1. This appeal by the defendant is directed against the judgment and decree dated 25-11-1982 passed by the Civil Judge Sirsi, in Regular Appeal No. 22 of 1982, on his file, dismissing the appeal, on confirming the judgment and decree dated 20-4-1982 passed by the Principal Munsiff, Sirsi, in Original Suit No. 58 of 1978, on his file, decreeing the suit of the plaintiff as prayed for.
2. Plaintiff instituted a suit against defendant for a declaration that the documents d4ted 20-3-1978 got prepared by the defendant through the Revenue Authorities are illegal and void and, as such, they are not binding on him, with consequential relief of perpetual injunction restraining defendant from interfering with his possession over the suit property. According to plaintiff, he was granted 1 acre and 20 guntas of land on 14-8-1968by the Tahsildar of Sirsi and he was in possession of the same ever since that date. Defendant had also prayed for the grant of that land. Defendant, being aggrieved by the said grant of land in favour of plaintiff, went up in appeal before the Assistant Commissioner, Sirsi, and the Assistant Commissioner, by his order dated 31-12-1968, set aside the grant in favour of the plaintiff. He granted the land in favour of defendant. Plaintiff went up in appeal against the said order of the Assistant Commissioner to the Divisional Commissioner and Divisional Commissioner dismissed the appeal, confirming the order of the Assistant Commissioner, on 29-7-1970. Second appeal by the present plaintiff to the Divisional Commissioner was also dismissed on 29-2-1972. There after, the Tahsildar issued notice to the present plaintiff to hand over possession of the land sanctioned to the successful grantee, viz., the defendant on 2-8-1977, giving him seven days time to hand over possession. That notice issued to the present plaintiff was challenged by him before this Court in writ petition No. 6835 of 1977, contending that the notice was not in accordance with law and the same should be quashed. This Court, however, dismissed the writ petition on 24-1-1978. Again, the Tahsildar issued a fresh notice dated 8-3-1978 to the plaintiff. It was served on him on 10-3-1978. He, however, gave an application for extending time and granting stay on 17-3-1978 to the Tahsildar, which came to be rejected on 20-3-1978. There upon, the Tahsildar, according to him, went to the spot, took delivery of possession of the suit land from plaintiff and handed over possession to defendant who ha succeeded in the appeal in the land-grant case, as per Exhibit P-1 and the 'Kabja' receipt which is dated 20-3-1978. It is this proceeding conducted by the Tahsildar which is challenged by the plaintiff in the suit as illegal and void and he has prayed in the suit that the Court should declare all the proceedings in respect of delivery of actual possession of the suit land to the defendant as illegal and void and he has further prayed that permanent injunction be issued against defendant restraining him from interfering with plaintiff's peaceful possession of the suit land.
3. The suit was resisted by the defendant by filing his written statement. He asserted that the Tahsildar delivered possession of the suit property in his f our legally and validly as per 'Kabja' receipt (Exhibit P-1) on 20-3-1978. There was nothing t or vitiating about it. He further contended that possession was handed over to him after recovering the cultivating charges of Rs. 122/- in cash. He denied that plaintiff continued to be in possession that plaintiff continued to be in possession of the suit land. He denied that he acted in collusion with the Tahsildar. Plaintiff had instituted original suit No. 33 of in favour of the plaintiff. He granted the 1973 on the suit land in favour of defendant was illegal. That suit was decided against him. The present suit was another attempt to put spokes, in the path of defendant from enjoying the suit land which he got under legal and valid grant. For these reasons, he urged that the suit be dismissed with costs.
4. The trial Court raised the following issues as arising from the pleadings in the suit.
(1) Whether the suit property is properly described in the plaint?
(2) Does plaintiff prove that he was in actual and lawful possession of the suit properly on the date of the institution of the suit
(3) Does plaintiff prove that the name of defendant herein in the revenue records pertaining to the suit property was entered by the revenue officials illegally and the same wag null and void ?
(4) Whether the reliefs in the suit are properly valued for the purpose of court fee and jurisdiction ?
(5) Whether the suit is barred by res judicata, as contended in Para 10 of the written statement ?
