1. Plaintiffs are the appellants. They brought the suit as representatives of village Panchapara under O. 1, R. 8 of the CPC. Their case is as follows: The disputed lands constitute 2.32 acres in plots 659 and 2171 in Khata 290 of village Panchapara in the district of Balasore. The lands have been recorded as Gochar and included in Rakshit (Reserved) Holding No. 290. Defendants 1 to 7 are the ex-landlords of the village and defendants 8 to 11 are the lessees in respect of different portions of the suit lands from defendants 1 to 7.

2. The cause of action arose on 7th June 1954 when the defendants 8 to 11 dug foundation pits and when the plaintiffs came to know of an order of exchange sanctioned by the Collector. On that day the plaintiffs on enquiry came to learn that the petition had been filed by some of the ex-landlords in which they alleged that they intended to prepare a fruit and vegetable garden in the vicinity of Chandballi town; that the disputed lands were unsuitable for the purpose of Gochar although recorded as such and that the Anabadi plots 1699, 1802 and 1780 would be more suitable for grazing of cattle.

3. On these assertions they moved the Collector of Balasore for exchange of the said Anabadi plots for the disputed Gochar plots. There was no proper enquiry in the matter and the Collector ultimately passed an order on 7th March 1949 sanctioning exchange. In paragraph 10 of the plaint various grounds were given as to how the order of the Collector dated 7th March 1949 is illegal and void. Paragraph 10(e) states that the Collector as representative of Orissa Government had a serious duty to look to the welfare of the villagers and was responsible for their protection. Paragraph 10(g) states that the agreement dated 19th September 1949 is illegal and the terms embodied therein are opposed to the powers vested in the Collector.

4. The relief claimed under paragraph 19(b) is

“that it be further declared that the order of exchange passed by the Collector is null and void as it was obtained by fraud and misrepresentation and the defendants have acquired no title to the disputed lands.”

5. The main relief was for permanent injunction to be passed against the defendants restraining them from interfering with the possession of the villagers.

6. The ex-landlords and the lessees contested the suit their case was that there was valid and proper enquiry and the exchange sanctioned by the Collector was within his powers and legal. On 10th October, 1949 two agreements were signed in between the Collector of Balasore on behalf of the Government on one hand and the ex-landlords on the other sanctioning the exchange. The operative portion of the agreement is as follows:

“It is hereby agreed and declared that the said Gochar lands have been exchanged and placed under the control of the grantee (ex-landlords) for private use and the grantor (Collector of Balasore) hereby reserves the whole and the entire right over the said Anabadi lands for the use of the public for grazing their cattle and henceforward the exchanged Anabadi lands will be treated as Gochar and the exchanged Gochar lands will be treated as Anabadi lands and it is hereby expressly stated and declared that the grantor will remain in exclusive possession of the Anabadi and the grantee and his heirs and successors in interest shall exercise no possession by whatsoever means on it — That the grantor shall have entire right claim and power of disposal over the said Anabadi land which he can keep, reserve for Sarbasadharan purpose without interference from the grantee or his heirs and successors in interest”

7. The defendant raised a contention that the Government was a necessary party to the suit amongst others.

8. The suit was tried in the first instance by the learned Munsif of Bhadrak who decreed the suit holding that (i) the suit was not bad for non-joinder of parties; (ii) the order of the Collector sanctioning the exchange was vitiated by fraud and mis-representation of facts; (iii) the Court had jurisdiction to try the suit; (iv) the suit was not barred by limitation; and (v) the suit was otherwise maintainable.

9. In appeal, the learned Subordinate Judge did not decide all the questions on which the Trial Court expressed its views. He only decided the single issue as to whether the State of Orissa through the Collector of Balasore was a necessary party to the suit. Having held that the Government was a necessary party to the suit, he set aside the judgment of the Trial Court and remanded the suit for giving an opportunity to the plaintiff to implead the Collector of Balasore as a party defendant and for other consequential opportunities. The Second appeal has been filed against this order of remand.

