Manoj Kumar Gupta, J. - (1.) Heard counsel for the petitioners, learned standing counsel for respondent Nos. 1 & 2, Sri Anand Kumar Yadav for respondent No. 3 and Sri Neeraj Tiwari along with Sri Shiv Bahadur Yadav for respondent No. 4.
(2.) The plaintiff respondent No. 4 instituted a suit for partition of the joint holding claiming half share therein. The petitioners, who are defendants in the suit filed an application stating that part of the joint holding has been acquired by the transport department of the Government of India and, consequently, without impleading the said department, the suit is not maintainable. The trial Court while considering the said application held that the transport department is a necessary party to the suit and since it has not been impleaded, therefore, the suit is bad for non-joinder of necessary party. Accordingly, the suit was dismissed by judgment dated 13 March 2015. Aggrieved thereby, the plaintiff respondent filed appeal No. 21/2014-15. The appeal has been allowed by holding that in case part of joint holding has been acquired, it was open to the plaintiff to exclude the said part of the property from the partition suit and for such purpose, opportunity should have been granted to him to amend the plaint instead of dismissing the suit on the ground of nonjoinder of necessary party. Accordingly, the Appellate Authority by order dated 26 October 2015 has set-aside the judgment of the trial Court dated 13 March 2015 and has remanded the matter with a direction to permit the plaintiff respondent to seek necessary amendments and, thereafter, the suit be decided on merits. The petitioners filed revision against the said order before the Board of Revenue, which has been dismissed by the impugned order dated 20 July 2016. The petitioners are, thus, before this Court.
(3.) It is submitted by learned counsel for the petitioners that since part of the suit property has been acquired by the transport department and, consequently, without impleading the said department, the suit could not proceed and, thus, the trial Court was justified in dismissing the suit for non-joinder of necessary party.;