(6) Is plaintiff entitled for relief of declaration ?
(7) Is plaintiff entitled for relief of junction ?
(8) What order or decree?
5. The trial Court, appreciating the evidence on record answered Issues Nos. I to 3 in the affirmative. It held under Issue No. 4 that proper court-fees were paid. It further held under Issue No. 5 that the suit was not barred by the doctrine of res judicata and, in that view, the trial Court decreed the suit of the plaintiff as prayed for. The trial Court declared that the documents made on 20-3-1978, including the 'Kabja' receipt and the 'Panchanama' to witness the transaction of delivery of possession of the suit land to the defendant were void and it further granted order of permanent injunction against defendant as prayed for. Aggrieved by the said judgment and decree, defendant went up in appeal, as stated above, before the Civil Judge, Sirsi, in Regular Appeal No. 22 of 1982, on his file, and the learned Civil Judge, in the course of his judgment, raised the following point as arising for his consideration, from the arguments addressed before him, in the appeal:
'Whether the respondent/plaintiff is successful in proving that the revenue records dated 20-3-1978 are illegal and void and, as such, they are not binding on him?'
6. The learned Civil Judge, reassessing the evidence on record, agreed with the finding of the learned Munsiff and, in that view, he dismissed the appeal of the defendant, confirming -the judgment and decree of the trial Court. Aggrieved by the said judgment and decree, the defendant has instituted the above second appeal before this Court.
7. The learned Advocate appearing for the appellant strenuously urged before me that though relief is asked against defendant in the suit for permanent injunction, in effect, the suit was one for declaring that the action of the Tahsildar in taking possession and in handing over possession was illegal and void. It was a suit challenging the act done by a public servant ii, the course of his official duty and, as such, the suit could not have beer instituted unless the Tabsildar, a public servant, was made a party to the suit and unless notice under Section 80 of the Civil P. C. was first issued against him and necessary time was given to him before instituting the suit. Alternatively, he submitted that the procedure followed by the Tahsildar was quite legal and proper. There was nothing vitiating about it and, as such, he submitted that the Courts below were not justified in holding that the proceedings were vitiated. In that view, he submitted that the appeal was entitled to succeed.
8. As against that, the learned Advocate appearing for the respondent/plaintiff argued supporting the judgment and decree of the trial Court, confirmed by the first appellate Court.
9.The points, therefore, that arise for my consideration in this appeal are:
(1)Whether the suit should have been instituted both against the Tahsildar concerned as also against the present defendant since, in essence, the suit challenges the act of the Tahsildar purporting to be done in his official capacity, viz., in the matter of taking possession from the plaintiff an, A handing over possession to the present appellant/defendant
(2) If so, whether notice under Section 80 of the Civil P. C. was necessary before instituting the suit?
(3) Whether such a contention was not tenable in view of Order 1, Rule '1 3 of the Civil P. C. since such objection was not taken at t1he earliest stage, at any rate, before framing of the issues?
(4) Whether the Courts below were justified in holding that the procedure followed by the Tahsildar in taking possession and in handing over possession was vitiated and, as such, it was void
10. The facts narrated above would show that after the Divisional Commissioner confirmed the land grant in favour of defendant, in the present suit, the Tahsildar called upon the present plain tiff/respondent to deliver up possession in favour of defendant, who ultimately succeeded in the appeal and in whose favour the land grant was made finally. That was because earlier the land grant was made by the Tahsildar in favour of plaintiff and he had put him in possession. As stated above, plaintiff in the instant case went up in writ petition against the very notice calling upon him to deliver up possession in Writ Petition No. 6835 of 1977. That writ petition came to be dismissed by this Court holding that the notice issued to the plaintiff was not in effect, a notice required to be issued under S. 94 read with Section 39 of the Karnataka Land Revenue Act.
11. This Court, speaking through his Lordship K. S. Puttaswamy, J., observed in the said writ petition inter alia thus:
'......In my view, the notice issued by the Tahsildar is not really a notice under Section 94 of the Act and it is only a direction issued by the Tahsildar calling upon the petitioner to deliver possession in accordance with the previous proceedings before the Revenue Authorities and the Civil Courts to enable him to deliver possession of the land to respondent 3 who had succeeded in those proceedings. In my view, the Tahsildar inaptly issued a notice under Section 94 of the Act.
