ORDER U.C. Maheshwari, J. Aforesaid both the appeals are arising out of same judgment and decree dated 10-12-1992 passed by the Additional District Judge, Panna, M.P. in Civil Regular Appeal No. 55-A/92. Thus, both are being decided by the common judgment. For the sake of convenience hereinafter the Appellant of Second Appeal No. 175/93 is said to be plaintiff while Appellant of Second Appeal No. 21/93 is said to be the defendant No. 2. The facts giving rise to these appeals are that the plaintiff had filed a suit in the trial Court for declaration and possession of the agricultural land situate at village Kakarhati bearing survey No. 1801, 1814 and 2037/1. As per averments of the plaint initially these lands belonged to one Mangaliya who survived by his two sons namely Gani and Mahagoo. The partition had taken place in between them in presence of the panchas on 30-3-1972. According to it the land bearing survey No. 2037/1 was given to Mahagoo while the land bearing survey Nos. 1801 and 1814 was given to Gani. Although the land was not mutated in revenue record accordingly but both the brothers remained in their separate possession as per partitioned. After demise of Gani his two sons namely Sher Mohd. and Sheikh Mohd. had cultivated his land. It is further alleged by the plaintiff that in the old age of Mahagoo he was happy with the plaintiff. Therefore, he gifted his all movable and immovable properties including the aforesaid land to the plaintiff. This gift had taken place orally in 1979 subsequently on 12-2-1979 it was written down on papers thereafter, said Mahagoo died in February, 1979. As alleged after his demise the defendant No. 2 Ramratobaba and defendant No. 4 Gullabi son of Param had started some interference in the interest of the plaintiff. In 1980 the aforesaid plaintiff was dispossessed by them. In spite plaintiff objection the halka patwari had submitted a report to revenue Court that said Mahagoo died without any heirs. Consequently the said land was declared the Government land by order dated 15-9-1982 by virtue of Section 177 of the M.P. Land Revenue Code, 1959. But plaintiff remained Bhumiswami of such land. It is further pleaded that the impugned suit was filed for declaring the aforesaid order dated 15-9-1982 as ab-initio void but simultaneously on grounds available against other defendants. Consequently the said land was declared the Government land by order dated 15-9-1982 by virtue of Section 177 of the M.P. Land Revenue Code, 1959. But plaintiff remained Bhumiswami of such land. It is further pleaded that the impugned suit was filed for declaring the aforesaid order dated 15-9-1982 as ab-initio void but simultaneously on grounds available against other defendants. The prayer was made against them for declaration and possession of the said land. The public temple in the name of Gouri Shankar Mandir remained in existence since last many years on some part of survey No. 2037/1. By filing written statement on behalf of defendant respondent-State of M.P. it was contended that concerning property was neither belonged to Mahagoo nor partitioned between Mahagoo and Gani. The aforesaid alleged gift/will by Gani in favour of plaintiff was also denied. The order of the Tahsildar in respect of vesting the land in the State was justified and prayed for dismissal of the suit. In written statement filed on behalf of defendant Nos. 2 and 3 (appellant of S.A. No. 21/93 and Mohan), it was pleaded that the aforesaid land never remained the property of Gani and Mahagoo. The land bearing survey No. 2037/1, on which the old temple namely Gauri Shankar Mandir is in existence remained in possession with temple as its property. In any case the right of Bhumiswami had been perfected by its deity long back by adverse possession also but committing fraud during settlement Mangaliya had got endorsed his name over it in the revenue record while he had no right to it. Sher Mohd. and Sheikh Mohd. had also not having any right in it. According to khasra filed by the plaintiff the existence of such old temple has been shown in it. Thus, without impleading the temple or its deity the suit was not maintainable and liable to be dismissed on this count alone and prayed for dismissal of the suit. The defendant No. 5 Sheikh Mohd. by filing his written statement has contended that the aforesaid land had remained joint property of Gani and Mahagoo, although, it was recorded in the name of Mahagoo. The factum of will and gift was denied. It is also pleaded that being nearest legal representative of deceased Mahagoo, he is the only bhumiswami of the land and prayed for dismissal of suit. The factum of will and gift was denied. It is also pleaded that being nearest legal representative of deceased Mahagoo, he is the only bhumiswami of the land and prayed for dismissal of suit. In view of the aforesaid pleadings after framing the issues evidence was recorded. On appreciation of it the suit was dismissed by the judgment and decree dated 21-8-1989 by trial Court, the Civil Judge Class-I, Panna in Civil Suit No. 16-A/85. On appeal by the plaintiff Smt. Bismilla Usmani the same was partly allowed by decreeing the suit in favour of the plaintiff for some part of said land by passing a preliminary decree for the partition, possession and some other reliefs while the partition was not prayed in suit. As per this preliminary decree l/3rd land of