JUDGMENT
Fletcher, J.
1. This is an appeal from the decision of the learned District Judge of Bankura, dated 7th January 1915, after remand from this Court. I was one of the Judges responsible for the order of remand and may be that the remand order might have been expressed in more clear terms, so that the learned Judge of the lower Appellate Court might not have fallen into an error. As a matter of fact, I think, if the order be read as a whole, there is no doubt–and it is not suggested that there is any–that there is ambiguity in the order of remand; and the only person who has fallen into a doubt as to the meaning of the order of remand seems to be the learned District Judge. What the order meant is this: That it was outside the authority of the learned District Judge to send the case back to the Court of first instance directing the Judge there to add the Secretary of State as a party to the suit and the order of remand directed the learned Judge of the lower Appellate Court to re-hear the appeal without adding the Secretary of State as a party to the suit and that, when re-hearing the appeal, if the learned Judge came to the conclusion that the Secretary of State was a necessary party to the suit, he was not precluded from dismissing the plaintiffs’ suit on the ground of the absence of a necessary party, the plaintiffs having expressly stated that they did not intend in any case to have the Secretary of State added as a party. The case went back to the learned District Judge and it is practically admitted on both sides that the learned Judge has not disposed of the case properly. The learned Judge has come to the conclusion that the Secretary of State is a necessary party. That is hardly attempted to be supported by the learned Government Pleader in this Court. Although he may be described as a proper party, there is no reason why this litigation should not take place and be determined between the two contending parties, whatever their rights may be in the absence of the Secretary of State. The Secretary of State will not be affected by that determination if he comes to resume the lands or if he dismisses the present ghatwal. Anything that may be decided between the present ghatwal and’ the plaintiffs will not in any way prejudice or affect the rights of the Secretary of State. What the rights of the ghatwal in the lands are, it is not necessary in. the present case to determine. It may be pointed out that, on the former occasion, when the case was before the learned District Judge, he came to the conclusion that the ghatwal was not a mere servant but that he had, in fact, an interest in the land. So far as the cases show, that seems to be in accordance with the current of authority as to the rights of the ghatwals in must of the Districts in Bengal. Of course we need not say anything which would fetter the hands of the learned Judge. All we need say in this case is that, although the Secretary of State might have been a proper party to the suit and the present defendant could not have objected if he had been there as a co-defendant, it is a very different thing to say that he is a necessary party and the suit cannot be decided in his absence. There is no reason, whatever the rights ,of the parties may be, why these rights should not be ascertained by the learned District Judge in the absence of the Secretary of State. The decree of the learned District Judge must, therefore, be set aside and the case must go back to him to re-hear the appeal on the merits. Costs of this hearing will abide the result of the re-hearing before the lower Appellate Court.
Teunon, J.
2. I agree.
