D. C. SRIVASTAVA, J.

( 1 ) IN this Second Appeal the following substantial question of law was formulated : whether the Appeal in District Court was maintainable at the instance of a third party ?

( 2 ) THE brief facts are that the present appellants of this Second Appeal were respondent Nos. 1 and 2 in the First Appeal. The First Appeal was filed by Rajgor ganpatram Vallabhram, a third party who was not a party in the trial Court.

( 3 ) THE plaintiffs filed a suit for declaration that they are the owners of 1 Acre - 30 Gunthas of land and that the Government or the Gram Panchayat is not its owner. Further declaration was sought that Mamlatdar, holding inquiry under Sec. 37 of the Bombay Land Revenue Code has no jurisdiction to go ahead with the inquiry. Another relief was that the construction allegedly made by the Panchayat or the government over the disputed land be demolished and the last relief was in the nature of permanent injunction restraining the defendant from interfering with the possession of the plaintiffs over the land in dispute.

( 4 ) THE trial Court decreed the suit and granted declaration that the plaintiffs are the owners of disputed land at Sr. No. 1084 admeasuring 1 Acre - 30 Gunthas. The decree for demolition was also granted so also permanent injunction.

( 5 ) NO Appeal was preferred by the defendants in the case. The First Appeal on the other hand was preferred by Rajgor Ganpatram who was not the defendant before the trial Court. He challenged the judgment and decree of the trial Court on the ground that he was vitally interested and affected with the judgment and decree of the trial Court. He sought leave of the appellate Court to prefer the Appeal and the appellate Court granted permission with its reasoned order. That order has been challenged in this Second Appeal on the ground that the third party has no right to prefer Appeal. Hence, this is the only question of law which is to be answered in this Second Appeal.

( 6 ) SO far as provisions in the Code of Civil Procedure for filing Appeals are concerned it is nowhere provided specifically that third party should not prefer an appeal, but the normal practice is that the persons against whom a decree is passed by the trial Court can prefer an Appeal in the first appellate Court. There is procedure for filing Appeal by third party. However, various decisions from time to time have ruled that third party can also file Appeal provided two essential conditions are satisfied. The first is that such third party is going to be vitally and adversely affected by the judgment and decree of the trial Court and such party has interest in the property which was the subject-matter of the suit. Merely by showing that a party has interest in the property in suit or that his interest is going to be adversely affected he cannot, as of right, file Appeal. Another exercise has to be undertaken by him, viz. , he has to apply for leave of the appellate Court for permitting him to file Appeal. So in effect this is second condition, viz. , the appeal by third party can be filed only with the leave of the appellate Court.

( 7 ) NEXT question arises is what should be the guideline for the appellate Court to exercise discretion in permitting such party to file an Appeal. Of course the discretion is to be exercised judicially on sound reasoning and well established principles of law. The discretion is not to be exercised arbitrarily or unreasonably. The discretion which is exercised arbitrarily or unreasonably is liable to be interfered with.

( 8 ) IN the case before me both the ingredients are fulfilled. The appellant in the first appellate Court had established that he had right in the property in suit. It is not the case where the appellant in the first appellate Court was all together a third party and abruptly preferred to file First Appeal. When the suit was filed in the trial court he was not impleaded as defendant. During the pendency of the suit the State government, Gra

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