The non-joinder of a necessary party renders a suit not maintainable, and the proviso to Order 1 Rule 9 CPC, which allows for the addition of parties after the expiry of the limitation period, does not apply to the non-joinder of a necessary party.

N.K.Kapoor, J.

1. This is plaintiffs appeal against the concurrent findings of the courts below dismissing the suit filed by it.

2. Punjab Wakf Board, Ambala Cantt instituted this suit for possession of the suit property from defendant on the ground that suit property is a Wakf property and that defendant is in unlawful possession of the same.

3. Defendant contested the suit pleading that actually his mother is in possession of the property who is running a small Gurudwara and a small school in the disputed property. Defendant further denied that suit property is a Wakf property or the same vest in the plaintiff. It was further asserted by the defendant that a building at a cost of Rs. 8,500/-has been raised at the site. Plea of bar of limitation was also raised.

4. A number of issues relating to nature of the property, authority of the attorney to institute the suit, suit being within limitation, plea raised by the defendant that he has become owner by adverse possession were framed.

5. Trial Court on the basis of evidence adduced came to the conclusion that though there is no evidence of express dedication of the suit property as a mosque but there is evidence that it was being used by Muslims for offering prayers and so held that the suit property is a Wakf by user, issue No. 1 was decided in favour of the plaintiff. Similarly, under issue No.2 the Court held that Mohammad Iqbal was duly authorised to institute the present suit. Examining the pleas as to whether the suit was instituted within the period of limitation, the Court held that the same was barred by time. Resultantly, the suit of the plaintiff was dismissed.

6. Lower appellate Court on re-appraisal of the evidence whereas reversed the finding of the trial Court with regard to bar of limitation but upheld the decree holding that suit was bad for non-joinder of necessary parties. The lower appellate Court also found no substance in the plea of the appellant that even in the absence of mother of the defendant (even if taken to be a necessary party) a decree for joint possession should be passed in favour of the appellant. As per the lower appellate Court such a decree will not be executable against the mother of the defendant, who infact is in actual physical possession of the property and so there is no need to pass an inexecutable decree. Similarly, the Court found no ground to remand the case and permit the plaintiff to amend the pleadings with a view to implead mother of the defendant as one of the defendants. Resultantly, appeal was dismissed, thus, affirming the judmgent and decree of the trial Court.

7. Learned counsel for the appellant has argued that the Court below having decided all material issues in favour of the plaintiff has, however, chosen to non-suit him on the solitary ground that one of the person has not been arrayed as a defendant. According to the counsel, proviso to Order 1 Rule 9 CPC was added vide Act No. 104 of 1976 i.e. this added provision came into effect with effect from 1.2.1977 and since the suit had been filed sometime in the year 1971, proviso now added to Order 1 Rule 9 could not be made basis to dismiss the suit of the plaintiff. Thus, in the facts and circumstances of the case the Court ought to have permitted the plaintiff to implead mother of the defendant as one of the defendants and thereafter examined the case. Moreover, since the possession of the defendant has been found to be un-authorised, atleast a decree for joint possession ought to have been passed in favour of the plaintiff. Lastly, the Court ought to have permitted the plaintiff to amend the plaint and for that matter should have remanded to the trial Court for a fresh adjudication after permitting the parties/added party to adduce evidence as they may wish.

8. Having heard the learned councel for a while and on perusing the judgments of the Courts below, I am of the view that the appeal is devoid of merit and so deserves to be dismissed. A suit for posses