1. The following question has been referred by our brother Broome to a larger Bench :
'Whether in a suit under Section 59 of the U. P. Tenancy Act and the appeal arising out of such a suit, the Zamindar was a necessary party even after the abolition of the Zamindari?'
2. The question arises in a suit instituted under Sections 59, 180 and 183 of the U. P. Tenancy Act, 1939, by the petitioners against Azimullah lumberdar of the mahal in which the land in dispute is situated and all the co-sharers of the mahal, including Sadiq Husain and Salim Ullah, alleging that Salim Ullah, who is a son of Azim Ullah, had no cultivatory right at all in the land in dispute and his name was fictitiously recorded in the village papers and that they themselves were the hereditary tenants. The suit was contested only by Salim Ullah; the lumberdar and other co-sharers did not contest it. While it was pending the U. P. Tenancy Act was repealed and the U. P. Zamin-dari Abolition and Land Reforms Act came into force with effect from 1-7-1952. The land in dispute is a cultivated land, still the Gaon Sabha ot the village in which it is situated was impleaded as one more defendant as required by Rule 7 of the Rules framed under the Zamindari Abolition and Land Reforms Act. The suit was dismissed by the trial Court on 10-3-1954. Sadiq Husain died on 15-3-1954 and the petitioners filed an appeal im-pleading as respondents all the defendants to the suit and not legal representatives of Sadiq Husain. On 21-2-1955 the appellate Court held that the appeal had stood abated on account of the non-impleading of legal representatives of Sadiq Husain. The petitioners appealed from the said declaration of the appellate Court and on 22-10-1956 the Board of Revenue dismissed the appeal. Thereupon the petitioners filed a petition for certiorari to quash the orders of the appellate Court and the Board of Revenue on the ground that they refused to exercise the jurisdiction vested in them, to hear the appeal on its merits and that they committed a manifest error of law in declaring that the appeal stood abated. They also seek mandamus requiring the appellate Court and/or the Board of Revenue to hear the appeal on merits.
3. In respect of every suit there are certain persons who are essential to be impleaded as defendants; if they are not, no relief can be granted against them or in the suit. These persons fall in two classes, (1) of those against whom the relief is sought, and (2) those whom the law requires to be impleaded as defendants, even though no relief is sought against them. Under Order 1, Rule 3, C. P. C. all persons against whom any right to relief is alleged to exist should be impleaded as defendants. No relief can be granted against a person who has not been impleaded as a defednant. If relief can be claimed against two persons, but only one is impleaded as a defendant relief can be granted against him only; not only can no relief be granted against the other but also the fact that the other has not been impleaded will not cause relief to be refused against the one impleaded; see Rule 9 of Order I. There are various provisions in statutes requiring certain persons to be impleaded as defendants, such as Order XXXIV, Rule 1, C. P. C, Sections 49. 59, 183 and 246 of the U. P. Tenancy Act. If these persons are not impleaded as defendants the suit will fail. Order I, Rule 9 is subject to any special or local law, or any special form of procedure prescribed by any other law, vide Section 4, C. P. C. Consequently if any law prescribes that 3 certain person must be impleaded as a defendant, even though no relief is sought against him, the failure to implead him will be fatal to the suit, notwithstanding the provision in Order I, R. 9. Persons who are not essential to be impleaded as defendants to a suit again fall in two classes, (1) of those who are in some way interested in, or connected with, the relief sought against others and (2) of others, who are not at all interested in, or connected with, it. Persons of the latter class must not be impleaded as defendants at all, but persons of the former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution, or to avoid future litigation and the relief will not be refused on the ground that they have not been impleaded
4. Section 59 of the U. P. Tenancy Act provided for a suit for a declaration of title to be instituted against the land-holder and any person claiming through the land-holder, and Sections 180 and 183 provided for suits by a person against persons unlawfully in occupation. Though the petitioners' suit was for the reliefs grantable under Sections 50, 180 and 183, the question referred to us is only in respect of the relief grantable under Section 59. 