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Judgment
,
Ajay Mohan Goel, J",
By way of this appeal, the appellants have prayed for the following relief:",
“That in the facts and circumstances set out hereinabove, the appellants/plaintiffs humbly pray that this appeal may very kindly be allowed and the",
judgment and decree of the learned Appellate Court affirming the judgment and decree of the Trial Court may very kindly be set aside throughout with,
costs. In the alternative, the appellants/plaintiffs humbly pray that since the judgment and decree of both the Courts below are against law and facts on",
record, the case may be sent for reÂtrial under the provisions of Order 41 Rule 23 A CPC.â€",
Brief facts necessary for the adjudication of the appeal are as under:,
Appellants/plaintiffs (hereinafter referred to as ‘the plaintiffs) filed a suit for injunction restraining the respondents/defendants (hereinafter referred,
to as ‘the defendants’) from interfering over the possession of the plaintiffs upon property known as ‘Him Prastha Bhawan and Central Hotel,
Annexe’ comprised in Khasra Nos. 62/2 and 490/62/A, measuring 1016 square yards 3 square feet. Pursuant to order dated 02.06.1984",
purportedly passed by defendant No. 3 and for restraining the defendants from realizing the rent of the property from its tenants etc. As per the,
plaintiffs, plaintiff No. 1 was a Private Limited Company and property known as Central Hotel Estate situated in Shimla was an evacuee property and",
same formed part of compensation pool, which was put to auction under the orders of Regional Settlement Commissioner, Jullundur in four different",
lots, namely, (i) Lot No. 119 comprising Central Hotel Main Bldg. And land attached thereto; (ii) Lot No. 119(a) comprising of Central Hotel Annexe;",
(iii) Lot No. 119(b) comprising of stable and servant Qrs.; and (iv) Lot No. 119(c) comprising of Central Hotel and additional house above the stables.,
Out of these four lots, Central Hotel Main building, i.e., lot No. 119 was purchased by one Shri Kala Ram Khanna, Benamidar of Smt. Shakuntla",
Kochhar for a sum of Rs.67,225/Â. Said Kala Ram Khanna was issued sale certificate on 29.03.1963 with regard to the property purchased by him",
on behalf of Shakuntala Kochhar as per the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to",
as ‘the 1954 Act’) as also Rules made thereunder, wherein the boundaries and details of the property sold to Kala Ram Khanna were also",
mentioned. Said Kala Ram Khanna, sometime in July 1963 relinquished all his rights, titled and interest in the property in favour of Smt. Shakuntla",
Kochhar, who was the real and actual owner of the property in issue and on whose behalf, Sh. Kala Ram Khanna was the Benamidar of the property.",
As per the plaintiffs, Shakuntla Kochhar was the actual owner of the property known Central Hotel Main Building bearing lot No. 119 and land",
attached thereto right from the beginning. Out of lot No. 119, Central Hotel Main Building and the land attached thereto, Smt. Shakuntla Kochhar sold",
an area of 1016 sq. yards and 3 sq. feet comprising of building known as Central Hotel Annexe bearing Khasra No. 61/2 and land appurtenant thereto,
comprised in Khasra No. 490/62/A, measuring 864 sq. yards and 2 sq. feet vide sale deed dated 06.10.1967 for a consideration of Rs.27,000/Â to the",
plaintiffs. Pursuant to the said sale deed, the plaintiffs were put in possession of the property, which was so purchased by them from Shakuntla",
Kochhar. Thereafter, plaintiff No. 1 started development work on the property so purchased and constructed partly a single storeyed and partly a",
double storeyed building known as Him Prastha Bhawan, consisting of a basement and one storey above it on the portion of vacant land purchased",
from Shakuntla Kochhar. Out of the aforesaid newly constructed building, plaintiff No. 1 sold portions thereof to plaintiffs No. 2 to 5 as mentioned in",
the plaint. Plaintiffs No. 2 to 5 were also put in legal possession of their respective portions of the property purchased by them. The Central Hotel,
Stables and servant Qtrs. bearing lot No. 119(b) were purchased by one Shri Dina Nath Malhotra vide sale certificate dated 28.06.1961.,
Subsequently, vide a deed of sale dated 17.01.1962, he sold the servant quarters and stable to one Shri Kundan Lal Ahuja. Some time in June 1971,",
Shri Kundan Lal Ahuja filed a complaint with the Chief Settlement Commissioner, Relief and Rehabilitation, Himachal Pradesh against Shakuntla",
Kochhar alleging that she had wrongly and illegally usurped the Central Hotel Annexe, being lot No. 119(a) and included the same in the sale",
certificate by extending the boundaries of her estate. It was mentioned in the complaint that land sold by Shakuntla Kochhar to one Shri H.D. Sardana,
belonged to him (Kundan Lal Ahuja) and she had wrongly usurped the same and sold it to Shri H.D.Sardana.,
On receipt of the said complaint, the Chief Settlement Commissioner, H.P. Shimla initiated proceedings against Smt. Shakuntla Kochhar under",
Section 24 of the Act. He passed an order against her of ejection from the property, i.e., lot No. 119 (a) Central Hotel Annexe, measuring 531 sq.",
yards, on the ground that said property was never sold to her and she had wrongly included the same in her sale certificate by extending boundaries in",
her sale certificate. However, Chief Settlement Commissioner did not return any findings qua area purchased by Shri H.D. Sardana, which was",
claimed by Kundan Lal Ahuja to be his own. Shakuntla Kochhar filed a revision petition under the provisions of the 1954 Act before the Secretary to,
the Government of H.P. Vide order dated 16.06.1972, the findings of the Chief Settlement Commissioner were set aside on the ground that he had no",
jurisdiction in the matter. Vide same order, the Secretary, taking cognizance of the complaint of Kundan Lal under Section 33 of the Act suo moto",
recast the boundaries of Smt. Shakuntla Kochhar and amended her sale certificate to the extent excluding therefrom he property known as Central,
