JUDGMENT

D.N. Roy, J. - This is a Defendant's second appeal arising out of a suit for the division of a holding u/s 32 of the Banaras State Tenancy Act (No. III of 1949). In the trial court the State of UP was made a party to the suit after the merger of the Banaras State to UP. When the Defendant preferred his appeal in the lower appellate court, he did not make the UP Government a party. The Plaintiff Respondents raised a preliminary objection in that court to the effect that the appeal was incompetent in view of the failure on the part of the Defendants to make the UP Government a party. It appears that an application was made beyond time in the court below praying that the UP Government be made a party. But when the application came up for hearing, the learned Counsel for the Defendant-Appellant stated in the court below that the UP Government was not a necessary party and as such he would not press the prayer for making the UP Government a party.

2. In second appeal it has been contended that the UP Government was not a necessary party and that even if it was a necessary party the lower appellate court could have condoned the delay, having regard to Section 5 of the Indian Limit