JUDGMENT Deokj Nandan, J. - This Second Appeal is by the first defendant, Wajid Husain, and, while the plaintiffs are the respondents Nos. 1 and 2, the defendants Nos. 3 and 4 are the respondents Nos. 3 and 4, and the defendant No. 2 being dead, his heirs are respondents Nos. 5/1 to 5/11. The defendant-appellant, Wajid Husain, and the second defendant, Hamid Husain, now represented by respondents Nos. 5/1 to 5/11, were brothers being the sons of Azmat Husain. The suit was for partition. The two plaintiffs (respondents Nos. 1 and 2) are the sons of Fakhrulhasan, brother of Azmat Husain. Partition was sought of two properties; (1) a house described in clause 'Aa' of the description of the property in suit, and (2) a grove described in clause 'Ba' thereof. The trial court passed a preliminary decree for partition of both the properties declaring the plaintiffs share to be l/4th in the house described in clause 'Aa' and one-half in the grove described in clause 'Ba' at the foot of the plaint. The lower appellate Court has deleted the property in clause 'Ba' of the plaint, namely, the grove from the preliminary decree for partition on the ground that the parties were bhumidhars, and a division of the holding could not be made by the Civil Court. 2. Apart from the appeal, which has been filed by the first defendant, the plaintiffs have filed as cross-objection making a grievance out of the deletion of the grove from the preliminary decree for partition. 3. Mr. R. H. Zaidi, for the defendant-appellant, raised two contentions. First, that the land in clause 'Ba' of the property described at the foot of the plaint was not a grove, but a grave-yard, and had the Dargah of Dalel Khan thereon, and being waqf, it could not be made the subject matter of partition. This point does not arise in view of the deletion of the said land from the preliminary decree for partition by the lower appellate court and may be considered only if the cross-objection were to be allowed. 4. The second question raised by Mr. This point does not arise in view of the deletion of the said land from the preliminary decree for partition by the lower appellate court and may be considered only if the cross-objection were to be allowed. 4. The second question raised by Mr. Zaidi was that Afsari Begum was a necessary party to the suit, inasmuch as Azmat Husain, the father of the first defendant-appellant, and the second defendant, Hamid Husain, had transferred the property to her, and being a co-sharer by virtue of that transfer, the suit for partitition could not proceed in her absence. The trial court has, in the course of its finding on issue No. 5 held that the alleged sale-deed (Ext. A-l) by Azmat Husain in favour of Smt. Afsari Begum, dated the 25th May, 1945 was never acted upon, and in view of the auction sale in favour of Gamni, there was no interest left with Azmat Husain to convey, in the property, to Afsari Begum, I and that, therefore, Afsari Begum could not be said to be a necessary or proper party to the suit. It is undisputed that the two defendants Nos. 1 and 2 are the only sons and heirs of Azmat Husain, and the point that they had no share in the property said to have been transferred by their father to Smt. Afsari Begum by the sale-deed, dated the 25th May, 1945, was not a point, which might have been raised by them. Smt. Afsari Begum did not herself come forward to contest the suit, and in case she has any claim in any property in suit, she could obviously press that claim in a suit of her own. But the present suit cannot be said to be bad for non-joinder of the necessary party so long as Azmat Husain, the transferor of the alleged sale-deed, dated the 25th May, 4945, was duly represented by the defendants Nos. 1 and 2, and that too at the instance of the said defendants themselves. 5. There is thus no merit in this second Appeal and it must be dismissed. 6. As to the cross-objection, the argument raised by Mr. 1 and 2, and that too at the instance of the said defendants themselves. 5. There is thus no merit in this second Appeal and it must be dismissed. 