JUDGMENT

S.N. Singh, J. - This petition under Article 226 of the Constitution arises out of a suit filed by the opposite parties Nos. 3 to 5 for the ejectment of the petitioners from plot No. 1171. They claimed to be hereditary tenants of the plot in dispute, being successor-in-interest of the previous hereditary tenant and, in the alternative, by prescription under Section 180 (2) of the U. P. Tenancy Act.

2. The suit of the opposite parties was contested by the petitioners, who claimed themselves to be hereditary tenants by prescription. It was further alleged that the land in suit was not identifiable. Pleas based on res judicata and limitation were also taken.

3. The trial Court framed 12 issues and, after dealing with every one of them, dismissed the suit holding the defendants to have become hereditary tenants and Sirdars of the plot in suit. Opposite parties Nos. 3 to 5 preferred an appeal which was heard by an Additional Commissioner and the Additional Commissioner, being of the opinion that the State and Land holder were necessary parties, without going into the merits of the case, set aside the judgment of the trial Court and remanded the case for de novo trial with a direction to implead the land-holder and to proceed with the case. The petitioner filed an appeal before the Board of Revenue, and the learned Member summarily rejected the appeal with an order which is not at all intelligible to rue. The petitioners have come up to this Court and assert that the learned Additional Commissioner and the Board have committed mistakes apparent on the face of the record in setting aside the order of the trial Court without going into the merits of the case. I have heard learned counsel for the petitioners as well as Sri Ram Awadh Misra, learned counsel for the opposite parties. In my opinion the submission of the learned counsel for the petitioners has force, and should be accepted.

4. In a suit under Section 180, a landholder or the State is not a necessary party, and there is no provision in the U. P. Tenancy Act which makes it incumbent on the plaintiff to implead the State or the landholder as a party to a suit under Section 180. The plaintiffs in this case filed the instant suit and their case was not accepted. The defence pleas based on different points were accepted. Acceptance of any one of the points taken by the defendants was enough to non-suit the plaintiffs. If, according to the Additional Commissioner, the land-holders was a necessary party to the suit, the plaintiff himself was to be blamed for that, and for the fault of the plaintiff it was not at all desirable to penalise the defendant who had obtained a valid decree in his favour. The learned counsel for the petitioners is right when he argues that even when the State or the land-holder is impleaded and the decision of the issues which did not concern the rights of the landholder or the State are decided against the plaintiff, still the suit will be dismissed, it will be of no use to remand the case and get a decision impleading the State. When the statute has not made it obligatory on the part of the plaintiff CIS' to implead the State, in my opinion, the learned Additional Commissioner was wrong in setting aside a decree which was in accordance with law unless on the merits he found that the decision was wrong. The -N, Board has not at all considered these aspects of the case and has only satisfied itself by observing that the Commissioner had not decided the case on merits. The proper course would have been that the Commissioner\ should have considered the case on merits and if he found that the plaintiffs' suit could not be dismissed on the points raised by the defendants, it was then alone that he could have remanded the case for impleadment on the view that it was necessary for the plaintiffs to have impleaded the land-holder or the State. The decision of the learned Additional Commissioner cannot be maintained. Further, the Board and the Additional C