Sudama v. Board of Revenue, U. P, At Allahabad — 1965 DIGILAW 223 (ALL)

ORDER S.N. Singh, J. - This petition under Article 226 of the Constitution arises out of a suit u/s 56/180, U.P. Tenancy Act. 2. One Ahmad Yar Khan, opposite party No. 3, filed the suit for a declaration that he was the hereditary tenant of the plot in suit on the basis of a lease executed on the 2nd of June, 1951. His case was that Smt. Sudama was the original tenant, who remarried with the result that the plots in suit reverted to the zamindar who executed the aforesaid lease in favour of the Plaintiff. He further said that Sri Krishna, Ganga, Sudhi and Asharfi Defendants had unlawfully occupied the land in suit. Defendant No. 6, Sri BrijKishore, was impleaded, being the zamindar of the plots in suit. It appears that during the pendency of the suit the State of U.P. and the Gaon Sabha, Markhapur were also impleaded in view of Rule 110B read with Rule 7 of the U.P. Zamindari Abolition and Land Reforms Rules. 3. The Plaintiff's case was admitted by Defendant No. 2, Sri Krishna. Defendants Nos. 1 and 3 to 5 filed a joint written statement contesting the claim of the Plaintiff and disputing the right of the Plaintiff to get the relief claimed. The trial court, on a consideration of the evidence adduced before it, held the Plaintiff's case proved and decreed the suit. It, however, ordered that execution could not take place till the Sanad was cancelled u/s 12 of the Act X of 1949. 4. Against the decree of the trial Court the Petitioners preferred an appeal but in this appeal they did not implead the State of U.P. and the Gaon Sabha as Respondents. At the. time of hearing of the appeal this mistake was discovered and, it is submitted on behalf of the Petitioners that, before the Additional Commissioner they sought permission to implead the State and the Goan Sabha on the ground that, since the decree did not disclose the State of UP and the Gaon Sabha as parties, the Petitioners counsel did not implead them. This request of theirs appears to have been refused, and the first appellate Court proceeded with the case and, considering the appeal to be incompetent, dismissed it. This request of theirs appears to have been refused, and the first appellate Court proceeded with the case and, considering the appeal to be incompetent, dismissed it. The Petitioners filed a Second Appeal before the Board and made several submissions before it, but the Board without meeting the relevant submissions made by the Petitioners dismissed the appeal. Hence this petition to this Court. 5. No body has appeared for the Respondents in this case. I have heard Sri. G.N. Verma, learned Counsel for the Petitioners, in support of the petition and, in my opinion, his submissions have much force and this petition should succeed. The Plaintiff had filed a suit for the ejectment of the Petitioners along with opposite party No. 4 Sri Krishna and the suit of opposite party No. 3 for ejectment was decreed against the Petitioners. The Petitioners were aggrieved against the decree passed in favour of opposite party No. 3 Ahmad Yar Khan, and Ahmad Yar Khan was a necessary party to the appeal. In the appeal no relief was claimed against the State of U.P. and the Gaon Sabha. The only relief claimed by the Petitioners was for he dismissal of the suit of Ahmad Yar Khan. The State of U.P. and the Gaon Sabha could have been impleaded in the appeal, but it cannot be said that they were necessary parties. It is not obligatory for a Defendant to implead his co-Defendants as proforma respon dents in an appeal (vide 1944 AWR 188 (HC), Thakur Prasad Kalwar v. Ram Khelawan). 6. All the psrsons who are necessary-parties in a suit cannot necessarily be necessary parties to an appeal unless the Statute makes it necessary. The suit having been decreed only in favour of Ahmad Yar Khan, in my opinon, the State of U.P. and the Gaon Sabha were not necessary parties in appeal arising out of the ejectment suit against the Petitioners. In any view of the matter even if the lower appellate Court thought that they were proper parties, it should have exercised its jurisdiction under Order XLI, Rule 20 and should nave impleaded them as parties. In any view of the matter even if the lower appellate Court thought that they were proper parties, it should have exercised its jurisdiction under Order XLI, Rule 20 and should nave impleaded them as parties. Further, I find that, since the names of the State of U.P. and the Gaon Sabha were not to be found in the trial Court's decree, the non implead-ment of these parties could have been condoned, for it is a well established principle of law that no one should suffer for the mistake of the Court. If the decree did not disclose the names of these parties, the Petitioners could justifiably urge before the Court that no decree having been passed in favour of these persons, it was not necessary for the Petitioners to have impleaded them. Therefore, in my opinion the first appellate Court erred in dismissing the appeal on this preliminary point. 7. All the submissions that have been made before this Court were made before the Board as well, but the Board though mentioned the contentions of the parties did not mention as to why the submissions made by the Appellants were not acceptable to it, The Board has only said that non impleadment of the State U.P. and the Gaon Sabha was deliberate and, in the view of the Board, the first appellate Court was not wrong in throwing out the appeal. This is in sum and substance the decision of the Board while upholding the judgment of the first appellate Court. It has not at all mentioned the reasons why the submissions of the Appellants were not acceptable to the Board. 8. In my view the opposite parties Nos. 1 and 2 have erred in dismissing the appeal on the preliminary ground. Their judgments have to be quashed. Consequently this petition succeeds. The orders of the Board and the Additional Commissioner, dated 24.4.1957 and 4.4.1957 respectively are quashed. The result is that the appeal before the Addl. Commissioner will be deemed to be pending and the learned Addl. Commissioner will proceed to decide it on merits. If the learned Addl. Commissioner consideres proper he may get the State of U.P. and the Gaon Sabha impleaded as parties to the appeal before him.