survey No. 2037/1 was directed to be given to the plaintiff. Being aggrieved by the said appellate decree the Second Appeal No. 21/93 was preferred by the defendant No. 2 only in respect of survey No. 2037/1 while the plaintiff has filed another appeal S.A. No. 175/93 against part dismissal of her suit. The Second Appeal No. 21/93 was admitted for final hearing on 15-9-1993 on following substantial questions of law: i. In the absence of deity of Gauri Shankar being made party to the suit whether the suit is maintainable? ii. Whether the trial Court has rightly exercised jurisdiction in admitting the evidence under Order 41, Rule 27, Code of Civil Procedure? While Second Appeal No. 175/93 was admitted for final hearing on the following substantial questions of law by order dated 7-2-1996: i. Whether the lower appellate Court erred in granting relief of partition which was neither pleaded nor claimed by the Appellant? ii. Whether the lower appellate Court erred in not granting decree to a full share in Kh. No. 1037/1 when by Ex. P-2 the gift was made in favour of the Appellant by Meghu the original owner of the property? iii. Whether the lower appellate Court totally overlooked that on death of Meghu the original owner of his heirs inherited his share after giving l/3rd share to the Appellant and no question of the partition arises at all? iv. Whether the lower appellate Court acted illegally granting the decree for possession of Kh. iii. Whether the lower appellate Court totally overlooked that on death of Meghu the original owner of his heirs inherited his share after giving l/3rd share to the Appellant and no question of the partition arises at all? iv. Whether the lower appellate Court acted illegally granting the decree for possession of Kh. No. 1037/1 against the respondent No. 2 to 4 who were encroacher and had no right, title or interest in the suit property? Learned Counsel for the defendant No. 2 Appellants in Second Appeal No. 21/93 Mr. Ankit Pandey has submitted that according to Khasra entries the aforesaid old temple remained on part of survey No. 1037/1 and possession of remaining part of this survey number remained with said temple. He also referred certified copy of the khasra panchshala in support of his argument. According to him the said temple along with Yagaya Sthali with other construction relating to temple are mentioned in it. It was also said that their khasra entries are sufficient to draw the inference regarding existence of temple and its right. It is also submitted that on the day first when the suit was filed or prior to it. This factum was known to the plaintiff. Beside this in the documents of plaintiff on which she is claiming the propriety, the temple was mentioned in spite of it temple or idol or the deity was not impleaded as a party in the suit and in the absence of deity or temple as party on the record, such suit was not maintainable. As per his submission the deity is always treated as minor under the law. According to him no effective decree could have been passed in the absence of said temple as party on record. He also assailed the order sheet dated 10-12-1992 by which an application filed by Appellant under Order 6, Rule 17 of the CPC to plead the aforesaid objection in written statement was dismissed on the ground that such amendment was necessary to adjudicate the question involved in the suit but it was wrongly dismissed by the appellate Court. He also placed reliance on some decided case laws in this regard. He also placed reliance on some decided case laws in this regard. On another question of law he has submitted that the appellate Court has wrongly considered the Bhuadhikar and Rinpustika filed by the plaintiff at the appellate stage along with an application under Order 41, Rule 27 of the CPC while no opportunity was given to the defendant to submit the documents in rebuttal. So far substantial question of law framed in appeal of plaintiff S.A. No. 175/93 is concerned, he has submitted that the merits of all such questions of law could not be examined in the absence of said temple and deity on the record because the possession of the land along with protected rights are with the temple. Thus, plaintiff is not entitled to get any relief in her appeal and prayed for setting aside the impugned decree by allowing her appeal and said application. While responding the aforesaid arguments of the defendant No. 2, (the Appellant of S.A. No. 21/93) the counsel for the plaintiff (the Appellant of S.A. No. 175/93) has submitted that the suit was filed for declaring the order dated 15-9-1982 as null and void passed by the Tahsildar in the proceeding u/s 177 of the M.P.L.R. Code but on grounds available declaration of title and possession against some other defendants were also prayed. According to his submission the interest of said temple was duly represented by said Ramrato Baba defendant No. 2, the Appellant of S.A. No. 21/93. Thus, even in the absence of the temple or deity as party in the suit if the case was decided on merits with cogent reasons then the appellate Court has not committed any error in entertaining the suit. He further submitted that the application under Order 41 Rule 27 filed by him was dismissed by the appellate Court vide order dated 10-12-1992. Thus, the arguments in that respect is not having any force and submitted that both the substantial questions of