10. Mr. Misra took a preliminary objection that no second appeal lay. The contention is sound. The remand order is not one under Order 41, Rule 23 or Rule 25 of the CPC. but is one under Section 151 of the CPC. Accordingly only a revision lies. As the appellants have paid substantial Court-fees, I permitted them to argue the second appeal on the footing that it is a Civil Revision.

11. The only question for determination in the Civil Revision is whether the State of Orissa is a necessary party to this litigation. Various authorities have been cited on either side. What parties are necessary parties is not always easy to determine. This would depend upon facts and circumstances of each case. The relevant provisions of the Code of Civil Procedure on the topic are Order I, Rules 9 and 10(2).—

“9. No suit shall be defected 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.

* * * * * * * * * * *

10(2). The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

12. Two conditions must, however, be satisfied before a party is considered to be a necessary party. They are — (i) There must be a right to some relief against the party not joined. This means that no decree can be passed without affecting the rights of the absentee-parties; and (ii) the presence of the absentee party should be necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit. This concept includes the idea that no decree should be passed by a Court which would be rendered infructuous or would become ultimately inexecutable. If a case satisfies these tests, then the absentee-party is a necessary party and the suit cannot be effectually and completely adjudicated upon in respect of all questions involved without that party being impleaded in the suit.

13. Now the question arises as to whether the Government would be a party in all cases where its or any of its officer's orders are challenged. As a matter of general law where the Government has no interest of any kind in a suit, it is not a necessary party even though its order might have been under challenge. Where a judicial or sometimes quasi-judicial order is passed by an officer of the Government in exercise of its statutory powers as between parties to the litigation, the Government is not a necessary party. But where an act of the Government is questioned or the proprietary right or right to revenue of the Government is likely to be affected, Government is a necessary party to the suit.

14. An illustration of such a type of case is reported in C. Pillai v. D.M Devasahyam, AIR 1956 Trav-Co 181 (FB). There the very cause of action on which the plaintiff brought the suit was furnished by an act of the Government. The prayer in the plaint was not only for a declaration of the plaintiff's title to the plaint properties and recovery of possession of the same but also specifically for cancellation of the Government orders setting aside the revenue auction sales. When the sales were set aside by the Government, it had only to refund to the auction-purchaser the sale price paid by him. If the order setting aside the revenue sale is cancelled in a suit to which the Sirkar is not a party, the decree in the suit would not be binding on the Sirkar, and therefore in spite of the decree in that suit, it would be open to the Sirkar to enforce the right to sell the property again which they got as a result of the Govt. Order setting aside the revenue sale.

15. This case is directly on the point and is similar to the present case. In this case title to the disputed lands was obtained by the ex-landlords on the basis of the exchange sanctioned by the Collector and the agreements executed by the Collector and the ex-landlords. If the plaintiffs' suit is decreed, defendants' title would be negatived; whereas their parting with their title in the exchanged property would continue to vest in the Government.

16. It would appear from paragraphs 77, 78 and 79 of James Final Report on the Revision Settlement of Orissa (1906-1912), cited by Mr. Behura for petitioners, that in respect of the lands reserved for communal purpose, which include Gochar lands, a note was then made in the Khatian that the village community were entitled to graze their cattle without charge on these lands and it was on this ground they were exempt from assessment. The proprietary right in communal lands did not fully vest in the landlords and that is why in respect of these communal lands the landlords had not been assessed.

“77. In the Provincial Settlement a certain area was set aside by the Settlement Officer as common land of the village community. I quote from paragraph 47 of Mr. Madox's report, which describes the procedure thus followed:

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A note was then made in the Khatian that the village community were entitled to graze their cattle without charge on this land, and that it was on this ground exempted from assessment. Similarly, plots actually used as, or suitable for cremation grounds were to be set apart, a note being made in the Khatian for the right of the tenants to their use.

