claim Decree, along with this appeal against the Suit Decree. However, the Trial Court passed a single Decree. In the absence of a separate counter-claim Decree, the defendant has filed an appeal against the Suit alone. To be noted, the defendant had taken steps to draw separate Decrees by filing an Interlocutory Application in I.A.No.50 of 2015 in the main Suit praying to draw a separate Decree for the counter-claim, which however went in vein as the Trial Court dismissed the same under an erroneous notion that the Suit Property and the counter-claim property are one and the same, as stated supra under the heading ‘Trial Court’. Though the Suit Property and the counter-claim property are one and the same in substance, their description varies. The plaintiff presents a larger portion viz., Suit Property [Natham Survey No.42/1/23 of Keeranur Village and Natham Survey No.66/5/36 of Komarapalayam Village] in order to seek a Decree of mandatory injunction in respect of encroached portion alone. Whereas, the defendant seeks declaration of title and consequential relief of injunction in respect of the entire extent of the Suit Property. In such a scenario, the Trial Court ought to have drawn separate Decrees, one for the Suit and one for the counter-claim, failing which, it ought to have mentioned the relevant particulars for both, the Suit and the counter-claim as stated supra duly in the single Decree. But the Trial Court failed to do so, due to which, the defendant could not file a separate appeal against the counter-claim. This is not on par with the principle of actus curiae neminem gravabit, which means the act of the Court shall prejudice no one. Hence, the technical argument of the plaintiff that the defendant ought to have preferred two appeals, one against the Suit Decree and another against the counter-claim Decree, though correct, does not hold water in the facts and circumstances of this case. 19. Hence, the technical argument of the plaintiff that the defendant ought to have preferred two appeals, one against the Suit Decree and another against the counter-claim Decree, though correct, does not hold water in the facts and circumstances of this case. 19. As regards I.A.Nos.28 of 2016 and 45 of 2017, they are filed under Order XLI Rule 27 of CPC praying to receive the certified copy of the Will dated February 18, 1991 and White E.B. Card pertaining to service connection no.29, and praying to recall P.W.1 for further cross-examination respectively. The main additional evidence sought to received thereby, namely the Will dated February 18, 1991 is a testament executed by the plaintiffs’ father who passed away in or around 1997. Naturally, the plaintiffs would have been in the custody of the same and the defendant would not have had any access to it. In these circumstances, the contention of the defendant that he is adducing the same as additional evidence as soon it came to his knowledge, is on the face of it an acceptable one. But whether the said Will is a last Will or has it been subjected to cancellation during the life time of plaintiffs’ father, or is it valid and acted upon are all questions that can be decided only after it is duly marked and the plaintiffs are given reasonable opportunity to put forth their case in this regard. The defendant, though pleaded a family arrangement in a panchayat held in 1990 as stated supra, has not successfully established the same despite examination of D.W.2 in that regard. But he hopes that the recitals of the said Will would stand in support of his case. 20. It is trite law that Order XLI Rule 27 Application should be heard along with the main appeal. In this regard, it is apposite to refer to Ibrahim Uddin’s Case (cited supra), wherein the Hon'ble Supreme Court has held as hereunder: “48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of consideration 49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh[1951 SCC 178 : AIR 1951 SC 193 ] and Natha Singh v. Financial Commr., Taxation[ (1976) 3 SCC 28 : AIR 1976 SC 1053 ] .) *** *** *** 52. (Vide Arjan Singh v. Kartar Singh[1951 SCC 178 : AIR 1951 SC 193 ] and Natha Singh v. Financial Commr., Taxation[ (1976) 3 SCC 28 : AIR 1976 SC 1053 ] .) *** *** *** 52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non- application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.” 21. In instant case, both the Order XLI Rule 27 Applications were heard and dismissed on September 7, 2019 even before hearing arguments in the Appeal Suit. Only thereafter, the Appeal Suit was listed for arguments on November 6, 2019 and again on November 25, 2019 as stated supra. Accordingly, arguments were heard and the First Appellate Court concurred with the findings of the Trial Court and dismissed the Appeal Suit vide its Judgment dated December 4, 2019. Thus, the First Appellate Court committed a grave error in deciding the Order XLI Rule 27 Applications much prior to the hearing of the main Appeal Suit. Therefore, the dismissal Orders passed therein suffer from irregularity and gross violation of statutory requirements, which prejudice the defendant. 