RAM NATH KOERI Vs. BASHIR AND ANR

JUDGEMENT

(1.) This is a Defendant's second appeal arising out of a suit for the division of a holding Under Section 32 of the Banaras State Tenancy Act (No. III of 1949). In the trial court the State of UP was made a party to the suit after the merger of the Banaras State to UP. When the Defendant preferred his appeal in the lower appellate court, he did not make the UP Government a party. The Plaintiff Respondents raised a preliminary objection in that court to the effect that the appeal was incompetent in view of the failure on the part of the Defendants to make the UP Government a party. It appears that an application was made beyond time in the court below praying that the UP Government be made a party. But when the application came up for hearing, the learned Counsel for the Defendant-Appellant stated in the court below that the UP Government was not a necessary party and as such he would not press the prayer for making the UP Government a party.

(2.) In second appeal it has been contended that the UP Government was not a necessary party and that even if it was a necessary party the lower appellate court could have condoned the delay, having regard to Section 5 of the Indian Limitation Act.

(3.) On the question as to whether the UP Government was a necessary party or not, it is fairly obvious that having regard to Section 32(2) of the Banaras State Tenancy Act (No. III of 1949), which is analogous to Section 49(2) of the UP Tenancy Act (No. XVI of 1939), the landlord, namely the UP Government was a necessary party to the suit and also to the appeal. Sub-clause (2) of Section 32 of the Banaras State Tenancy Act and Sub-clause (2) of Section 49 of the UP Tenancv Act both enjoin that in any devision of a holding the landlord shall be made a party. The lower appellate court relied upon three decisions--the one in Bohare Puran Chand v. Ganpat Singh etc.,1947 RevDec 334 the other in Bale and Ors. v. Koran Singh,1950 AndhWR 70 and he third in Sherfuddin v. Shaffir,1952 AndhWR 68 in support of the view that the zamindar is not a proforma Defendant but a necessary party and that an appeal in a suit Under Section 49 of the UP Tenancy Act without impleading the zamindar is not maintainable.