law framed in S.A. No. 21/93 be decided negative. Against the defendant he further submitted that in the facts and circumstances the appellate Court has committed grave error in dismissing her suit in part and also in passing the preliminary decree for partition while by virtue of Ex. P/2 plaintiff was to be declared the sole owner of the property. Against the defendant he further submitted that in the facts and circumstances the appellate Court has committed grave error in dismissing her suit in part and also in passing the preliminary decree for partition while by virtue of Ex. P/2 plaintiff was to be declared the sole owner of the property. He has submitted that the appellate Court has wrongly passed the decree against the respondent Nos. 2 to 4 while they were encroachers and had no right in the suit property and prayed for modifying the impugned judgment and decree by deciding all questions of law affirmative as framed in her appeal S.A. No. 175/93. He also cited some decided cases of different High Courts and submitted that deity was not necessary party as its interest was defended by other defendants on record and also prayed for dismissing the appeal of defendant, S.A. No. 21/93. In view of the aforesaid submission, I have gone through the record of the trial Court as well as the appellate Court. The question regarding necessary party as framed in S.A. No. 21/93 requires consideration first because on deciding it affirmative other questions framed in both the appeals will have to remain open on remanding the case. Thus, the said first question has fallen up in consideration. It is apparent that the name of said Gourishankar temple deity along with some other construction was recorded in the khasra maintained by the revenue department. It was also mentioned in the document of plaintiff. Thus, on the day first when the suit was filed and prior to it, it was known to the plaintiff that the interest of deity or temple is also involved in this case but deity or temple was not impleaded as party in the suit. In his absence no effective decree could have been passed. As per settled position of law person who is in possession and having any kind of rights in the property and any title suit is filed in respect of such property then such person is a necessary party but in spite the endorsement regarding existence of temple in revenue record and also in the alleged gift document of plaintiff the said temple or its deity was not impleaded as party in the suit. The rights, title and possession of deity were not examined in his presence. The rights, title and possession of deity were not examined in his presence. Although normally plaintiff is the sole dominus litis of his litigation and has right to implead the party in the suit as per his choice and he cannot be insisted to implead any one as party in the suit but where no effective decree can be passed in the absence of such party then Court has to decide such question about impleadment of such person as party. This question was answered by the Apex Court in the matter of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, in which it is held as under: (h) CPC (1908) Order 1, Rules 3 and 10 - Suit u/s 5(3), Charitable and Religious Trust Act - Deity should be joined as party - Effect of non-joinder-Addition at late stage of appeal under Article 133 of the Constitution - [Charitable and Religious Trust Act (14 of 1920), Section 5(3)]. (Placitum) In a suit u/s 5(3) of the Charitable and Religious Trusts Act, 1920, for a declaration that the deity and the properties attached to the temple were not under a public trust but were the private properties of the plaintiff and that the defendants as representing the entire Hindu Community had no right whatever, it is necessary that the plaintiff should join the deity at least as a proper party to the suit. It is incumbent to have all necessary parties, so that the declaration may be effective and binding. In the absence of a deity a declaration given against the interests of the deity will not bind the deity, even though the Hindu Community is as such may be bound. Where the plaintiff stoutly opposed the request of the defendants to bring on record the deity as a party in the lower Court the Supreme Court would not allow the deity to be joined as a party at the late stage of appeal under Article 133. Pramatha Nath Mullick v. Pradyumnakumar Mullick . This question was also considered by the Full Bench of the High Court of Allahabad in the matter of The Banaras Bank Ltd. v. Bhagwan Das and Ors. Pramatha Nath Mullick v. Pradyumnakumar Mullick . This question was also considered by the Full Bench of the High Court of Allahabad in the matter of The Banaras Bank Ltd. v. Bhagwan Das and Ors. reported in AIR 1947 (34) All 18 in which it was laid down as under: A preliminary objection has been taken to the hearing of this appeal upon the ground that the appeal was incompetent inasmuch as the creditors, whom the Appellant omitted to implead in the appeal, were necessary parties and that without presence of the said creditors before the Court, no effective decree could be passed in the appeal. The decision of this objection would depend upon the answer to the question as to whether the creditors omitted from the memorandum of appeal were necessary parties. Who is the necessary party has not been defined in the Code of Civil Procedure. But as a result of decided cases it may be laid down that there are two tests by which this question must be determined. