B. Dayal, J. - (1.) A Division Bench of this Court has referred the above matter to a Full Bench. It is necessary to State briefly the circumstances which led to the reference. The Petitioner Ram Bux filed a suit Under Section (sic) of the UP(sic) and LR Act, 1951 (hereinafter referred to as the Act) claiming to be the sirdar of the land in dispute and alleging that the opposite party had forcibly occupied the land in dispute without any right. The suit was contested and the opposite party claimed to be the bhumidhar of the land in dispute. The suit was decreed by the trial court and the opposite party filed an appeal before the Commissioner, which was allowed and the case was remanded relying upon a ruling of the Board of Revenue to the effect that the Government was a necessary party. Thereupon a Second Appeal was filed by the Petitioner before the Board of Revenue. The Board of Revenue also relying upon its earlier decision, dismissed the appeal by its order dated 23 -1 -1962. The reasoning of the Board of Revenue was that since the Plaintiff was claiming adhivasi or sirdari rights in the land in dispute while the Defendant claimed bhumidhari rights, the, nature of the suit became that of one Under Section 229B of the Act as there were rival claims to the same land and it lost its character as a suit Under Section 209 thereof. Against that order, the Petitioner has come to this Court. The case was heard by a learned single Judge. The decision of the Board of Revenue was not only tried to be supported upon its own ground but it was further contended on behalf of the opposite party that after the decision of the Board of Revenue, Section 209 of the Act had been amended and it was provided that the State Government was a necessary party to all suits under that section. In view of that amendment, the decision of the Board of Revenue was, in any case, correct and there was no reason to interfere with it. The learned single Judge, who heard the contentions, did not agree and in view of the fact that a Division Bench case of this Court (not reported) Sp. A. No. 624 of 1964 Jagdish Pd. v. Board of Revenue (sic) was brought to his notice with which he did not agree, he referred the following two questions to a larger Bench: (i) What is the effect of amendment of Section 209 of the UPZA and LR Act by the amending Act 21 of 1962 on pending appeals? (ii) Is it obligatory on the appellate Court after the above amendment to direct the impleadment of the State Govt, or set aside validly obtained decree without going into the merits of the case? When the matter came up before a Division Bench, the learned Judges wee of the opinion that the decision of this Court in Jagdish Pd.'s case mentioned above required a reconsideration and the decision of the two questions referred, entirely depended on it. The learned Judges, therefore, directed the papers to be laid before the Hon'ble the Chief Justice with a recommendation that "a Full Bench be constituted to hear and decide the reference". Thus we have to answer the two questions referred to by the learned single Judge.
(2.) ON the facts stated above, it is clear that the Board of Revenue had not taken the amendment of the Act into consideration when it passed an order of remand. The basis of the order of the Board of Revenue was that the nature of the suit had changed because of the allegations, in the written statement on behalf of the Defendant. That question, however, is not to be decided by this Full Bench as the correctness of that order has not been referred by the learned single Judge. I, however, am unable to see how the nature of a suit can possibly be altered by any allegation made in defence. This is one of the cardinal principles of pleadings that the nature of the suit is governed by the allegations in the plaint. It is for the Plaintiff to prove his allegations and if he succeeds, he succeeds in the suit. The Defendant can only traverse the allegations in the plant. In a suit for possession against a trespasser, the title of the Plaintiff may be denied and may have to be enquired into incident tally in order to give relief for possession. But that does not convert a suit for possession into one for a declaration. The Defendant in such a suit may also plead his title but the pleading of his title is not really necessary for the suit. The Defendant may merely deny the title of the Plaintiff and if he succeeds in disproving the Plaintiff's case the suit would be dismissed. A Plaintiff's suit cannot be utilised by a Defendant for a declaration of his own title nor can the court give such a declaration although it may incidentally come to a conclusion, while considering the title of the Plaintiff, that instead of the Plaintiff, the Defendant appeared to have a better right. But even that finding is really not necessary for the case. However, that question not being before the Full Bench, I need not elaborate that point further. Although the amendment was not in force when the Board of Revenue decided the case yet it had been contended on behalf of the opposite party that this Court should pronounce judgment on the effect of the amendment of Section 209 of the Act, because even if the order of the Board of Revenue is set aside on its own merit and the case is remanded, the question of the effect of the amendment will crop up before the revenue court where the case will go back for decision. In these circumstances, the learned single Judge considered it proper to refer the two questions mentioned above.
(3.) BEFORE proceeding to consider the effect of the amendment, I would like briefly to state the probable reason which led to the amendment. The legislature has not clarified the purpose behind it. The Board of Revenue, however, as mentioned above, had started taking the view that in every case under Section 209 of the Act where the Defendant, who is alleged to be a trespasser by the Plaintiff claims himself to be a tenant, the nature of the suit changes and the State Government is a necessary party and on that basis, the Board of Revenue started setting aside the decrees passed by the courts below, even in Second Appeals and remanding the cases for a de novo trial. This naturally caused delay in the decision of controversies, waste of time of revenue courts and inconvenience to the parties. To obviate all this, it appears, the legislature intervened and made it compulsory that in every case under Section 209 of the Act, the State Government should be made a party. On principle there appears to be no justification for such an amendment. It is well settled that it is for the Plaintiff who has started the litigation to decide what cause of action is to be put into litigation. If he does not consider that he has any grievance against the Government, he cannot be forced to make an unnecessary party as a Defendant and to run the risk of having to fight against third parties who may raise controversies not germane to the dispute between the Plaintiff and the Defendant with whom the Plaintiff wants to fight. If third parties are added he will be forced to the risk of having to pay unnecessary costs incurred in the litigation by such a Defendant. In the present case, the real dispute was between the Petitioner and the Respondent. The Government was at the best interested in watching the result of the litigation and no relief was claimed by the Plaintiff against the Government. It is difficult to see how the Government can be said to be a necessary party in suits under Section 209 of the Act. As far back as 1880, a Division Bench of this Court in Naraini Kunwar v. Durjan Kunwar and Ors., ILR 2 All 738, held: While the propriety of preventing unnecessary and expensive repetition of litigation and multiplication of suits cannot be questioned, neither as a principle of justice to litigants nor as a convenient rule of practice can an indiscriminate joinder either of cause of action or of parties be tolerated.... It does not appear to me that the Plaintiffs in either case could have joined the other Plaintiffs in their original plaint as Defendants, for they sought no relief against them.... In the multitude of instances it will be a useful test to apply in deciding whether the presence of parties is necessary to enable the Court effectually and completely to adjudicate and settle the questions involved in the suit.;