Hotel Annexe, i.e., lot No. 119(a), on the ground that the said property was never sold to her. Vide said order, the Officer also ordered the eviction of",
the plaintiff from Central Hotel Annexe lot No. 119(a), measuring 531 sq. yards. Feeling aggrieved, plaintiff No. 1 and other aggrieved parties",
preferred a writ petition in the High Court of Himachal Pradesh. Same was dismissed by the High Court vide judgment dated 14.04.1975. High Court,
upheld the findings of the Secretary that the sale certificate of Smt. Shakuntla Devi was void to the extent that it included the boundaries of Central,
Hotel Annexe. Thereafter, the defendants wrote a letter No. 543 dated 24.05.1982 to plaintiff No. 1, calling upon said plaintiff to surrender the vacant",
possession of Central Hotel Annexe, measuring 531 sq. yards. On receipt of the said communication, plaintiff No. 1 approached the Settlement",
Officer, Evacuee Properties, Department of Rehabilitation, Government of H.P., Una for settlement of the dispute regarding the said area measuring",
531 sq. yards. The Settlement Officer agreed to settle the matter on the condition that plaintiff No. 1 withdraws its Special Leave Petition preferred,
by it, which was subsequently withdrawn by plaintiff No. 1. Thereafter, Settlement Officer, Una settled the entire matter with respect to the aforesaid",
disputed property for an amount of Rs.1,85,000/Â as cost of the said property as also damages for its occupation, which plaintiff No. 1 agreed to",
honour. However, said order was never communicated to plaintiff No. 1, for the reasons best known to the defendants. Despite above mentioned",
settlement, defendant No. 3 vide letter No. 443, dated 09.09.1983 served a show cause notice under Section 19(2) of the 1954 Act, calling upon the",
plaintiff No. 1 as to why it should not be ejected from the area of 1016 sq. yards of Central Hotel Annexe purchased by it from Shakuntla Kochhar.,
Plaintiff No. 1 filed its reply dated 03.10.1983 pointing out that eviction order passed by the Secretary only pertained to an area of 531 sq. yards and,
therefore, show cause notice was wholly illegal, void and without any jurisdiction beyond that. It was also mentioned in the reply that in view of",
settlement of the entire matter, the defendants were not entitled to reÂopen the said matter again. Thereafter, vide order dated 02.06.1984, defendant",
No. 3 ordered the ejection of plaintiff from the property, i.e., Central Hotel Annexe and land measuring 1016 sq. yards by rejecting the contention of",
plaintiff No. 1. Plaintiff No. 1 was also directed not to take any rent from the tenants occupying the property. As per the plaintiff, said order dated",
02.06.1984 passed by defendant No. 3 under Section 19(2) of the 1954 Act was illegal, null and void, ultra vires and without jurisdiction for the",
following reasons:,
“(a) Impugned order was passed behind the back of plaintiffs No. 2 to 5, without affording them any opportunity of being heard and thus the same",
was not binding upon them.,
(b) Defendants were illegally and erroneously interpreting the order dated 16.06.1972, passed by the Secretary, Government of H.P., as the said order",
only pertained to Annexe portion measuring 531 sq. yards.,
“Issue No. 1:,"Plaintiffs are not owners, though they are in possession of part of it.
“Issue No. 2:,No
“Issue No. 3:,Yes.
“Issue No. 4:,YesÂbut permission under Section 80(2) C.P.C. has been
“Issue No. 5:,No
“Issue No. 6:,No
“Issue No. 7:,No
“Issue No. 8:,No
Relief:,Suit dismissed.â€
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.,
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.,
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 plaintiffsÂappellants 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?,
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?",
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 plaintiffsÂappellants assailing the property to be evacuee property were apparently without jurisdiction?",
Whether the Courts below have wrongly permitted the defendants to rake up the issue regarding the area of Lot No. 119ÂA i.e. Central Hotel,
Annexe when the matter was finally settled in various previous proceedings, whether such pleas were barred by res judicata?",
Whether both the learned Courts below have failed to take into consideration that the Authorities who initiated proceedings for ejectment against,
the plaintiffsÂappellants 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 plaintiffsÂappellants, who were in established possession of the suit propertyâ€",
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.,
(a). There is 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 “judgmentâ€",
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 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",
“Musaviâ€.,
(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, predecessorÂinÂinterest 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.â€,
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.,
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 evaccue,
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 predecessorÂinÂ‐,
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.â€",
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.",
In the considered view of this Court, when an Appellate Court is dealing with an application under Order 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 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.",
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 paraÂ18 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, predecessorÂinÂinterest 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.â€,
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.,
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.",
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 nonÂadjudication 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.,
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. 107ÂS/13 of 1994, titled as M/s Himprastha Financers (P) Ltd. and others Vs. The Union of India and others 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.",