Ajibun Nessa inherited the suit land from her deceased father Indan Ali was also not disputed. In fact, one of the vendors of the plaintiff was examined as a witness(PW 4), who also deposed admitting the execution of the sale deed in favour of the plaintiff. Apparently no relief was sought against the vendors of the plaintiff. It is the trite law, that there is a distinction between the necessary party and the proper party. A necessary party, is one in absence of whom, the court is not in a position to decide the dispute raised in the suit. It is only the necessary party, whose absence is fatal. Mere non-joinder of a party, against whom no relief is claimed and whose presence is only formal, having no affect on the decision or the suit is not fatal. In the instant case, admittedly Ajibun Nessa was the owner of the suit land and the legal heirs of Ajibun Nessa sold the suit land to the plaintiff by registered sale deed which was not denied by the defendants. The plaintiff’s suit was basically for declaration of right, title and interest and recovery of possession from the defendants. The plaintiff has clearly stated in the pleadings, that there was amicable partition between Ajibun Nessa and Sunahar Ali and they were possessing their respective shares within the specific boundary. Such pleadings as regards the amicable partition between Ajibun Nessa and Sunahar Ali was also not denied specifically, which amounted to admission of the factum of amicable partition.
