Mrs. Rekha Mittal, J.:- This order shall dispose of SAO Nos.42 and 43 of 2016 as these have emerged out of common order dated 26.02.2016 passed by the Additional District Judge, Kaithal. For the sake of convenience, facts are taken from SAO No.42 of 2016.

2. Harjeet Singh and others- respondents No.1 to 3 filed a suit for declaration, joint possession with permanent injunction claiming themselves to be owners in joint possession to the extent of 1/7th share in equal shares out of land mentioned in para No.1(a) and (b) of the plaint by opening challenge to mutation No.6434, release deed No.449/1 dated 13.06.2002 and mutation No.6659 on the premise that the same are null and void, illegal and not binding upon rights of the respondents/plaintiffs. The suit was contested by appellant-Roshani Devi, defendant No.3, as well as defendants No.1, 2, 4 to 6.

3. On consideration of the materials on record in the light of rival submissions made by counsel for the parties, the learned trial Court decided issues No.1 and 2 (pertaining to merits of the controversy) in favour of the respondents but the suit was dismissed only on the ground that the same is bad for non-joinder of necessary parties by recording findings on issue No.5 in favour of the appellant/defendant.

4. Two appeals were preferred against the judgment and decree dated 29.05.2013 passed by the trial Court. One was filed by respondents No.1 to 3/plaintiffs and the other by Roshani Devi (appellant/defendant No.3) to assail the findings of the trial Court on issues No.1 and 2. Both the appeals were disposed of by the Appellate Court vide judgment and decree dated 26.02.2016 whereby the judgment and decree passed by the trial Court has been set aside and the matter has been remitted to the trial Court for adjudication afresh with a direction to implead Rajeev, adopted son of Jogi Ram as a party in the suit.

5. Counsel for the appellant has submitted that she (appellant) raised a specific objection with regard to non-joinder of necessary parties i.e. Rajeev adopted son of Jogi Ram, but despite that objection, the respondents did not take any steps to implead said Rajeev as a party on the array of defendants. It is further argued that the respondents cannot be allowed to take advantage of their own wrong by setting aside the judgment and decree passed by the trial Court upholding plea of the appellant that the suit is bad for non-joinder of necessary party. It is further submitted that as the trial Court has refused to exercise jurisdiction for impleading Rajeev as a party, there was no occasion for the Appellate Court to allow such impleadment. In support of his contention, he has invited attention of the Court to the proviso appended to Rule 9 of Order 1 of the Code of Civil Procedure, 1908 (in short ‘CPC’) wherein it has been laid down that nothing in Rule 9 shall apply to non-joinder of a necessary party.

6. I have heard counsel for the appellant, perused the paper-book particularly the judgments passed by the Courts below.

7. It is an undisputed position of the case that claim of the respondents/plaintiffs qua merits of the controversy and their entitlement to 1/7th share in the suit property was held to be meritorious in the light of findings on issues No.1 and 2 recorded by the trial Court. Nevertheless, suit of the plaintiffs was dismissed on the ground of non-joinder of Rajeev adopted son of Jogi Ram.

8. Rule 9 of Order 1 CPC provides for misjoinder and nonjoinder of parties and a relevant extract therefrom reads as follows:-

“9. Misjoinder and non-joinder— No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.”

9. However, Rule 10 of Order 1 CPC deals with suit in name of wrong plaintiff and sub-Rule (2) thereof e