JUDGMENT : Heard Mr. Th. Ibotombi, learned counsel appearing for the appellants. None appears for the respondents. 2. This is a second appeal filed under Section 100 of CPC challenging the impugned judgment and order of the learned District Judge, Manipur East dated 23.02.2010 passed in Civil Appeal No. 9 of 2000, wherein, the learned District Judge set aside the judgment and decree dated 23.03.2009 passed by Civil Judge (Sr. Divn.), Manipur East in O.S. No. 11 of 1999/5 of 2003 and remanded the case to the same Court for fresh trial. The relevant portion of the judgment of the learned District Judge reads as follows : “6. Being aggrieved by the said impugned order dated 23-3-2009 the appellants have preferred this appeal stating various grounds that the trial court mis-appreciated both law and facts of the suit and passed the impugned judgment and decree. It is also stated that the trial court did not discuss properly the evidence led by both the parties. It has presumed imaginary fact which is not pleaded in the plaint and the written statement. The trial court passed the impugned order by giving full emphasis only on the documents of the plaintiffs and their witnesses and the suit lands as properties left by Waikhom Bisheshore Singh. It is also stated that the impugned judgment and decree has been passed against the dead person who is the defendant No. 2 in the referred suit and it has also passed the said impugned order without discussing the necessary parties and without impleading the necessary party Thokchom Bidur Singh who is the father of the defendants No 1 to 8. It is also stated that the trial court passed the impugned and decree in favour of the plaintiffs without giving any good reason for all the issues and the same are baseless. Hence, the appellants pray to quash the impugned order dated 23-3-2009. 7. I have heard both the ld. Counsel of both the parties and gone through the relevant documents on record. Both the ld. Counsel of both the parties admit the fact that the husband of Maipakpi Devi who is the only daughter of late Chandra Singh is not impleaded as party in the suit in spite of the plea of the appellants/defendants. Counsel of both the parties and gone through the relevant documents on record. Both the ld. Counsel of both the parties admit the fact that the husband of Maipakpi Devi who is the only daughter of late Chandra Singh is not impleaded as party in the suit in spite of the plea of the appellants/defendants. In a suit for partition and separate possession joint family property all the legal heirs should be arrayed as party in the suit, on admission, the suit can be dismissed as held in S.D. Ayyakamar v Somarendaram 2002 AIHC 1138 (1141) (Mad). Though no suit shall be defeated for non-joinder of parties there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to the suit infirmity of the suit is barred to be fatal. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed. They are parties who ought to have been joined. Order 1 Rule 10(2) C.P.C. In the present case the father of the defendants No. 1 to 8 Thokchom Bidur Singh has got the same right as those of the defendants No. 1 to 8 being the husband of late Maipakpi Devi. So, he is a necessary party and the judgment and decree cannot be decided properly accordingly to law. Thus, the court below has committed error while passing the said impugned judgment and decree. However, it will not be reasonable to dismiss this case on merit without impleading the necessary party to the suit and without giving chance of being heard to be concerned parties in the suit. Hence, it is ordered that the impugned judgment and decree dated 23-3-2009 passed by the Civil Judge, Senior Division No. 11, Manipur East in the Original Suit No. 11 of 1999/5 of 2003 is set aside and the case is remanded for fresh trial. Send back the lower court case record along with a copy of the order for information. Announced in the open court.” 3. Being aggrieved by the judgment and order of the First Appellate Court, the plaintiffs filed the present appeal on the grounds as follows (the grounds reproduced here are in verbatim of what is given in the appeal): “GROUNDS (a) Because the ld. District Judge, Manipur East passed her judgment and decree dt. Announced in the open court.” 