Wanchoo, C. J. - (1.) THIS is an appeal by Thakur Laxman Singh against the judgment of the District Judge Pali, and has arisen in the following circumstances:
(2.) LAXMAN Singh brought a suit against Jujar Singh in the court of Civil Judge, Sirohi, for possession of certain property and mesne profits. The case of LAXMAN Singh was that the parties were descendants of a common ancestor named Vijai Singh who was jagirdar of Bhatana. Vijai Singh had three sons, one of whom died childless. The remaining sons were Sabal Singh and Surajmal. Sabal Singh succeeded to the jagir, and Surajmal was given two-fifths share of the jagir after an arbitration and compromise in Svt. 1963. Thus the jagirdar had three-fifths of the jagir, and the junior branch had two-fifths. This state of affairs continued till Svt. 1944 when disputes again arose between the jagirdar and members of the junior branch when certain orders were passed by the then Ruler of Sirohi. In 1925 there were again disputes between the parties, and the entire matter was referred, with the permission of His Highness the Maharaja Saheb of Sirohi, to the arbitration of five Panchas, the Maharaja being the Sarpanch. The arbitrators gave an award on the 12th July, 1927, which finally and conclusively determined the rights of the parties. The jagir was partitioned, and separate shares were allotted to the two branches and the plaintiff came in possession of his share which was given in schedule B attached to the plaint. This continued till 1948 when Her Highness the Dowager Maharani Saheba set aside the decision of the 12th July, 1937, by an order passed on the 20th November, 1948, in consequence whereof certain properties, which were in the possession of the plaintiff, were handed over to the defendant. These properties were mentioned in schedule C, and the plaintiff's suit was for possession of these properties. He alleged that the order of Her Highness the Dowager Maharani, dated the 20th of November, 1948, was of no force and void for the following reasons - (1) Her Highness as Raj Mata had no powers whatsoever; (2) The matter was never decided by the Board of Regency and not referred to the other members thereof, (3) The order of the sovereign ruler cannot be set aside or questioned by any authority whatsoever other than a sovereign ruler himself; (4) The order could only be set aside by means of a proper proceeding before a competent court of law, and the Raj Mata Saheba was not a court; (5) That proper procedure and rules of natural justice were not followed by Her Highness the Raj Mata Saheba in setting aside the award. The suit was resisted by the defendant, and as many as 22 issues were framed by the Civil Judge. When the case came for hearing in that court, it was suggested that 12 issues may be decided first as that was a convenient course. The Civil Judge therefore decided these twelve issues. One of these issues was whether the Government of Rajasthan was a necessary party to the suit. There were also a number of issues about whether the order of the Raj Mata Saheba, dated 20th November, 1948, was by a sovereign authority, and therefore could not be questioned in a court of law. The Civil Judge decided that the Government was not a necessary party. He also came to the conclusion that the order, dated 20th November, 1948, could not be questioned in a court of law. He, therefore, dismissed the suit. There was an appeal to the District Judge. He decided only one issue, namely whether the Government was a necessary party, and held that it was a necessary party. He, therefore, ordered that it was necessary that the Government should be made a party for the right and correct decision of the suit, and that the suit be remanded for getting the plaint amended in the light of his observations, and for proceeding with it afresh according to law. The plaintiff has come in appeal to this court, and his contention is that the Government is not a necessary party, and the order of the District Judge remanding the suit should be set aside, and he should be ordered to decide the other issues which were decided by the Civil Judge, and which he left undecided. A preliminary objection was raised that no appeal lies as this case is not covered by the terms of O. 43 rule l (u ). That rule provides for an appeal from an order under R. 23 of O. 41 remanding a case where an appeal would lie from the decree of the appellate court. In this case a second appeal would lie from the decree of the District Judge, and that condition is fulfilled. But the contention on behalf of the respondent is that the order in question is not an order under O. 41, R. 23. O. 41, R. 23 reads as follows: - "where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and further direct what issue or issues shall be tried in the case so remanded. . . . . . " The difficulty in this case arises in this way. The appellate court has certainly reversed the finding of the trial court on the question whether the Government was a necessary party; but the trial court did not dispose of the suit on the basis of its finding on that issue. It had dismissed the suit on its findings on certain other issues which the District Judge has not yet considered and reversed. As such the contention of the respondent that O. 41, R. 23 does not apply in terms is correct. It follows therefore that no appeal lies under O. 43, R. l (u), and the remand must be taken to be under the inherent powers of the court under sec. 151 of the Code of Civil Procedure. Learned counsel for the appellant prayed that his appeal might be treated as a revision, and we have allowed this and heard arguments on the footing that this is a revision. The first question, that arises for decision, is whether the Rajas-than Government is a necessary party in this suit or not. The District Judge held that the Government was a necessary party for these reasons - (1) The plaintiff admitted that the order of the 20th November, 1948, was carried out at the point of the bayonet, and possession of the property was handed over to the defendant by the Revenue officers of the former Sirohi State. (2) The order in question shows that it had been made by Her Highness Shri Raj Mata Saheba when she was President of the Board of Regency appointed by the Government: of India' and had been sent to the authorities concerned for immediate compliance. (3) The Raj Mata Saheba had no other functional capacity under the Constitution of the State except as President of Regency Board and sovereign authority. (4) There were no set of rules and procedure for