JUDGMENT

H.C.P. Tripathi, J. - This is a defendants appeal.

2. A suit was instituted by the plaintiff-respondent for partition of a holding on the assertion that one Chhotey and defendant No. 1 were the co-sirdars of the agricultural holding, that Chhotey deposited ten times of the rent in State Treasury on 16-1-54 and became Bhumidar of his share which he transferred along with the standing crops in favour of the plaintiff by a registered sale deed and that the plaintiff stepped into his shoes and became entitled to one half share of the holding and the crops standing thereon. On the allegation that the defendant No. 1 had cut and appropriated the entire crop the plaintiff claimed a sum of Rs. 510/- as damages from him. The defendant admitted that he and Chhotey had half share each in the disputed holding but contested the plaintiffs claim for partition on various grounds one of which was that the suit was bad for non-joinder of Chhotey who was a necessary party to the suit.

3. The trial court framed the necessary issues and held that the crop in dispute was produced by the defendant, that no crop was transferred by Chhotey in favour of the plaintiff, that the sale of the plots was legally invalid as Chhotey had till the date of sale not become Bhumidar of those plots and that the suit was bad for non-joinder of a necessary party. On these findings the learned Munsif dismissed the suit.

4. On appeal the lower appellate court held that as Chhotey had deposited ten times rent for his holding on 16-1-1954 he became entitled to a declaration that he had acquired the rights of a Bhumidar since that date and therefore the transfer made by him in favour of the plaintiff-respondent was valid. In view of this finding the learned Judge held that the plaintiff was entitled to the relief of partition. He allowed the plaintiffs claim for partition but agreed with the finding of the trial court that he was not entitled to any damages on account of defendant having appropriated the crop. This appeal is directed against that order.

5. Learned counsel for the defendant has raised two points in support of this appeal. He has urged that as a Bhumidari Sanad was issued on 12-3-1954 which provided that Chhotey would become entitled to Bhumidari rights from 1-7-1954 it could not be held in law that Bhumidari rights had been conferred on Chhotey on 16-1-1954 when he deposited the amount of ten times rent in the Treasury and transferred his share in the holding in favour of the plaintiff-respondent. The other point urged by the learned counsel is that the trial court has held the suit as bad for non-joinder of Chhotey who was a necessary party and the lower appellate court has erred in law in allowing the appeal without reversing that finding. Reliance was placed by the learned counsel in support of this contention on a decision of this Court reported in 1950 Allahabad at page 598.

6. Sec. 134(1) of U.P. Act 1 of 1951 provides that:

"If a sirdar belonging to the class mentioned in Cl. (a) of Sec. 131 pays or offers to pay to the credit of the State Government an amount equal to ten times the land revenue payable....for the land of which he is the Sirdar, he shall, upon an application duly made in that behalf to an Assistant Collector, be entitled, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in Sec. 137 in respect of such land ...."

7. The relevant portion of Sec. 137 as it stands today reads:-

"(1) If the application has been duly made and the Assistant Collector is satisfied that the applicant is entitled to the declaration mentioned in Sec. 134 he shall grant a certificate to that effect.

(2) Upon the grant of the certificate under sub-Sec. (1) the Sirdar shall from .... the date thereof

(a) become and be deemed to be a Bhumidhar of the holding or the share in respect of which a certificate has been granted...."

8. It will be noticed that by Sec. 29 of U.P. Act XVI of 195