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To safeguard these lands against subsequent encroachment a clause has been inserted in the form of Kabuliyat to be executed by all the zamindars and sub-proprietors, entering into engagements for the payment of revenue, binding them to preserve as grazing grounds, cremation grounds and reserved tanks, the plots specified in the schedule which is annexed to the Kabuliyat, to take no rent or grazing charge, and to take action to the Courts to eject trespassers if required by the Collector to do so.

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78. The plots so reserved at the Provincial Settlement were entered in the Zamindar's Anabadi Khatian, with a note of the reservation in the remarks column. In the Midnapur Settlement plots over which common right was exercised by the public, by the village community, or by a portion of the community, were included in a Khatian headed “Sarba-Sadharan”. This Khatian has been used in the Orissa Settlement since 1908. The Khatian has in many cases been given a sub-head in English of “Record-of-rights” of “Easement of the village community”, but it has never actually been limited to easements. In it have been entered public lands, such as village roads; profits, such as grazing rights; and easements proper such as right of way. It is in fact a record of the limitations on proprietary right in uncultivated land of a mahal.

79. It was soon discovered that mistakes had been made in the Provincial Settlement in the reservation of these lands, and that plots which were unsuitable for grazing and were, as a matter of fact, not used for grazing had in many cases been reserved. For these cases a procedure was sanctioned by the Board of Revenue by which the landlord proposed to the Settlement Officer an exchange of their waste to be reserved in place of the existing reserved land, and the Settlement Officer forwarded the proposal to the Collector with his report. In these cases the final order lay with the Collector and the result is in each case that the reserved area entered in the Zamindary Kabuliyat is to that extent amended.”

17. it need hardly be emphasised as is mentioned in the last line of paragraph 78 that it is in fact a record of limitations on proprietary right in uncultivated land of a mahal — Whatever be the customary rights of the villagers in the Gochar, there can be no denial of the fact that the Collector has got the right of disposal of such lands. At any rate, it cannot be plainly said that the Collector has no right of disposal. Even if the Collector has no right of disposal, the act of sanction of exchange and the consequential execution of bipartite agreements are act of the Collector in discharge of the executive functions and not in exercise of judicial or quasi judicial powers. Before the plaintiff can get a decree, they must have to get rid of this executive act. In fact they have assailed this very act in the plaint as illegal and the relief is to set aside those orders and agreements. No decree for eviction from the disputed lands can be passed against the defendants without affecting the rights of the Government in its right of disposal of such communal lands. One of the questions involved in the suit regarding effectual and complete adjudication is the validity of the executive act of the Collector in conferring upon the defendants absolute title in the disputed lands in which the plaintiffs have the grazing rights. In such circumstances, the Collector is a necessary party in accordance with the principles enunciated by me. Raghunath Lenka v. Karunakar Rout, AIR 1957 Orissa 257 is in support of this view.

18. Mr. Behura placed reliance on Sabirer Ma v. Behari Mohan Pal, AIR 1928 Cal 23, Jivandas Khimji v. Narbade Bai, AIR 1959 Cal 519 and Kashi v. Sadashiv, ILR 21 Bom 229, amongst other authorities. AIR 1928 Cal 23, though prima facie seems to be on all fours with this case, ss relating to grazing rights, is wholly inapplicable. In that case, plaintiffs claimed grazing rights under an implied grant from the Mirasdars against defendants who were trespassers. The trespassers claimed that the Mirasdars from whom plaintiffs derived title were necessary parties. Their Lordships rightly held that on the plaintiff's case the owners were unnecessary parties. On proof of plaintiffs' right of pasturage they were entitled to eject the trespassers who infringed with the right and for determination of that question, the determination of title of the plaintiffs' predecessors was unnecessary. There was no question before their Lordships like the one here as to the right of the Collector to the disposal of pasturage extinguishing the rights of the plaintiffs. The other two decisions are similarly distinguishable. The Civil Revision fails and is dismissed, but in the circumstances without costs.

HG/J/D.V.C

19. Revision dismissed.