ORDER :

1. Heard Mr. Kundan Kumar Ambastha, counsel appearing on behalf of the appellants.

2. Heard Mr. Lalit Kumar Lal, counsel appearing on behalf of the respondents.

3. Counsel for the parties jointly submit that although the instant case has been listed under the heading for orders, but the case may be taken up for final disposal and accordingly they have argued the case on the merits at length.

4. Counsel for the appellants submits that this appeal has been filed against the judgment and decree dated 28.01.2002 (decree signed on 07.02.2002) passed by 1st, Additional Judicial Commissioner, Khunti in Title Appeal No. 50 of 2000 setting aside the judgment and decree passed in Partition Suit No. 230 of 1985 and remanding back the case to the learned trial court directing the plaintiffs/appellants to add the Deputy Commissioner, Ranchi a party in the suit.

5. Counsel for the appellants submits that the matter arose out of Title Partition Suit No. 230 of 1985, which was dismissed by the learned trial court. He submits that in the matter of partition suit, which was involved in this case, no relief was claimed against the State and the State was neither a necessary party nor a proper party and the matter was exclusively between the plaintiffs and the defendants. Accordingly, the learned lower appellate court was not justified in holding that the Deputy Commissioner, Ranchi was a necessary party and remanding the matter to the learned trial court by directing the appellants to make the Deputy Commissioner, Ranchi as a party in the suit. He submits that the suit was for partition of suit land to the extent of ½ share including ½ share in the compensation amount arising out of land acquisition.

6. The counsel further submits that before the learned trial court one of the issues which was framed was issue no. 11 as to whether the suit is barred on account of non-joinder of a necessary party? This issue was decided by the learned trial court vide Para 17 of the judgment against the plaintiff. He submits that even in the written statement, the defendants did not raise a plea that the State having not been made party, the suit was barred on account of non-joinder of necessary party and it was argued by the plaintiff before the learned trial court that such plea was taken at the stage of argument, which is not permissible in law. However, the learned trial court held that the Deputy Commissioner was a necessary party and held that such legal plea can be raised at any stage. The learned trial court dismissed the suit. The appellant filed an appeal and the learned lower appellate court vide impugned order remanded the case to the learned trial court after setting aside the judgment and decree passed by the trial court with a direction to allow the plaintiffs to add Deputy Commissioner as a party in the suit.

7. Counsel for the appellants refers to Order 1, Rule 3 of the Code of Civil Procedure, 1908 and submits that as per Order 1, Rule 3 of C.P.C., persons may be joined in one suit as defendants, only when any right to relief in respect of, or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such person, whether jointly, severally or in the alternative. He submits that no relief was claimed against the State and accordingly, it cannot be said that the Deputy Commissioner was a necessary party or a proper party. He further submits that the learned lower appellate court ought to have decided the case on merits, instead of remitting back the case to the learned trial court, allowing the plaintiffs/appellants to add the Deputy Commissioner, as a party in the suit. He has relied upon a judgment passed by this Court reported in 2005 (2) JLJR 489 (Uma Pada Choudhary vs. Panchanand Choudhary) and submits that in view of the ratio laid down by this Court at Para 8 of the said judgment, that case that State was not a necessary party, as no declaration of title and so-called possession was sought for