'Land-holder', according to the definition in the U. P. Tenancy Act, was a person to whom rent was payable. The land in dispute is admittedly situated in an undivided mahal and rents by tenants of land situated in it were payable to the lumberdar of the mahal. By a special agreement the co-sharers of the mahal could realise their shares in the rents from the tenants of the mahal, but no such special agreement has been pleaded in the case and it is admitted that the rents were payable to the lumberdar and not to the co-sharers. Therefore, the lumberdar was the sole land-holder and a suit under Section 59 was to be brought against him and no body else, such as the co-sharers of the mahal, was required to be impleaded as defendant. If there was a person other than the landholder who denied the plaintiff's claim and himself claimed to be a tenant he was an essential party to be impleaded; even though strictly speaking no relief could be sought against him, the matter being only between the plaintiff and his land-holder, Section 59(2) made him an essential party. Thus there were only two essential parties to a suit under Section 59, they being the land-holder and a person claiming to hold through him, if any, and other persons such as the co-sharers or landlords of the land in dispute were not essential parties. Sadiq Husain was thus not an essential party but was impleaded as a proper party. A cosharer of the mahal, who is a landlord of the land situated in it, may be said to be interested in, or connected with, the question raised by the plaintiff in the suit. Sadiq Husain was not interested in, or connected with, it in any other capacity; he never claimed any right other than a landlord's right in the land in dispute.
5. When during the pendency of the suit the U. P. Tenancy Act was repealed and the Zamindari Abolition and Land Reforms Act came into force all rights of the lumberdar and the co-sharers were extinguished and the land of the mahal vested free from all encumbrances in the State. All tenancy rights were also extinguished, because all land vested in the State free from all encumbrances. Rights were conferred by the Zamindari Abolition and Land Reforms Act upon persons holding tenancy right under the U. P. Tenancy Act, but they were new rights and the rights acquired under the U. P. Tenancy Act were extinguished. This was the effect since 1-7-1952. Since the lumberdar and the co-sharers lost all their rights, they became wholly unnecessary parties in the suit. Whatever relief the petitioners were entitled to could now be claimed by them against the State. If they acquired new rights under the U. P. Zamindari Abolition and Land Reforms Act, they could claim them, but could claim them, only against the State.
6. When the Zamindari Abolition Land Reforms Act came into force the State Government made rules in exercise of the power conferred upon them and they included Rule 7, laying down that in every suit under the U. P. Tenancy Act pending on the date of vesting in which an intermediary was a defendant, the Court could, where it considered it necessary in order to enable it effectually and completely to adjudicate upon and settle all questions involved in it, order the gaon sabha to be joined as a party and it was on account of this rule that the goan sabha was impleaded as a defendant in the trial Court. It was not the successor-in-interest or successor-in-title of the lumberdar and the cosharers who were the defendants, because their successor-in-interest or title was the State. The gaon sabha was to be impleaded by virtue of Rule 7, not as a successor-in-interest of the intermediary defendant but in order to enable the Court effectually and completely to adjudicate upon and settle all questions arising in the suit. If it was necessary to implead the intermediary's successor-in-interest, the State should have been impleaded and not the gaon sabha and the gaon sabha could have been impleaded by virtue of Rule 7 even though the State had been impleaded as the successor-in-interest. Rule 110-B, providing that the State Government shall be made a party in a suit instituted under Section 59, U. P. Tenancy Act, with regard to a cause of action accruing before 1-7-1952, against a gaon sabha did not exist prior to 9-4-1955 and is, therefore, not relevant in the present case. That rule did not have retrospective effect and did not govern a suit which had already been disposed of.
The suit instituted by the petitioners, in which the gaon sabha was impleaded as an additional defendant subsequently by virtue of Rule 7, could not be said to be a suit 'instituted against the gaon sabha'. No relief could be, or was, claimed against it. As the land was cultivated, it was not interested in it at all and really its being made a party was not required at all for effectual and complete determination of the points in controversy in the suit. Since it was unnecessarily impleaded as a defendant, the suit could not be said to have been instituted against it, Rule 110-B applies to a suit instituted after it was made on 9-4-1955. It has not been shown to us that no suit under Section 59 in respect of a cause of action accruing before 1-7-1952 could possibly be instituted after 9-4-1955 and, therefore, it cannot be contended that the rule was intended to apply to suits pending on 9-4-1955.
