JUDGMENT D.N. Roy, J. - This is a Defendant's second appeal arising out of a suit for the division of a holding u/s 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 R.D. 334 the other in Bale and Ors. The lower appellate court relied upon three decisions--the one in Bohare Puran Chand v. Ganpat Singh etc. 1947 R.D. 334 the other in Bale and Ors. v. Koran Singh 1950 A.W.R. (Rev.) 70 and he third in Sherfuddin v. Shaffir 1952 A.W.R. (Rev.) 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 u/s 49 of the UP Tenancy Act without impleading the zamindar is not maintainable. 4. On the other hand, reliance was placed by the Defendant upon the decision of the Board of Revenue in Ram Jag and Ors. v. Ambika Prasad 1952 A.W.R. (Rev.) 47 in which an observation was made to the effect that if by the success of the appeal the zamindar's attitude in favour of a party remains unaffected, the omission to implead him is not fatal. The Board of Revenue in ieciding the case of Ram Jag and Ors. v. Ambika Prasad 1952 A.W.R. (Rev.) 47 referred to above took no note of the express provisions of Sub-section (2) of Section 49 of the UP Tenancy Act which enjoins that in a suit u/s 49 the landholder shall be made a party. Ram Jag and Ors. v. Ambika Prasad 1952 A.W.R. (Rev.) 47 does not, therefore, lay down the correct law. The landholder, namely the State of UP, having been a necessary party and the land holder not having been made a party to the appeal, the decision of the lower appellate court appears to me to be correct. 5. Section 5 of the Indian Limitation Act had no application to the present case, because even after the application had been made by the Appellant in lower appellate court praying that the UP Government should be made a party, that application was not passed by the Defendant and the Defendant persisted in his view that the landholder was not a necessary party. Under such circumstances the Appellant cannot be heard to say in second appeal that the benefit of Section 5 of the Indian Limitation Act should have been given to him. 6. The appeal is, therefore, dismissed under Order 41, Rule 11, Code of Civil Procedure.