The main legal point established in the judgment is the distinction between mis-joinder or non-joinder of a party and non-joinder of a necessary party, and the court's jurisdiction to direct remand for fresh disposal after impleading a necessary party.

JUDGMENT :

Indrajit Mahanty, J. - The Appellant Jaibunnisha Bibi who was Defendant No. 4 in T.S. No. 636 of 1989 before the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack, seeks to challenge the judgment dated 13.5.2004 passed by the Addl. District Judge, Fast Track Court-II, Cuttack in Title Appeal No. 52 of 2000 who by his judgment and decree has set aside the decree passed in the suit and further directed remand of the matter to the trial Court for fresh disposal after impleading one Muta Alli as a party to the suit.

2. The brief facts leading to filing of the present appeal are that one Sk. Jalaluddin (R-1) had instituted T.S. No. 636 of 1989 in the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack for declaration of his right, title and interest over the suit property on the strength of a registered sale deed dated 7.11.1988 made out in his favour by Atturan Nissa Bibi (D.2) and Kaisuran Bibi (D.3), the daughters of one late Ramjan AM. Sk. Jalaluddin had also prayed for a declaration that Gouri Sankar Agarwalla (D.1) was a tenant whose tenancy has been terminated and for a further declaration that the said G.S. Agarwalla has no right, title and possession over the disputed land as well as for recovery of arrear rent and for permanent injunction against the Defendants restraining them from changing the nature and character of the suit land.

3. The plaint story indicates that the suit property originally belonged to one Ramjan Alli who died leaving behind is widow (2nd wife) Jaibunnissa Bibi (D.4) and two daughters through his pre-deceased first wife, namely, Atturan Nissa Bibi and Kaisuran Bibi (Defendants 2 and 3 respectively). The Plaintiff's case is that he purchased the suit property from the daughters of late Ramjan Ali, namely, Defendants 2 and 3 who claim that the suit property fell to their share after death of their father Ramjan Alli.

The case of the present Appellant is that Ramjan Alli after death of his first wife-Fatima Bibi, married her and she fostered a son, namely, Muta Walli. However, Defendants 2 and 3 took the stand that Muta Walli was not the son of Ramjan AIM and he was the foster son of Jaibunnissa Bibi.

The suit was decreed by the trial Court in favour of the Plaintiff vide the judgment dated 15.4.2000 and the said judgment was challenged by the present Appellant in T.A. No. 52 of 2000 before the Addl. District Judge, Fast Track Court-II, Cuttack. By the judgment dated 13.5.2004, the lower appellate Court came to hold as follows:

From the very pleadings of the parties, it is seen that Muta Walli is a necessary party in the suit. But he has not been made a party in this case. Behind the back of Muta Walli the learned Civil Judge has given a finding that Muta Walli is not the natural son of Ramjan Alli. The law is well settled that no finding can be given behind the back of a person allegedly to have interest in the suit property. Under such circumstances without going through the merit of the case, it would be wise to remand the matter to the concerned Court for fresh disposal after being or Muta Walli as one of parties to the suit.

Accordingly, in view of the aforesaid finding, the lower appellate Court set aside the judgment passed by the trial Court and remanded the matter to it for fresh disposal after impleading Muta Walli as one of the parties to the suit.

4. Mr. Mukherji, learned Counsel for the Appellant submitted that the lower appellate Court has committed gross error in law by not keeping in view the mandatory provisions of law laid down in Section 99 and Order 1, Rule 9 Code of Civil Procedure, since once the lower appellate Court came to a finding that Muta Walli was a necessary party to the suit, on such a finding, the appeal should have been allowed by directing dismissal of the suit, instead of setting aside the judgment and decree passed by the trial Court and remanding the matter back to it for fresh disposal after impleading Muta Walli as a party to the suit. Mr. Mukher