B. L. Yadav, J. - (1.) THIS petition under Art. 226 of the Constitution of India is directed against the orders dated 9-9-82 and 24-4-81 passed by the Board of Revenue and the Additional Commissioner respectively, allowing the impleadment application filed by respondent nos. 3 and 4 in a suit u/Sec. 176 of UP ZA and LR Act (for short the Act).
(2.) THE facts are few and controversy is still fewer. THE petitioners filed a suit no. 39/80 under section 176 of the Act for partition of 1/8 share against one Phakkar and others in respect of the land in village Chitanpur, while the petitioners filed another suit no. 40/80 in respect of the plots situate in village Dharna, Pargana Mawai, district Varanasi. Respondents nos. 3 and 5 filed an impleadment application dated 4-8-.2 alleging that the land in dispute was coming down from the time of Jhingai, the common ancestor and respondent nos. 3 and 5 were the necessary parties and they may be impleaded. Respondent no. 4, however, ?filed another similar application for impleadment on 28-8-80. These applications filed by respondent nos. 3 to 5 for impleadment were opposed by the petitioners on the ground that Mukundi, father of Hari and Hari Das (respondent nos. 3 and 4) had filed a suit under section 229-B of the Act in respect of the land in dispute, which was dismissed on 14-7-70 and no appeal or restoration was filed by respondent nos. 3 and 4 against the order dismissing the suit. Hence they cannot claim again the right which they had lost earlier as the suit filed by their father was dismissed and that they were never in possession nor they were recorded in revenue papers. Further similar objections were filed against the application for impleadment filed by respondent no. 4 that as his father had filed a suit under section 229-B of the Act on 14-7-70 in respect of the land in dispute and that suit was also dismissed, hence respondents could not claim impleadment to the present two suits filed by the petitioners as the suit on their behalf had already been dismissed and they did not file any appeal or restoration against the order dismissing those suits. Further the claim of respondent nos. 3 to 5 was barred by Order 9 Rule 9 CPC. The trial court dismissed the application for impleadment filed by respondent nos. 3 to 5. But their revision before the Additional Commissioner was recommended to the Board of Revenue lot being allowed and the same has been allowed by the impugned order.
(3.) LEARNED counsel for the petitioners urged that as the suit filed on behalf of respondent nos. 3 to 5 has already been dismissed in respect of the land in dispute and they did not file any appeal or restoration against that order, hence that order became final and was binding on them. Further as their claim has already been rejected in respect of the land in dispute, they were neither legal, necessary, nor proper parties and the Board of Revenue has committed error in allowing the revision and impleadment application by the impugned order. Learned counsel for the respondents on the other hand urged that the impugned orders were correct and further urged that even though the suit filed by respondent nos. 3 to 5 might have been dismissed in respect of the land in dispute, but they have still rights to file the present application for impleadment and the same was correctly allowed. If was further urged that as respondent nos. 3 to 5 were of the same family as the petitioners are, hence in a suit for partition they were necessary parties and impleadment application must have been allowed.;