OMKAR SINGH Vs. MANSINGH

JUDGEMENT

(1.) THIS is an appeal by the defendants/appellants against the judgment and decree dated 18.3.1987 passed by the First Additional Judge to the Court of District Judge, Vidisha in Civil Appeal No. 88A/1985, preferred against the judgment and decree dated 11.11.65 passed by Civil Judge Class -II, Basoda in Civil Suit No. 20A/63 wherein the suit of the plaintiffs for declaration and possession of the lands bearing Khasra Nos. 143, 146, 152,164,169,168,188,185 and 205, area 71 bighas, 5 biswas, situated in village Madia Ponia, was decreed.

(2.) AGGRIEVED of the judgment and decree, the defendants preferred an appeal which was allowed. The plaintiff/respondent No.1 filed a second appeal No. 428/69 against the judgment and decree of first appellate Court, which was allowed by this Court on 23.7.1985 and the case was remitted to the first appellate Court to rewrite the judgment properly, afresh in accordance with law, after hearing the parties. On receipt of the record, the respondent/plaintiff raised a preliminary objection about the maintainability of the appeal that the State of M.P., though imp -leaded as a party in the trial Court, having not been imp -leaded in the appeal, the appeal is not maintainable. The first appellate Court without de ding the appeal, as directed in the order of remand, dismissed the appeal for non -joinder of the necessary party, Le., the State of M.P. Aggrieved of this, the appellants/defendants have filed this second appeal, which was admitted by this Court on the following substantial question of law : - -

(3.) TO meet this preliminary objection, Shri K.N. Gupta, learned counsel for the appellants/defendants, contended that an appeal is continuation of the suit, initially when the appeal was heard, no objection about the non -joinder of the State of M.P. as party in the appeal was raised before the first appellate Court. Not only this, when the respondent/plaintiff filed the second appeal against the said order, the State was imp -leaded as respondent No.2, therefore the objection was not fatal. In any case, when the objection was raised of dismissing the appeal because of the non -joinder of State as a party, after the order of remand, there was a formal adjudication by the Court dismissing the appeal, that is binding till it is not set aside.