the conduct of the proceedings of the Board of Regency. The District Judge, therefore, held that the suit questioned an act of the then Government: of the Sirohi State, and therefore Government was a necessary party to the suit. He relied on Gaibandha Loan Office Ltd. vs. Mst. Saiyaaunnissa Khatun (1) (A. I. R. 1943 Cal. 114 at page 117. ). We shall consider this authority on which the District Judge has relied at once. There was a suit under sec. 36 Bengal Public Demands Recovery Act (No. 3 of 1913 ). That Act provides a procedure for recovery of land revenue in case of non-payment. Under that Act it seems that certificate sales are held and the property is sold for non-payment of revenue. The person, at whose instance the sale is held, is called a certificate holder. Sec. 34 provides for a suit for cancellation of the certificate before the certificate sale is held, while sec. 36 is for a suit after the certificate sale has taken place. It was held in this case that the Secretary of State being a certificate holder, at whose instance the sale was held, was a necessary party to the suit. A certificate holder under that Act is in the position of a decree-holder, and obviously if a suit is brought by a judgment-debtor to set aside a sale, both the decree-holder and the auction purchaser are necessary parties to it. On that analogy it was held that the Secretary of State who was the certificate holder for the certificate sale desired to be set aside under sec. 36, was a necessary party. This case has, in our opinion, no application to the facts of the case before us. Learned counsel for the respondent tried to rely on a statement in an affidavit filed in connection with the appointment of a receiver, in which it was said that the allegation of the plaintiff that the defendant was not keeping accounts was incorrect, as his whole Jagir, including the property in dispute, was Bhagbatai and half the share had to be paid to the State, and as such he was bound to keep accounts. It is urged, therefore, that as half the income from the Jagir goes to the State, it was necessary to make the State of Rajasthan a party to the suit. It may be pointed out that this was not the reason urged before the District Judge in support of the plea that the State was a necessary party. Learned counsel for the respondent admits that the property in dispute was partitioned, and a cash land revenue fixed on the plaintiff's share long ago. It is not clear to us how even if part of plaintiff's property goes back to the Jagir, it loses its character of cash paying Jagir and becomes Bhagbatai Jagir. In any case, this point was not taken either in the first court or in the District Judge's court, and we are not prepared to hold that the State of Rajasthan is a necessary party because it is entitled to one-half share of the income of the property in dispute through Bhagbatai system of Jagir. The only other ground, which is urged in support of the contention that the State is a necessary party, is that the suit challenges an act of State, and therefore the State must be made a party. In this connection reliance was placed on Nawab Umjad Ally Khan vs. Mohumdee Begum (1) (Sutherland Weekly Reporter, P. C. , p. 25.), in which it was held that if it was desired to question an act of State directly or indirectly the contention, must be raised on a suit duly constituted, to which the Government must be made a party. The facts of that case however show that the State was held to be a necessary party as by an act of State the property had come to vest in the State. The case related to lands forfeited by Lord Canning's proclamation after the mutiny of 1857. Some of the forfeited lands were granted to the defendant. Thereupon a suit was brought by the daughter of the Nawab whose estates were forfeited, claiming the property as hers under the Mohammedan Law. Their Lordships observed that the forfeited estates were not an asset at the time of the Nawab's death, and could only be treated as such when the Government title was displaced. This could only be done on a suit duly constituted, to which the Government must be made a party. It is obvious from this that Government was a necessary party because it had become the owner of the estate which was later re-granted to another person. In the case before us all that happened was that the disputed property was ordered to be transferred from the plaintiff to the defendant, and the Government at no time claimed any title in itself. It is not necessary that the State should be made a party in every suit in which an order of this nature is challenged. It may be useful to state that the use of the term 'act of State' to orders of the nature challenged in this suit is a misnomer. Underhill in his treatise on Law of Tors (1946 Edition) has explained that an act of State is an act injurious to the person or to the property of some person abroad who is not at the time of that act a subject of His Majesty; which act is done by any representative of His Majesty's authority, civil or military, and is either previously sanctioned or subsequently ratified by His Majesty, and no action can be brought for damage resulting from act of State, but as between the Sovereign and his subjects or between the Sovereign and foreigners resident in his Dominions under the protection of Law there can be no such thing as an act of State. Another case, that was relied on behalf of the respondent is Maulu and others vs. Ghanaya and others (1) (A I R. 1934 Lah. 366. ). In that case it was held that "a suit to obtain a declaration that the plaintiffs possess certain rights in the shamilat can be maintained only if all the proprietors have been impleaded as parties". This case has obviously no application to the facts of the case before us, because the State is not being impleaded on the ground that it has any direct interest in the property which has been transferred from the defendant to the plaintiff. The next case,to which reference is made, is G. Krishnaswami Naidu vs. Municipal Council, Bellary (2) (A. I. R. 1937 Mad. 641. ). That case related to Nazul land and was filed against the Municipal Council of Bellary, and the State was not made a party. It was held that as the land belonged to the State and had only been given to the Municipality for municipal purposes, a suit for a declaration that the plaintiff was owner of the land required that the State should be made a party. Here again the State was a necessary party because it was the owner of the land and this case also does not apply to the facts before us.