7. Order 22, C. P. C. deals with 'death, marriage and insolvency of the parties'. One of its provisions is that the death of a defendant shall not cause the suit to abate if the right to sue survives; this provision obviously refers to the death of a defendant during the pendency of a suit and not 'fter its termination. Even though an appeal may be said to be a continuation of the suit, the death of a defendant taking place after the termination of the suit and before the institution of an appeal cannot be said, af the moment of the institution of: the appeal, to be the death during the pendency of the suit. At the moment of the institution of the appeal there is no suit pending; it is only after the appeal is instituted that a suit may be said to be pending, but the question who is to be impleaded in place of the deceased defendants has to be determined before the appeal is instituted and Order 22 Rule 1, will not supply the answer. When there are more defendants than one and one of them dies and the right to sue survives against the surviving defendants alone the suit will proceed against them and it is not at all necessary to bring the deceased defendant's legal representative on the record; see Rule 2. If any provision of Order 22 could apply and Sadiq Husain could be said to have died during the pendency of a suit, it is this provision_ that would apply but the result would still be that the death made no difference, the suit could proceed in spite of his death and without his legal representative being brought on the record and it could not abate. It is only when the right to sue does not survive against the surviving defendants alone that the legal representative of the deceased defendant has to be made a party and if no application to make him a party is made within the prescribed time, the suit would abate as against him as provided in Rule 4. As Sadiq Husain was not an essential party it could not be said that the right to sue did not survive against the surviving defendants and that the suit would abate if no application for bringing on the record his legal representative was made. Actually the matter is not governed by Order 22 and there is no other rule of law which caused the suit to abate.
8. Rule 10 of Order 22 deals with the procedure to be followed in cases of assignment or devolution of an interest during the pendency of a suit; it way be continued against the person upon whom the interest has come or devolved. If the extinction of the rights of lamberdars and other intermediaries by the Zamindari Abolition and Land Reforms Act and the vesting of those right upon the State can be said to be devolution of interest, Rule 10 applied and the suit could be continued with effect from 1-7-1952 against the State and there would arise no question whatsoever of the effect of the death of Sadiq Husain subsequently. But it may be said that extinction of the rights of the intermediaries and vesting them in the State was not by devolution but by the operation of a new law and, therefore, not governed by Rule 10. If that is the correct view, there was no law governing extinction of rights and their vesting in others by the operation of a new law and it may be said that the defendants continued to be defendants after 1-7-1952 and the death of any of them during the pendency of the suit was governed by Order 22, The ultimate result would be the same viz., that the suit was to continue against the surviving defendants and was not to abate at all.
9. It is settled by authorities that the death of a pro forma defendant or an unnecessary party or a party who has lost interest in the subject matter of the suit does not cause abatement. In Venkatachalla Reddiar v. Collector of Trichinopoly, 1LR 38 Mad 1064: (AIR 1914 Mad 708) the death of a trustee who had alienated a trust property, during the pendency of a suit brought under Section 92 against him and the alienee, was held not to bring about abatement of the suit. In Jai Kishen Das v. Arya Priti Nidhi Sabha, AIR 1921 Lab 357 (2), Subashini v. Habu Ghosh, AIR 1926 Cal 247 and Bishambar Das v. Kanshi Parshad, AIR 1932, Lah 641, deaths of unnecessary parties were held not to cause abatement; the last was a case of partition between two branches of a family, which were represented by their heads and also other co-parceners and the latter were held to be unnecessary parties. The position of co-sharers in a suit brought under Section 59, U. P. Tenancy Act, against them and the lumberdar is exactly the same as that of the co-parceners in the last case.