3. Being aggrieved by the judgment and order of the First Appellate Court, the plaintiffs filed the present appeal on the grounds as follows (the grounds reproduced here are in verbatim of what is given in the appeal): “GROUNDS (a) Because the ld. District Judge, Manipur East passed her judgment and decree dt. 23.02.2010 illegally and whimsically to implead a deceased person (dead person) as necessary party knowingly that the said Th. Bidur Singh is a deceased person and further directed the Plaintiffs/Appellants to start a fresh suit by impleading the said deceased Bidur Singh as party, without applying her judicial mind that a deceased person is not authorised by the law to implead as party. (b) Because the ld. District Judge, Manipur East despite of knowing the fact that the Plaintiffs/Appellants filed their suit against all the sons and daughters of late Bidur Singh in the Original Trial Court without suffering from any defect of party and judgment and decree dt. 23.03.2009 of the Original Trial Court (Civil Judge, Sr. Divn. No. II, Manipur East) was also passed against all the sons and daughters of late Bidur Singh but the ld. District Judge, Manipur East despite of it, have passed her judgment and decree with sudden and abrupt that the said deceased Bidur Singh should be impleaded as party. (c) Because the First Appellate Court had forgotten the presumption of law that assuming but not admitting the said deceased cannot be impleaded as party if a dead person is arrayed as party, the suit will be amount to file against such a dead person. (d) Because ld. District Judge, Manipur East at the time of examining the issue No. 6 did not discuss properly and minutely the Plaint and Written Statement, more particularly the allegation made in Para No. 16 of the Written Statement where the Issue No. 6 had emerged due to the outcome of Para No. 16 of the Written Statement in which the question of impleading late Th. Bidur Singh as necessary party were never been raised or informed before the Original Trial Court by the Defendants who are Respondents of this Hon’ble Court as a question of impleading deceased Bidur Sigh as party had been raised by the Defendants subsequently or ultimately only in the First Appellate Court (District Judge, Manipur East) when they filed/preferred their First Appeal. (e) Because deceased Th. Bidur Singh having no interest and title and also not entitled to any share in the suit land mentioned in Schedule A to F of the Plaint was/is not a necessary party to implead in the suit. Assuming that he was impleaded as party, his evidence would have been nothing to prove and help the Court to give a just decision. (f) Because the said Bidur Singh, even though a deceased person, the Defendants never informed the Trial Court or First Appellate Court when and where the said Bidur Singh died, now Bidur Singh is a deceased but they should have informed the Court as to the death of Bidur Singh, moreover, the Defendants who were the Appellants before ld. District Judge, Manipur East never also informed the death of Smt. Thokchom Ningol Nganbi Devi, Defendant No. 2 and Thokchom Ningol Bilashini Devi, Defendant No. 1 in the Original Trial Court (Civil Judge, Sr. Divn. No. II, Manipur East) but only in the appellate stage before the ld. District Judge, Manipur East, the Defendants mentioned that Nganbi Devi, Defendant No. 2 (who was the wife of present Respondent No. 1 of this Second Appeal) died on 24.1.2009 but before filing their First Appeal in the ld. District Judge, Manipur East, they never mentioned or hinted even a word in the Original Court as to the death of Bilashini Devi and Nganbi Devi, Defendant No. 1 and 2 respectively, concealing such facts by the Defendants blaming the Trial Court stating that Trial Court passed its judgment and decree against the deceased person, if Nganbi Devi and Bilashini Devi were dead they should have amend their written statement giving information in the Trial Court but taking slightly such a legally bounded duty owed to them were not done by the present respondents. Such concealment of fact is just deceiving of the Original Trial Court as well as this Hon’ble Court by the Defendants/respondents taking undue advantage when they filed in their First Appeal. (g) Because the ld. Such concealment of fact is just deceiving of the Original Trial Court as well as this Hon’ble Court by the Defendants/respondents taking undue advantage when they filed in their First Appeal. (g) Because the ld. District Judge, Manipur East did not consider the points which were admitted by the Defendants (who are now respondents before this Hon’ble Court) the contents of the plaint in regard to the suits described in Schedule A, B, C, D E and F belonged to the deceased father (late Bisheshore alias Chaoba alias Pujari Singh) of the Plaintiffs who are present appellants of the Hon’ble Court. (h) Because the First Appellate Court failed to appreciate the statements and evidence of P.Ws. which were admitted by the Defendants and D.Ws. but also could not sack by the Defendants (who are not