Where an act of the Government is questioned or the proprietary right or right to revenue of the Government is likely to be affected, Government is a necessary party to the suit.

G. K. MISRA, J.

( 1 ) PLAINTIFFS are the appellants. They brought the suit as representatives of village panchapara under 0. I, Rule 8, C. P. C. Their case is as follows : the disputed lands constitute 2. 32 acres in plots 659 and 2171 in Khata 290 of village Panchapara in the district of Balasore. The lands have been recorded as Gochar and included in Rakshit (Reserved) Holding No. 290. Defendants 1 to 7 are the ex-landlords of the village and defendants 8 to 11 are the lessees in respect of different portions of, the suit lands from defendants 1 to 7. The cause of action arose on 7th June 1954 when the defendants 8 to 11 dug foundation pits and when the plaintiffs came to know of an order of exchange sanctioned by the Collector. On that day the plaintiffs on enquiry cams to learn that the petition had been filed by some of the ex-landlords in which they alleged that they intended to prepare a fruit and vegetable garden in the vicinity of Chand-balli town; that the disputed lands were unsuitable for the purpose of Gochar although recorded as such and that the Anabadi plots 1699, 1802 and 1780 would be more suitable for grazing of cattle. On these assertions they moved the Collector of Balasore for exchange of the said Anabadi plots for the disputed Gochar plots. There was no proper enquiry in the matter and the Collector ultimately passed an order on 7th March 1949 sanctioning exchange. In paragraph 10 of the plaint various grounds were given as to how the order of the Collector dated 7th March 1949 is illegal and void. Paragraph 10 (e) states that the Collector as representative of Orissa Government had a serious duty to look to the welfare of the villagers and was responsible for their protection. Paragraph 10 (g) states that the agreement dated 19th september 1949 is illegal and the terms embodied therein are opposed to the powers vested in the Collector. The relief claimed under paragraph 19 (b) is "that it be further declared that the order of exchange passed by the Collector is null and void as it was obtained by fraud and misrepresentation and the defendants have acquired no title to the disputed lands. " the main relief was for permanent injunction to be passed against the defendants restraining them from interfering with the possession of the villagers.

( 2 ) THE ex-landlords and the lessees contested the suit. Their case was that there was valid and proper enquiry and the exchange sanctioned by the Collector was within his powers and legal. On 10th October, 1949 two agreements were signed in between the Collector of Balasore on behalf of the Government on one hand and the ex-landlords on the other sanctioning the exchange. The operative portion of the agreement is as follows :

"it is hereby agreed and declared that the said Gochar lands have been exchanged and placed under the control of the grantee (ex-landlords) for private use and the grantor (Collector of Balasore) hereby reserves the whole and the entire right over the said Anabadi lands for the use of the public for grazing their cattle and henceforward the exchanged Anabadi lands will be treated as Gochar and the exchanged Gochar lands will be treated as Anabadi lands and it is hereby expressly stated and declared that the grantor will remain in exclusive possession of the Anabadi and the grantee and his heirs and successors in interest shall exercise no possession by whatsoever means on it --That the grantor shall have entire right claim and power of disposal over the said Anabadi land which he can keep, reserve for Sarbasadharan purpose without interference from the grantee or his heirs and successors in interest. "

The defendant raised a contention that the Government was a necessary party te the suit amongst others.

( 3 ) THE suit was tried in the first instance by the learned Munsif of Bhadrak who decreed the suit holding that (1) the suit was not bad for non-joinder of parties; (ii) the order of the Collector sanctioning the exchange was vitiated ty fr