In Gulsher Khan v. Mashuq Ali Khan, 22 Ind Cas 929: (AIR 1914 All 113) it was held by a Bench of this Court that it is not necessary to bring on the record a legal representative of the deceased party who was not interested in the suit. Seth, J. made it clear in Mt. Shyamrathi Kunwar v. Dharam Deo Singh : AIR1951All428 that Order 22, Rule 4, does not apply where the right to sue Survives to a surviving' defendant and held that there is no abatement for failure to bring on the record a deceased proforma defendant's legal representative and that a suit abates only against a deceased defendant and not against the other defendants.
Prokash Chandra Das v. Shama Charan Dull : AIR1925Cal467 Was a case in which there was during the pendency of a suit an assignment by the plaintiff of his interest followed by his death and the suit was held not to abate on the ground that by the assignment the plaintiff became an unnecessary party having lost all interest in the suit. The assignment by a plaintiff removed his subsequent death out of the scope of Order 22 altogether, and in the same way the coming into effect of the Zamindari Abolition and Land Reforms Act removed the death of one of the intermediaries out of the scope of Order 22 and there was, therefore, no abatement. The mere continuation on the record of the name of a defendant, who had assigned his interest in the subject-matter of the suit to another, does not clothe him with any right in the suit; see Sachidanand Vidya Shankar v. Narasimha Bharati . The Judicial Committee in that case held that he had no right to intervene in the contest between the plaintiff and the assignee or to object to the admission by the assignee of the plaintiff's claim to the property and allowed the suit to be compromised. It follows that there arises no abatement of a suit pn the death of a defendant who has assigned his interest to another who has been brought on the record. Great reliance was placed by Sri S. N. Kacker upon the U. P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952, made by the State Government in exercise of the power conferred by Section 342 of the Zamindari Abolition and Land Reforms Act. Clause (2) of it is to the effect that except as expressly provided in the U. P. Zamindari Abolition and Land Reforms Act or in the rules framed thereunder every suit or appeal in respect of any right or liability acquired or incurred under or in pursuance of the U. P. Tenancy Act, pending on 30-6-1952 in a revenue Court, shall be continued there and shall be heard, inquired into and decided under, and in accordance with, the provisions of the U. P. Tenancy Act. This provision shows that it is a misnomer to cap the Order a (Removal of Difficulties) Order; it is in fact a (Creation of Difficulties) Order. The order does not suspend the operation of the Zamindari Abolition and Land Reforms Act; it has taken effect and intermediaries' rights have been extingu-ished, their estates have vested in the State Government, the rights of tenants have been extinguished and they have acquired new rights. It is not easy to understand how a suit instituted under the U. P. Tenancy Act and pending on 30-6-1952 can with effect from the next day be heard and disposed of in accordance with the provisions of the Act which may be quite inconsistent with the provisions oi the Zamindari Abolition and Land Reforms Act. For instance if in a suit under Section 59 a plaintiff claimed certain rights acquired by him under the U. P. Tenancy Act, it is improbable for him to claim those very rights after 1-7-1952 because they are extinguished. Under the U. P. Tenancy Act he had acquired rights from the land-holder but with effect from 1-7-1952 the land-holder has ceased to exist and is unable to defend the suit and the State has come to his place and it is not easy to see how the suit can go on against the land-holder. It could not have been the intention that the suit will go on being defended by the landholder even though he has lost all interest or that the plaintiff will get a declaration not in respect of a right existing at the time of the declaration but in respect of a right existing up to 30-6-1962 and extinguished: with effect from 1-7-1952. It would be thoroughly futile if the suit was allowed to be defended by a person who was not interested in defending it and was to result in a declaration of a right which existed previously but was no longer existing. A declaration that the plaintiff had a certain right up to 30-6-1952 would have been meaningless and a simple declaratory suit would fail on that very ground because this jurisdiction is not exercised when the declaration would be of no use. Even if it is said that 'in accordance with the provisions of ... the U. P. Tenancy Act' in the Order meant the provisions laying down procedure for suits and not provisions affecting rights, it would not help the opposite parties at all because it would not mean that the suit abated. It would not have abated even if the U. F. Tenancy Act had continued in force and the Zamindari Abolition and Land Reforms Act had not been enacted, because Sadiq Husain was a wholly unnecessary party.