6. As to the cross-objection, the argument raised by Mr. R. P. Goel, learned counsel for the plaintiff-appellant, was that the question of jurisdiction could not be reised before the lower appellate court unless it had been raised in the trial court before the issues were framed and unless there has ben consequent failure of justice. In the present case, the question of jurisdiction does not seem to have been raised by the defendants as there does not appear to be any issue raising the question whether the civil court had jurisdiction to try the suit. The issue rather was whether the property of clause 'Ba- in the suit is a grave-yard and on that point, it seems, the argument raised before the lower appellate Court was that the question ought to have been referred to the Assistant Collector In charge of the sub-Division Under section 551-A of the U. P. Zamindari Abolition and Land Reforms Act. The lower appellate court held that it was not a case where any issue was needed to be framed and sent for findings to the revenue court under section 551-A of the U. P. Zamindari Abolition and Lind Reforms Act and that "on the other hand it is clear that the property of Schedule 'Ba' is bhumidhari holding and its partition could not be made by civil court" and that "this appeal thus succeeds to that extent." The lower appellate court added that as the plea was not raised in the lower court and in the grounds of appeal, the appellant should not get costs. 7. It is true that the question of want of jurisdiction cannot be entertained by a civil court unless the plea was raised in the court of the first instance at the earliest possible opportunity, at or before the settlement of issues, and unless there has been a consequent failure of justice. That is so because of sub-section (1-A) of section 551 of the U. P. Zamindari Abolition and Land Reforms Act. The defendants did not raise the plea of want of jurisdiction. Obviously, the plaintiffs could not have raised it in a suit of their own. It is the lower appellate court itself, which raised the question, and. That is so because of sub-section (1-A) of section 551 of the U. P. Zamindari Abolition and Land Reforms Act. The defendants did not raise the plea of want of jurisdiction. Obviously, the plaintiffs could not have raised it in a suit of their own. It is the lower appellate court itself, which raised the question, and. having come to the finding that it had no jurisdiction, dismissed the suit in so far as concerned grove land held by the parties as bhumidhars. The question is whether the lower appellate court acted illegally in doing so. Now, a suit for partition of a holding is governed by section 176 of the U. P. Zamindari Abolition and Land Reforms Act. Sub-section (2) thereof says that to every such suit the Gaon Sabha concerned shall be made a party. The result is that in a suit for partition or division of a holding by a bhumidhar, Gaon Sabha is a necessary party. Gaon Sabha was not made a party to the suit giving rise to the second Appeal. The suit for division of the bhumidhari holding is liable to be dismissed on that ground. But it may be said that a suit is rarely dismissed for non-joinder of a party and the practice is to allow the plaintiff an opportunity to implead the necessary party left out from the suit; and since there is no limitation for a suit for partition, the fact that the plaintiffs did not make the Gaon Sabha a party, when the suit was instituted, would not prejudice it by allowing its impleadment at this stage. But the short answer to that plea is that if the Gaon Sabha were ordered to be impleaded as a defendant, the decree under appeal will have to be set aside and the suit reminded to the trial court for giving the Gaon Sabha the opportunity which would be its due, to file a written statement and contest the suit in accordance with law. If that were done, the first plea, that the Gaon Sabha would take, is want of jurisdiction. Once that plea was taken by the Gaon Sabha before the trial court, the trial court is bound to raise an issue and answer it. If that were done, the first plea, that the Gaon Sabha would take, is want of jurisdiction. Once that plea was taken by the Gaon Sabha before the trial court, the trial court is bound to raise an issue and answer it. If such an issue were raised in the present case, there could be no doubt that it would be answered by saying that the civil court has no jurisdiction to make a partition of the land, described under clause 'Ba' of the description of the property given at the foot of the plaint. 8. In view of all these considerations, the cross-objection cannot succeed and the only proper course for the plaintiffs is that they should if they are so minded, file a suit for division of the bhumidhari holding, of which the land in clause 'Ba' of the property described at the foot of the plaint forms part. 9. The cross-objection must also be dismissed. 10. In the result, the Second Appeal and the cross-objection both are dismissed There will be no order as to costs in this court.