22. As regards the Civil Miscellaneous Petition in C.M.P. No.16924 of 2022 filed before this Court, the defendant seeks to receive certified copy of the affidavit and the Writ Petition in W.P.No.17486 of 2021 as well as the certified copy of the Order dated September 8, 2021 passed therein, hoping that they would help him establish his case of family arrangement in a panchayat held in 1990. 23. 23. Hence, with a view to provide reasonable opportunity to the defendant to prove his case, with a view to adhere to the principles of natural justice, with a view to negative the prejudice caused by the errors committed by Trial Court as well as the First Appellate Court, in view of the maxim - actus curiae neminem gravabit, this Court is of the considered view that the matter be remanded to the Trial Court for afresh consideration after giving sufficient opportunities to both parties to put forth their case. The defendant is at liberty to file a fresh application under Order VIII Rule 1A of CPC praying to mark the additional evidence sought to be received vide I.A.Nos.28 of 2016 and 45 of 2017 and the C.M.P. No.16924 of 2022 as well as to invoke Order XVIII Rule 17 of CPC praying to recall witnesses. It is made clear that the matter is remanded to the Trial Court for adducing additional evidence which does not affect the evidence already recorded/marked in the Original Suit. They shall continue to remain in force. It is further clarified that on such an event of the parties filing petition for reception of the additional evidence, the same shall be decided on its own merits in accordance with law, uninfluenced and untrammelled by observations of this Court if any on the merits of the case. Such observation by this Court, if any, would have been made solely for the purpose of deciding this Second Appeal. 24. Since the matter is being remanded to the Trial Court, the Substantial Questions of Law framed in this Second Appeal shall not be decided now. RESULT: 25. Resultantly, the Second Appeal stands allowed and the matter is remanded to the Trial Court under Order XLI Rule 23A of CPC in the following terms: (a) The Judgment and Decree of the Trial Court as well as the First Appellate Court are hereby set aside; (b) The Trial Court is directed to readmit the Suit in its Original Number in the Register of Civil Suits and proceed to determine the Suit in accordance with Order XLI Rule 23A of CPC; (c) Order dated September 9, 2016 passed in I.A.No.50 of 2015 in O.S.No.40 of 2010 by the Trial Court is hereby set aside. (d) Orders dated September 7, 2019 passed in I.A.No.28 of 2016 and I.A.No.45 of 2017 by the First Appellate Court are hereby set aside. The appellant/defendant is at liberty to file a fresh application before the Trial Court under Order VIII Rule 1A of CPC as well as to invoke Order XVIII Rule 17 of CPC; (e) The plaintiffs are also at liberty to adduce additional evidence if they so desire/are advised under Order VII Rule 14 of CPC as well as to file an application under Order XXVI Rule 9 of CPC praying for appointment of Advocate-Commissioner along with qualified surveyor for local inspection. Further the plaintiffs are also entitled to invoke Order XVIII Rule 17 of CPC and re-examine any witness who has already been examined; (f) The Trial Court shall consider the matter on merits as per law uninfluenced by the observations made by this Court on the merits of the case, if any, and pass a Common Judgment and draw separate Decrees for the Suit and the counter-claim; (g) Connected Civil Miscellaneous Petition in C.M.P. No.16924 of 2022 shall be closed with liberty to the appellant/defendant to file fresh petition praying to receive the additional evidence as stated supra as well as to raise all the grounds raised in the Civil Miscellaneous Petition; (h) The Registry shall return the documents enumerated in the list of documents in the Civil Miscellaneous Petition in C.M.P. No.16924 of 2022 so as to enable the appellant/defendant to produce the same before the Trial Court; (i) Registry is directed to consign the Records to the Trial Court within 20 days from today; (j) Registry is directed to send a copy of this Judgment in an expeditious manner to the Trial Court, so as to enable the Trial Court to dispose of the matter as early as possible; (k) On receipt of a copy of this Judgment, the Trial Court shall issue notice to both the parties, fix the hearing date, continue the trial bearing in mind the terms stated supra and pass Common Judgment and draw separate Decrees; (l) Considering the age of the Suit, the Trial Court shall dispose of the matter as early as possible, preferably within 6 months from the date of receipt of copy of this Judgment. Both parties and their counsels before the Trial Court shall co-operate with the Trial Court for speedy disposal of the matter; (m) The appellant/defendant is entitled for refund of Court Fee as per rules; (n) Keeping in mind the facts and circumstances of the case, there shall be no order as to costs.