10. In Risat v. Government of U. P. Lucknow : AIR1956All704 Mootham, C. J. and Agarwala, J. held that with effect from, 1-7-1952 land-holders ceased to be land-holders andthe State became the landholder in their place, that in a suit under Section 49 of the U. P. Tenancy Act it was not necessary to bring on the record the legal representative of the defendant landholder who died after 1-7-1952 and that if the Court thought it necessary it could implead the Gaon Sabha as a defendant. In Civil Miscellaneous Writ No. 1220 of 1955 (Horilal v. Board of Revenue) decided on 19-9-1956 Mootham, C. J. and Chaturvedi, J. following the above case held that when a lambardar against whom a suit under Section 59, U. P. Tenancy Act, was filed died after 1-7-1952 it was not necessary to implead his legal representative as defendant because he had no longer any right left in the land in dispute. They held that the lambardar himself became an unnecessary party after 1-7-1952. One of us and Kailash Prasad, J. in Rameshvrar v. Board of Revenue, (Civil Misc. Writ No. 253 of 1956), decided on 22-3-1961, and Broome, J. in Randhir Singh v. Board of Revenue (Civil Misc. Writ No. 2755 of 1956), decided on 8-1-1962, took the same view. A contrary view has, however, been taken by Bhargava and Bhagwan Das Gupta, JJ. in Nagma Singh v. Board of Revenue (Civil Misc. Writ No. 1339 of 1961), decided on 5-9-1961; they observed that a suit under Section 59 of the U. P. Tenancy Act would abate if the landholder died after the coming into force of the Zamindari Abolition and Land Reforms Act and no application was made to bring on record his legal representative. This decision was given after only a summary hearing of the writ petition. Not only have the learned Judges not referred to the earlier decisions of the Court--presumably they were not brought to their notice -- but also they have not referred to the various provisions of the Zamindari Abolition and Land Reforms Act and of the Civil Procedure Code. I regret my inability to accept the reasons given by them in support of their view, which seems to be wrong. They made a distinction between 'principal' defendants and other defendants -- a distinction not borne out by any authority or by reason. It is not known who is a principal defendant and who is not. Order XXII considers not whether a defendant is principal defendant or not, but whether the right to sue survives against the remaining defendants. Secondly, the position of land-holder who defends a suit under Section 59 of the U. P. Tenancy Act is not at all different from that of a land-holder defending a suit under Section 49, U. P. Tenancy Act. The landholder is interested in a suit under Section 59 as also the person who claims rival rights against the plaintiff, and in a suit under Section 49 also the landholder is interested, even though the co-tenants are also interested. There is a difference in the nature of the interests possessed by the landholder and the co-tenants, but both are equally necessary parties. The landholder is by statute required to be made a party so that he may be bound by the decree passed in the suit and must be given an opportunity to show cause against the proposed division. He is vitally interested in the division, because it would bind him. Therefore, it cannot be said that the land-holder, who is made a defendant to a suit under Section 49, is only a desirable party; he is as necessary a party as the co-tenants. He is not less desirable than the landholder who is to be made a party in a suit under Section 59 in which the controversy may be between the plaintiff and another person who claims rival rights against him, the landholder being a mere spectator. The learned Judges have not explained how there is going to be a landholder after the coming into force of the Zamindari Abolition and Land Reforms Act. Section 59 may require a landholder to be made a defendant in the suit, but a landholder can be a defendant only if there exists one. If the institution of landholders itself is abolished there cannot be any landholder. The landholder himself has ceased to be a landholder prior to his death and his legal representative, whosoever he may be, cannot be a landholder. The Court may be required by the (Removal of Difficulties) Order to see that a landholder continues to be a defendant to a suit, but it has not guaranteed the continued existence of a landholder and cannot require the Court to do something that is impossible.
11. My answer to the question is that after 1-7-1952 the Zamindar, whether he was the landholder or not, was not an essential, necessary or even proper party. The case may be laid before our brother Broome with this answer.