respondents of this Hon’ble Court). (i) Because the ld. District Judge, Manipur East had passed her judgment and decree setting aside the judgment and decree of the Original Trial Court with a sudden and remanded for a fresh trial without considering the plight of the plaintiffs (now appellants) that the suit of the plaintiffs filed in 1999 but only in 2009 its judgment was announced taking 12 years consuming time, money and energy to get or seek relief of the Court and another 12 years may be taken if a fresh suit is filed or initiated. (j) Because the First Appellate Court failed to consider that the Plaintiffs/Appellants had proved their case and as such the suit should have been decided on merit instead of the directing for a fresh trial. (k) Because the findings of the First Appellate Court was perversed interference is called for in Second Appeal. (l) Because the impugned judgment and decree of the First Appellate Court suffered from illegality, malafide and unreasonableness.” 4. From the judgment and order of learned District Judge, it can be seen that the main reason for setting aside the judgment and decree of the learned Trial Court was for non-impleadment of one, Shri Thokchom Bidur Singh, H/o (L) Thokchom (O) Maipakpi Devi and F/o defendants No. 1-8 and the non-impleadment of the legal heirs of defendant No. 2 who is stated to have died during the pendency of the suit. The learned District Judge was of the opinion that husband of late Smt. Maipakpi Devi i.e. Thokchom Bidur Singh, is entitled to the property left behind by her in the same proportion as that of the defendants No. 1-8 (his children); therefore, he is a necessary party and he ought to have been impleaded in the suit. But since he was not impleaded no proper judgment and decree could have been passed in the suit. There can be no doubt that Shri Th. Bidur Singh, Hindu by religion and H/o late Smt. Maipakpi Devi, who died intestate would be entitled to his share of the properties (suit land) left behind by his wife as per Section 15(1)(a) of the Hindu Succession Act, 1956 which reads as follows : “15. General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 – (a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.” However, the question is whether he was alive when the suit was filed before the learned Trial Court. In this regard, the contents of Para No. III of the recast plaint filed by the plaintiffs on 15.12.2007 which reads as follows may be considered : “3. That Waikhom Chandra Singh the eldest son of the deceased Waikhom Bisheshore Singh died about 20 years ago and his wife Smt. Waikhom Ongbi Manjuri Devi also died about 15 years ago. The said late Manjuri Devi, w/o the late W. Chandra Singh left behind a daughter whose name was Thokchom Ongbi Maipak Devi, who had married to one Thokchom Bidur Singh, but she also died about 6 years ago leaving behind her sons and daughters Defendants No. 1 8 who were the grand daughters and grandsons of late Chandra Singh.” 5. The Para No. 3 of the plaint filed by the plaintiff given above neither mention nor indicate that Shri Th. Bidur Singh had passed away before the suit was filed. Submission of the learned counsel appearing for the appellants/plaintiffs that Shri Th. Bidur Singh, F/o defendants No. 1-8 died before the suit was filed, therefore, he was not impleaded in the suit, is not supported by any document or any evidence. Bidur Singh had passed away before the suit was filed. Submission of the learned counsel appearing for the appellants/plaintiffs that Shri Th. Bidur Singh, F/o defendants No. 1-8 died before the suit was filed, therefore, he was not impleaded in the suit, is not supported by any document or any evidence. Therefore, it would be wrong to assume that what the appellants/plaintiffs claim is true at this stage. Since the appellant/plaintiff has not shown prima facie, of his claim that Shri Th. Bidur was no more when the suit was filed it has to be assumed otherwise at least till he does so. With this in view, and the provision of Hindu succession Act already mentioned above, it is concluded that impleadment of Shri Bidur Singh as a party in the suit is necessary before drawing any conclusion in it. 6. Coming to the second ground on which the Ld. District Judge set aside the Judgment and decree of the trial Court, that is, the death of the defendant No.2 during the trial of the case before the trial Court, the contents of para 17(vi) of the appeal petition filed by the respondent/appellant in the first appealed court may be referred to. It was pleaded by the respondent/appellant before the First Appellate Court that the judgment and decree was passed against the dead person