Narendra Nath Tiwari, J.

1. While admitting this appeal, this Court had framed the following substantial questions of law:

(i) whether in the facts and circumstance of the case the State of Bihar was a necessary party in view of the facts that the State did not itself claim any right, title and interest in the suit property ?

(ii) Whether, in any event, the plaintiffs relief relating to the declaration of title and confirmation of possession would have been considered even in absence of order of the Circle Officer?

2. Notice was issued to the respondents, but in spite of service of notice, nobody appeared and therefore this appeal has been taken up for hearing in absence of the respondents.

3. The Courts below concurrently held that the plaintiffs appellants suit is bad for non-joinder of necessary party and no relief can be granted in absence of the said party.

4. The appellants were the plaintiffs. They filed Title Suit No. 55/80 in the Trial Court praying relief for declaration of title and confirmation of possession as also for declaration that the order of eviction passed by the Circle Officer in Revenue Miscellaneous Case No. 3/1979-80 dated 18-8-79 is wholly without jurisdiction and for injunction, restraining the defendants from dispossessing the plaintiffs from the suit land pursuant to the order of the Circle Officer. The plaintiffs case was that the father of the respondents Satish Chandra Choudhary made a Kurfa settlement of the land in question in Baisakh 1340 B. S. corresponding to 1937 about 12 years before the enactment of Santhal Parganas Tenancy Act, 1949 in favour of the father of the plaintiff alindra Lal Choudhary. The said settlement was followed by delivery 01 possession to the settlees and payment of rent receipts right from the year of settlement i.e. 1340 B. S. was made and on that basis the plaintiffs ancestors and thereafter the plaintiff acquired indefeasible right to hold and possess the land which accrued prior to the enactment of the Santhal Parganas Tenancy Act, 1949. The said lands thereafter were converted into Dhani land from Bari land and the settlee and after his death his successor-in interest enjoyed the usufruct of the said land. Further case is that the said Malindra Lal Choudhary, who was issueless, adopted the plaintiff appellant No. 1 as his son by a deed of adoption, being No. 434/1964. It was further held that after expiry of 12 year from the date of settlement the plaintiffs ancestors stopped paying Kurfa rent and thereafter remained in hostile possession of the land. The father of the plaintiff No. 1 died in the year 1968. On 19-7-1979 the sons of the settlers filed an application before the Circle Officer praying for ejectment of the plaintiffs and restoration of possession in their favour. The Circle Officer on the said application passed an order dated 18-8-79 for eviction of the plaintiffs from the said holding, declaring the settlement of the land as a transfer contrary to the provision of Santhal Parganas Tenancy Act, 1949 and for restoration of possession in favour of the defendants. According to the plaintiffs, taking under advantage of the said order, the defendants started interfering with the plaintiffs possession which gave rise to the cause of action for the suit.

5. In the trial Court summons were issued and served on the defendants, but they did not appear to contest the suit. The suit was finally heard and decided ex parte. The trial Court dismissed the suit, holding the same as not maintainable for non-joinder of the State of Bihar through the Circle Officer as a party defendant. According to the trial Court since the eviction order was passed by the Circle Office, the State of Bihar was the necessary party and in absence thereof the suit was not maintainable. The plaintiffs appellants

thereafter preferred regular appeal before the District Judge, Dumka, S. P. In the said appeal the respondents appeared and contested the appeal. The said appeal was ultimately he