12. I have read the judgment prepared by the learned Chief Justice.
13. Sadiq Husain's interest in the land became vested in the State under Section 6 of Act No. I of 1951. It appears that after 1-7-1952 he had no interest in the land. Since he had no interest in the property after 1-7-1952, neither he nor his legal representative was a necessary party in the suit or the appeal thereafter. There was before us some discussion as to whether Sadiq Husain's interest should be represented in the litigation by the State of Uttar Pradesh or by the Gaon Sabha concerned. That point is not covered by the question referred to us. I, therefore, express no opinion on the question whether Sadiq Husain's interest in the property should now be represented by the State of Uttar Pradesh or by the Gaon Sabha.
14. I also reserve my opinion on the question whether the Zamindar is a proper party (though not a necessary party) in cases of this kind. It will be sufficient to answer the question referred to us with reference to the facts of this case.
15. My answer to the question referred to the Full Bench is as follows :
'In the circumstances of the present case, Sadiq Husain or his legal representative was not a necessary party in the suit or in the appeal after the abolition of Zamindari.'
S.D. Singh, J.
16. I agree that after 1st July, 1952, the Zamin-dars, who were the 'landholders' under the U. P. Tenancy Act, 1939, were not necessary or even proper parties to a suit covered by Section 59 or Section 183 of the aforesaid Act.
17. Clause (2) of the U. P. Land Tenures (legal proceedings) (removal of difficulties) Order, 1952, does provide that every suit, appeal or legal proceedings in respect of any right, privilege, obligation or liability acquired, accrued or incurred under or in pursuance of the U. P. Tenancy Act, 1939, pending on 30th June, 1962, in any Revenue or Civil Court shall be heard, inquired into and decided under and in accordance with, the provisions of the U. P. Tenancy Act. The provisions of the U. P. Tenancy Act would, thus, apply in the determination of such suits or appeals, and a 'landholder' would be a necessary party to a suit either under Section 59 or Section 183 of the U. P. Tenancy Act, 1939. But the rights of those Zamin-dars or lambardars, who were 'land-holders' prior to 1st July, 1952, vested in the State with effect from that date. The original Zamindars or lambardars, who for purposes of Sections 59 or 183 aforesaid, were 'land-holders' prior to 1st July, 1952, ceased to be 'land-holders' with the abolition of Zamindari in this State; and if, therefore, a 'land-holder' has to be a party to any such suit or appeal after 1st July, 1952, it could be only the State and not the original land-holders.
18. We are not called upon to decide in this reference who would be the successor-in-title to the original 'land-holders' and whether it was necessary for the plaintiff to implead the State as a defendant in the suit or as a respondent in the appeal. The interests of the State in respect of the management of 'land' are, under the Zamindari Abolition and Land Reforms Act and the rules framed thereunder, looked after, in several respects, by Gaon Sabhas. Rule 7 of the Zamindari Abolition and Land Reforms Rules even provides that in all such suits the Gaon Sabha shall be added as a party. The intention behind this rule might be that the Gaon Sabha would look after the interest of the State in the particular litigation. Rule 110-B which requires the State Government being made a party to any such suit was added in April, 1955, and would not, therefore, be applicable to this litigation as the first appeal was held by the Additional Commissioner to have abated in February, 1955. If a suit or appeal to which a 'land-holder' was a party, was pending on 1st July, 1952, and was being contested by such 'landholder', the contest may be taken over by the State or by the Gaon Sabha, on its behalf. But the Zamindars or lambardars, who were landholders prior to 1st July, 1952, would have no right, title or interest to continue to contest the suit or appeal after the aforesaid date. If any such Zamindar was a party to a pending litigation but died during the pendency of the same, and his legal representatives were not brought on record, the omission will have no effect upon the right of the plaintiff to continue the suit, provided the Gaon Sabha was made a party to the litigation under Rule 7 of the Zamindari Abolition and Land Reforms Rules.
19. I agree, therefore, that the answer to the question referred to the Full Bench may be given in the form suggested by the Hon'ble the Chief Justice.
20. BY THE COURT: The answer to the question is that after 1-7-1952 the Zamindar, whether he was the land-holder or not, was not an essential, necessary or even proper party.
21. The case may be laid before Broome J. with this answer.