12. Thus, it is obvious that what all the Tahsildar did was to intimate the plaintiff who was put in possession as a result of the land grant made by the Tahsildar to restore possession after the order of the Tahsildar was set aside and defendant was granted the land. In such circumstances, the provisions of Section 94 or Section 39 of the Karnt. L. R. Act would not come into play and that is what his Lordship K. S. Puttaswamy, J., has observed. I respectfully agree with the opinion so expressed by his. Lordship.
13. The learned Advocate appearing for the respondent submitted that defendant did not call for the records from the office of the Tahsildar to show that the procedure followed by the Tahsildar was in accordance with law and that possession was taken from plaintiff and it was delivered over to defendant.
14. It may, at once, be stated that there is a presumption under the Evidence Act that all official acts done by the official are done in accordance with proper procedure. It is the plaintiff who has come to Court challenging such official act of the Tahsildar. It is the plaintiff who has come to Court challenging that the procedure follow ed by the Tahsildar was not in accordance with law; That being so, it is obvious that the burden is on the plaintiff to call for necessary records, making Tahsildar a party to the suit and show that the procedure followed by him is vitiated either because there was no notice or because he has violated fundamental principles of natural justice.
15. Strangely enough, however, the Courts below thought that the burden of proving was on defendant and not on plaintiff and they found fault with defendant for not calling for the records from the office of the Tahsildar. It is obviously an error in law and the view cannot be sustained.
16. The material placed on record would clearly establish that the Tahsildar issued notice twice to the present plaintiff - Once immediately after defendant became su6cessful even in second appeal before the Divisional Commissioner in getting the land. grant confirmed. That was on 2-8-1977. Thereafter, the present plaintiff challenged that notice in Writ Petition No. 6835 of 1977, as stated above, before this Court and this Court dismissed the said writ petition on 24-1-1978 and, thereafter, the Tahsildar issued another -notice on 8-3-1978 calling Upon the present -plaintiff to hand over possession. That notice was served on him on 10-3-1978. Thereafter, the present plaintiff applied for stay of that notice which came to be rejected on 20-3-1978 and subsequent to that since the present plaintiff did not co-operate -with the Tahsildar, the Tahsildar himself went to the spot, took delivery of the property in question and made it over to the present defendant as per Exhibit P-1 the 'Kabja' receipt dated 20-3-1978. All formalities have been complied with. A 'Panchanama' is also drawn, valuation of the standing crop has been made and the value has been deposited by the defendant. That being so, there is nothing illegal or irregular about handing over possession in favour of the present defendant in addition to the initial presumption arising under Illustration (e) to Section 114 of the Evidence Act. The facts on record would clearly establish that the procedure followed by the Tahsildar in delivering possession in favour of the defendant after he became successful in the land grant appeal, is perfectly legal and valid. It is really surprising that the Courts below have found fault with it, without pointing out any material defect or any vitiating factor in the procedure followed by the Tahsildar and even in the absence of the proceedings of the Tahsildar-before Court. Hence, I am constrained to hold that the finding of the Courts below, though concurrent, that the procedure followed by the Tahsildar was vitiated and hence void in the eye of law is unsustainable in law. It is, therefore, set aside and it is hereby held that the procedure followed by the. Tahsildar, as revealed by the materials placed on record, was perfectly legal and valid.
17. I would next proceed to consider the legal aspect urged before me by the learned Advocate appearing for the appellant. He invited my attention to the fact that though the suit is against defendant, in essence and in fact, it is a suit to get a declaration that the act done by the Tahsildar in the discharge of his public duties is illegal and void in the eye of law.
