JUDGMENT A.U. Khan, Member - The facts are: Ram Faqir and Soti Ram institute this law suit under Section 229-B Z.A. Act for a declaratory judgment that they are sirdar tenants in possession of the land. The pleading has set forth the contention that tenure originally belonged to ancestor Sohar. On his death his four sons succeeded to share each. When consolidation was on a chak to Mata Prasad son of Lachchu was allotted but was under their cultivation; since they were sharing in joint living and cultivation. Mata Prasad son of Lachchu died on 28.12.1965. They have succeeded to the tenure as nearest legal heir. Their application for mutation under Section 34 L.R. Act was dismissed on 30.4.1968. It is complained that Ram Prasad D/7 has deposited ten times of land revenue and has executed a sale-deed to D/1 to 6 on 21.9.1966. The vendees, then, moved an application for mutation; Sub-Divisional Officer orders on 20.3.1967 for entry of their names. So they had to move a restoration application which is going apace. It is clarified that defendants D/1 to D/6 have no concern whatsoever and are not bhumidhar tenants in possession. It is alleged that Ram Prasad son of Gannu is the man who has impersonated as Mata Prasad son of Lachoo to deposit ten times of land revenue and has executed the sale-deed. The relief for declaration a sirdar tenants in possession has been prayed for. 2. The suit is resisted by defendant Jhindu D/1 through a written statement lodged on 30.10.1968. The pleading has set forth the contention that plaintiffs are not in possession and suit is barred under Section 34 Specific Relief Act. He is bold enough to state that tenure-holder Mata Prasad son of Lachoo is alive; no question of plaintiffs succeeding to his estate arises. The statement of Mata Prasad was lately recorded in mutation proceedings. The suit is bad Tor non-joinder of Mata Prasad. Further case is that Lachoo had died when Mata Prasad was a minor and his mother re-married with one Gannu. So Mata Prasad have gone with his mother to the household of his step-father Gannu. By this re-marriage a son Sita Ram was born to her. Consolidation operation set it, plaintiff's attempted to usurup the land by setting forth that he is unheard of for 50 years. Mata Prasad got scent of this and appeared. So Mata Prasad have gone with his mother to the household of his step-father Gannu. By this re-marriage a son Sita Ram was born to her. Consolidation operation set it, plaintiff's attempted to usurup the land by setting forth that he is unheard of for 50 years. Mata Prasad got scent of this and appeared. The plaintiff's have to roll back; their claim in objection was dismissed. Mata Prasad, then, deposited ten times of land revenue and became bhumidhar. He has surely executed the sale-deed in favour of defendants who are in possession. The plaintiffs are not ready to give in. They lodge a report of death of Mata Prasad in Birth and Death Register in forth in with Pradhan. Now they move for mutation of their names but Mata Prasad appeared and Tahsildar had to dismiss the application on a finding, that Mata Prasad is alive. Plaintiff's have set forth in consolidation that Mata Prasad was unheard of for 50 years; now they plead he was sharing in joint cultivation with them. Plaintiffs have no right, title or interest and are not in possession. The relief to dismiss the suit has been prayed for. 3. On the pleadings of the parties five issues were formulated on 22.3.1969. Two more added on 9.6.1969. Parties given chance to lead their evidence; documental and oral. They have made their representation. On 14.2.1979 Assistant Collector, First Class enters an order decreeing the suit. 4. Defendant Ram Kishore's lodged an appeal in Commissioner's. On 20.2.1985 Additional Commissioner has reversed the judgment of court below; the suit of plaintiff Ram Fagir's is dismissed. So this second appeal has been carried by plaintiff Ram Fagir's. While this suit lay here, Ram Fagir has died and has been substituted by his son Ram Prasad's. For appreciation of controversy the following geneological table will help: The pedigree is not in dispute. 5. Heard the counsel for the parties and perused the record. 6. It admits of no doubt that tenure-holder was Mata Prasad son of Lachoo. In consolidation a separate chak was allotted. The defence case pleaded and found proven upon evidence is that, his father Lachoo had died when son Mata Prasad was a minor. His mother re-married with one Gannu and from this union a son Sita Ram was born. 6. It admits of no doubt that tenure-holder was Mata Prasad son of Lachoo. In consolidation a separate chak was allotted. The defence case pleaded and found proven upon evidence is that, his father Lachoo had died when son Mata Prasad was a minor. His mother re-married with one Gannu and from this union a son Sita Ram was born. By reason, of this re-marriage Mata Prasad went along with his mother to the household of Gannu in village Cheolia, district Varanasi. Mata Prasad was successor to his father's share but he did not ordinarily live in village where the land and his ancestral bearing was. This became a problem. Plaintiffs are cousins. They did cast a coveteous eyes on Mata Prasad's estate and wanted to appropriate his land. When consolidation was going apace Ram Fagir's P/1 filed a claim in objection that Mata Prasad is unheard of for the last 50 years. This objection was dismissed because Mata Prasad appeared to set forth his claim and contention. A chak was allotted of his share. Since Mata Prasad was not ordinarily living in the village, he thought it proper to deposit ten times of land revenue, became bhumidhar and executed a sale-deed in favour of Jhinguri's D/1 to D/6. Their mutation application was allowed; a protest in the form of restoration did not finally succeed. In this background plaintiffs devised a new expedient. They lodge a report of death of Mata Prasad son of Lachoo and move for mutation of their names. This effort fails too. Additional Commissioner has elaborated these crucial points and have stressed their importance again and again. When the effort in consolidation and in mutation came to no fruitful and, plaintiffs have filed a regular suit claiming that Mata Prasad son of Lachoo has died on 28.12.65. This is incorrect because Mata Prasad had later on appeared and his statement was recorded in mutation proceeding. It is quite incorrect to claim that Mata Prasad was ever sharing in cultivation. Indeed, he did not live in the village and was not sharing in cultivation with Ram Faqir's. 7. The learned counsel for the appellant has argued all the points taken in the grounds of appeal but evidence and circumstances on records do not support his contention. 8. Indeed, he did not live in the village and was not sharing in cultivation with Ram Faqir's. 7. The learned counsel for the appellant has argued all the points taken in the grounds of appeal but evidence and circumstances on records do not support his contention. 8. A point has been raised that when appeal lay in Commissioner's substitution order was not passed on death of appellant Jamindar. It appears the application for substitution was moved within limitation on 5.11.1984 but no order was inadvertently passed. My predecessor on 9.5.1989 has held this an omission on the part of Additional Commissioner. No benefit can accrue to appellant's here. Order dated 9.5.1989 has become conclusive between the parties. 9. On the basis of available evidence on record I find that appellant's are riot in possession over the land. They have not set forth a relief for restoration of possession. The suit is clearly barred under Section 34 Specific Relief Act. 10. On the date the suit was filed in 1968, Mata Prasad son of Lachoo was alive. He was a necessary party as a disputed vendor of the land but was not impleaded as a defendant. The suit deserves dismissal for non-impleadment of a necessary party. 11. The land was sirdari tenure. Land revenue was deposited for acquisition of bhumidhari sanad. Plaintiffs Ram Faqir's never sought relief for cancellation of sanad bhumidhar under Section 173-A Z.A. and L.R. Act. Also sale-deed of the land was executed on 21.9.1966. Plaintiff's never sought cancellation if it was not executed by true tenure-holder Mata Prasad. These two failures show that claim is incorrect that Ram Prasad son of Ganno has applied for Sanad Bhumidhari and executed the sale-deed. 12. On a consideration of the material on record, I find no force in appeal. Second appeal is dismissed.