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly it should not be possible to pass an effective decree in the absence of such a party. Applying these tests, I have no doubt that the creditors of a landlord who has claimed relief under the Encumbered Estates Act are necessary parties to the proceedings under that Act. In view of the aforesaid if the case at hand is examined then it is apparent that in the absence of necessary party the deity as alleged who was in possession of the property, no effective decree could have been passed if it is passed then it could not be said to be a valid decree. The case laws cited on behalf of the plaintiff are not helping to him. On the contrary it gives sound in support of aforesaid legal position. Such citations are taken up for consideration one by one. In the matter of Chamelibai Vallabhadas and Others Vs. Ramchandrajee and Others, is concerned. In this case the deity was not in possession of the property and suit filed by the shebait was not found maintainable. As analogy the deity was found necessary party in the suit. Such citations are taken up for consideration one by one. In the matter of Chamelibai Vallabhadas and Others Vs. Ramchandrajee and Others, is concerned. In this case the deity was not in possession of the property and suit filed by the shebait was not found maintainable. As analogy the deity was found necessary party in the suit. In the matter of Gajanan Maharaj Sansthan Shegaon v. Ramrao Kashinath reported in 1954 NLJ 152 : AIR 1954 Nag 212. In this case it was decided that the plaintiff Sansthan can only act through a person, although it has a juristic entity. The possession of the Manager of such institution is analogous to that of the next friend of a minor. Thus, it is apparent that on behalf of the Gajanan Maharaj Sansthan the suit was filed through Manager but not only in the name of the Manager. In the matter of Thakur Govind Deoji Birajman and Others Vs. Susalli and Others, , in which it was decided that in the interest of idol or its property the main consideration is the competency of the person to file suit on behalf of the idol. It shows that suit should be filed on behalf of the idol by impleading him as party. In the matter of Jogesh Chandra Bera and Others Vs. Sri Iswar Braja Raj Jew Thakur, , it is apparent from the case the said suit was filed on behalf of deity by an incompetent person as next friend of deity although the suit was found not maintainable but the fact remains that the suit was filed in the name of deity not in other name. Thus, according to the aforesaid citations the deity or temple is also the necessary party for passing the effective decree regarding title and possession of the property. In the case at hand as per revenue record and other documents the property either in part or whole remained in possession of the temple and the temple is also in existence on such land. Therefore, the temple or deity was the necessary party in the suit. In view of the aforesaid discussion all other substantial questions of law as framed in both the appeals could not be adjudicated in absence of said temple or deity. Therefore, the temple or deity was the necessary party in the suit. In view of the aforesaid discussion all other substantial questions of law as framed in both the appeals could not be adjudicated in absence of said temple or deity. Therefore in view of foregoing reasons the interlocutory order dated 10-12-1992 passed by the appellate Court and judgment and decree of both the Courts below are set aside by allowing the S.A. No. 21/93 filed by the defendant in part. The amendment application dated 16-3-1992 filed by the defendant in First Appeal is also allowed and this matter is remitted back to the trial Court for deciding afresh with following directions: a. Copy of the application dated 16-3-1992 filed under Order 6 Rule 17 before the 1st Appellate Court be sent to the trial Court for further compliance of the case. defendant may incorporate the said amendment in the written statement within one month. b. plaintiff Smt. Bismilla Usmani would be at liberty to take appropriate step to implead the said temple or deity as party in the suit in accordance with law, if she wants to prosecute the suit. Such steps should be taken within three months from the first appearance before the trial Court. She will be at liberty to amend her pleadings in rebuttal of said amendment of written statement. d. Parties would be at liberty to raise all probable and available pleas and objections along with all questions as they have raised before this Court or before subordinate appellate Court. e. The trial Court would be at liberty to decide the case afresh without influencing any directions or observations made by the 1st Appellate Court in its judgment and decree. f. Parties are directed to appear before the trial Court on 15-12-2005. In view of the aforesaid S.A. No. 21/93 is allowed in part and on its findings the S.A. No. 175/93 is also disposed of accordingly as said above. The judgment and decree of both the Courts below are set aside and the suit is remitted back to the trial Court for a fresh adjudication with aforesaid directions. There shall be no order as to costs. The decree be drawn up accordingly. Final Result : Allowed