- (1.) THIS second appeal has been filed against the order of R. A. A. Udaipur dated 31-5-68 whereby the learned R. A. A. accepted the appeal of the respondents and remanded the case to the trial court The trial court dismissed the suit of the respondents u/s 88 of the Rajasthan Tenancy Act.
(2.) WE have heard the counsel for the appellant, the respondents being absent despite notice and hence ex parte proceedings were taken against them. The learned counsel for the appellant has attacked the impugned order of the R. A. A. on the ground that the respondent Sardarsingh while filing the appeal before the R. A. A. did not implead Naharsingh who was plaintiff No, 2 in the suit filed before the trial court and as such the appeal suffered from non-joinder of necessary parties within the meaning of O, 41 R. 20 of the C P. G. and the effect of non-joinder of the necessary party was fatal to the appeal. He argued that the learned R. A. A. did not examine this legal flaw and was not justified in remanding the case. From a perusal of the suit filed before the trial court we find that both Sardar Singh and Naharsingh are the plaintiffs but before the R. A. A. the appeal has been filed by Sardarsingh only. In the memo of appeal before the R. A. A, the appellant Sardarsingh did not give any reason why Naharsingh was left over. At the time of arguments before the R. A. A. also there was no prayer on behalf of the respondent Sardarsingh that due to pure error and oversight of his pleader, the name of Naharsingh as a party appellant being impleaded as a was not impleaded and that he should be allowed to be added Nor there is any application on record from Naharsingh for in appellant. In the suit u/s 88 before the trial court, Naharsingh was also a plaintiff and in the appeal also he was a necessary party. Necessary and proper party has been defined in 0. 1,r. 10 (Note 11 of the C. P. C.) Necessary party has been define d as persons who ought to have been joined as parties. Nahar Singh, was, there fore, a necessary party and the effect of the nonjoinder on the appeal is fatal to the; appeal because in such cases there is no proper appeal before the Court at all. A person who is not joined as a party to an appeal is not bound by the decree passed in the appeal. In view of this there is an apprehension of emerging two inconsistent decrees, i. e. one passed by the trial court in which both the plaintiffs were party and the other by the appellate court in which Sardarsingh was only the appellant. Such state of affairs cannot be allowed to exist. We, therefore, hold that the appeal before the learned R. A. A. filed by Sardarsingh was defective. The learned R. A. A. has, therefore, committed an illegality in overlooking this legal flaw and remanding the case to the trial court after hearing the arguments on merit. In the result, we accept this appeal and set aside the impugned order of the R. A. A. Udaipur which means the suit of the respondents stands dismissed. While going through the record it was noticed by us that Khasra numbers 50! & 502 were in the muafi of the appellants and khasra No. 503 was of the State and it has been alleged by the appellants that it was occupied by Jawaharlal Amrit Lal & Ratanial since long and was in their possession. But from the copies of Girdawaries and reports of Patwari (dated 26-8-64) and Tehsildar (dated 7-2 66) and Rent Deed dated 1-9-51 it appears that khasra Nos. 502 & 503 were let out by the appellants to the respondents on a monthly rent of Rs. 40/- for non-agricultural purposes and K. No. 501 happened to be occupied by the respondents for similar use and thus at this time the three khasras are in the possession of the respondents since long. In St. 2011 (1954) muafis were resumed by the Govt. It seems the appellants did not get these lands declared as their khudkasht or private property and as such they should vest in the State and K. No. 503 was already Khalsa. This position will have to be enquired into. Further the respondents are using these agricultural lands for non-agricultural purposes and as these are now Govt. property and also fall in the abadi, the Tehsildar should deal with these three khasra number under sub-sec. (4) of Sec. 904 of the Rajasthan Land Revenue Act. All this enquiry will now onwards be done by the Tehsildar, to whom a copy of the judgment may be sent. .;