who is the defendant No. 2. The paragraph is reproduced as follows : “17. (vi) Because the Ld. Trial Court passed the impugned judgment and decree against the death person who is the defendant No. 2 in the referred suit and as such the impugned judgment and decree is to be set aside.” The above statement of the respondents/appellants was neither challenge nor denied by the appellant/plaintiff. The only submission of the counsel of the appellant/plaintiff is that the legal heirs of the defendant have been impleaded. However, this claim of the appellants/plaintiffs is not supported by the recast plaint filed by them. Therefore, the legal heirs of the defendant, if any, ought to have been impleaded. Since that was not done the Judgment and decree passed in the suit becomes nugatory and ineffectual, therefore, of no use. However, this claim of the appellants/plaintiffs is not supported by the recast plaint filed by them. Therefore, the legal heirs of the defendant, if any, ought to have been impleaded. Since that was not done the Judgment and decree passed in the suit becomes nugatory and ineffectual, therefore, of no use. To appreciate the above conclusion the relevant provision of law may be referred to briefly as follows : “Order 1 Rule 9 of CPC : No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it : [Provided that nothing in this rule shall apply to non-joinder of a necessary party]” What can be understood from the above provision of law is that when a necessary party is not made a party in a suit for that reason alone, the same shall be defeated. The question is, who is a necessary party. It has been defined by the Hon’ble Supreme Court in the case of “Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors.” reported in (1992) 2 SCC 524 as follows : “Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.” The sentence – “A necessary party is one without whom no order can be made effectively” in the above quoted portion of the judgment of the Hon’ble Supreme Court has made it clear enough that a necessary party is one without whom the whole process of the case becomes useless or meaningless. In other words, a necessary party is a person or persons without whose impleadment in a case, the decree passed in that case cannot be executed and therefore, renders the same nugatory. From what has been stated above, Shri Th. Bidur, husband of late Maipakpi Devi and father of defendant Nos. 1-8, and the legal representatives of defendant No. 2 who is stated to have died during the pendency of the suit before the Trial Court are necessary parties. Therefore, without them being impleaded the Trial Court could not have delivered an effective judgment and decree. 7. In view of what has been stated above, there is no reason to interfere in the judgment and order dated 23.02.2010 passed in Civil Appeal No. 9/2000 of the District Judge, Manipur East, the First Appellate Court; therefore, the appeal is dismissed. The Trial Court should find out whether Shri Th. Bidur Singh is still alive and if found alive, implead as a party. Further, the trial court should order impleadment of the legal hires of the defendant No.2 if there is any in compliance of the provision of Order 1 Rule 10(2) of CPC. And after completing all these, proceed with the Trial. In view of the discussions and conclusions drawn above, the questions of law considered substantial and therefore, framed earlier and given here below need no further discussion. “(1) Whether the Appellate Court has jurisdiction to consider a question before the Appellate Court which was not raised before in the original Court by the defendants/respondents? In view of the discussions and conclusions drawn above, the questions of law considered substantial and therefore, framed earlier and given here below need no further discussion. “(1) Whether the Appellate Court has jurisdiction to consider a question before the Appellate Court which was not raised before in the original Court by the defendants/respondents? (2) Whether Appellate Court has jurisdiction to remand a case for fresh trial of impleading a dead person as party, when all the L.Rs. are in the record? (3) Can Appellate Court observe a person alive where the person is apparently shown as deceased in the cause? and any other substantial questions of law which may rise for effective decision of the present appeal with the permission of the Court.” Since the litigation has been going on for about 17 (seventeen) years, the learned Trial Court will do well in disposing the case expeditiously and on priority basis. With this, the appeal is disposed. There is no order as to cost. Send a copy each of this order to the Courts below.