(3.) THE mere fact that some action of the State is being impugned in a suit is not enough to make the State a necessary party, though in certain circumstances it may be proper to implead the State. In Vaithilinga Pandara Sannidhi Audhina Karthar Tiruvaduthurali Adhinam vs. Sada-siva Iyer and others (3) (A. I. R. 1926 Mad. 836.), it was held that the Secretary of State was not a proper or necessary party to every suit in which any question was raised with regard to the legality of any statute. THE same view was held in Sri Mahant Prayaga Doss Jee Varu vs. Board of Commissioners for Hindu Religious Endowments, Madras (4) (A. I. R. 1926 Mad. 927. ). In Dolatsinghji Jaswantsinghji vs. Khachar Mansur Rukhad and others (5) (A. I. R. 1936 P. C. 150.), the Ruler of Limbdi State in Kathiawar had come to an agreement with the Government in connection with entry of certain Girasias as Mulgametis, and further that Mulgametis shall be considered as Talukdars for purposes of the Gujrat Talukdars Act. Later, the Ruler brought a suit that he was entitled to be entered as Talukdar under the Gujrat Talukdars Act, and the agreement between the Ruler and the Government was put up as defence, and it seems to have been contended that Government was a necessary party. THEir Lordships held that Government was neither a necessary nor a proper party in the circumstances of that case, as the question to be decided was independent of the validity or invalidity of the agreement. In Birendra Nath Raha vs. Mir Mahabubar Rahaman and others (6) (A. I R. 1947 Cal. 332.), it was held that in a suit for a declaration that a revenue sale held under the [provisions of Bengal Land Revenue Sales Act of 1859 and 1868 was without jurisdiction, the Secretary of State was not a necessary party. In Doraiswami Goundan vs. Subramania Mudaliar (1) (A. I. R. 1950 Mad. 659.), it was held that in a suit between private parties where the issues were whether sec. 44-B, Madras Hindu Religious Endowments Act was ultra vires, and whether the orders passed by the Revenue Officers were void and without jurisdiction, and no relief was asked against the Government, the Government was not a necessary party to the suit though it was a proper party. In the present case also no relief has been asked against the Government, and it seems to us therefore that the Government is not a necessary party. The District Judge was, therefore, wrong in holding that the Government was a necessary party, and remanding the suit on that ground. It is then urged on behalf of the respondents that even if the District Judge has gone wrong, he had jurisdiction to decide the matter, and it cannot be said that he acted with material irregularity in the exercise of his jurisdiction. In this connection reference need only be made to Dewan Bahadur Seth Umed Mal and others vs. Chandmal (2) (A. I. R. 1926 P. C. 142. ). In that case, the plaintiffs claimed the land in dispute under a mortgage from one M, and the main question was whether M had included the particular land in his mortgage, but the court disposed of the suit without impleading M. It was held that it amounted to a material irregularity in the exercise of jurisdiction to decide the case in the absence of M, and a revision lay. This case is therefore authority for the view that not adding a party to a suit, who is a necessary party, amounts to an irregular exercise of jurisdiction. It seems to us that the converse, namely, forcing a party to add another person as a party when that other party is not a necessary party would also be acting with material irregularity in the exercise of jurisdiction. Here the District Judge is forcing the plaintiff to implead the Government as a party when, as a matter of fact, Government is not a necessary party, and when the District Judge so forces the plaintiff, he must be held to be acting with material irregularity in the exercise of his jurisdiction. We are, therefore, of opinion that a revision lies. We, therefore, allow the revision, and send the case back to the District Judge for disposal of the remaining portion of the appeal according to law. . ;