18. It is true that when an order passed by a Tribunal is challenged in appeal it is not necessary, normally, to make that authority a party to the appeal. But the present proceeding is not an appeal; It is a different proceeding in which the order is challenged and here mala fides are attributed to the Tahsildar saying that he was colluding with the defendant and that he did not even go to the spot and follow proper procedure. In such circumstances, when mala fides are attributed to the public officer and his action is challenged on that ground and further challenged as vitiated by illegality, it is obvious that an opportunity should be given to him to explain what he has done. It is a fundamental principle of law that no person should be condemned behind his back. 'Audi alteram partem' is a maxim in law. It is one of the -fundamental principles of natural justice. It is not possible for a Civil Court to hold that the action of the Tahsildar is mala fide and that it was in collusion with the defendant and that it was illegal and vitiated, without hearing the Tahsildar and that is what exactly the plaintiff wants the Court to do. He has not, for purposes best known to him, added the Tahsildar as a party. It may be, because he wanted to obviate notice under S. go of the Civil P. C. and the learned Advocate appearing for the respondent vehemently argued that even if the Tahsildar is a necessary party to the suit, such a contention cannot be raised at this stage because it should have been raised, as he submitted, at the earliest opportunity before the issues were framed. He relied strongly on Order 1, Rule 13 of the Civil P. C.
19. Order 1, Rule 13 of the Civil P. C. reads:
'Objections as to non-joinder or misjoinder:- All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.'
20. The Supreme Court had an occasion to consider as to what could be waived by a party, in the case, V4man Shriniwas Kini Y. Ratilal Bhagwandas, and Co., (AIR 1959 9C 689). His Lordship Justice J. L. Kapur, who delivered the judgment for the Bench, in para 13, has discussed this aspect at some length. Therein, his Lordship has observed thus :
'.... ... ... the plea of waiver cannot be raised because as a result of giving affect to that plea the Court would be enforcing an illegal agreement and thus contravene the statutory provisions of Section 15 based on public policy and produce the very result which the statute prohibits and makes illegal. In Surajmull Nagoremull v. Triton Insurance Co. , Lord Summer said:
'No Court can enforce as valid that which competent enactments have declared shall -not be valid, nor is obedience to such an enactment a thing from which a Court can be dispensed by the consent of the parties or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co., (1867) 2 Ex 338. The enactment is prohibitory. It is not confined to affording a party a protection of which he may avail himself or not as he pleases. It is not framed solely for the protection of the revenue and to be enforced solely at the instance of the revenue officials, nor is the prohibition limited to cases for which a penalty is exigible'.
In the instant case the question is not merely of waiver of statutory rights enacted for the benefit of an individual but whether the Court would aid the appellant in enforcing a term of the agreement which Section 15 of the Act declares to be illegal. By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision which cannot be condoned by any conduct or agreement of parties. Dhanukdhari Singh V. Nathima Sahu, (M7) 11 Cal WN 848 at page $52. In Corpus Juris Secundum Vol. 92 at page 1068 the law as to waiver is stated as follows :-
'... ... ... ... a waiver in derogation of a statutory right is not favoured, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals .. ... ... ...'
In 1945-1 KH 65 the same rule was laid down ... ... ... ...'
21. Therefore, it is obvious that no party has a right to waive something created under the statute which is made a part of public policy. If a right is created in favour of a party under a statute for his benefit, he has a right to waive it. In the instant case, as stated above, the real question at issue is: whether the act of the Tahsildar, a Public Officer, in the course of his official duty, viz.. in delivering possession in favour of defendant, on taking possession of the land from plaintiff, was in accordance with law or was it mala fide and collusive as contended by plaintiff.
22. Section 90 of The Civil P. C., which represents public policy, states that no, suit against' a public officer in respect of any act purporting to be done by such public officer in his official capacity can be instituted until the expiration of two months next after a notice in writing has been delivered to him and it is well established that a notice under Section 80 of the Civil P. C. is mandatory and the Court has no jurisdiction to take cognizance of the suit unless such a notice is issued and it is averred that such notice was issued, in the plaint itself.
23. Hence, the party, viz., the defendant in the instant case, has no right to waive such contention which represents a matter of public policy with regard to jurisdiction of the Court itself. Hence, it is obvious that O.I.R.
13 of the Civil P. C. cannot be called into play on the facts of the present case.
24. Even otherwise, High, Courts have hold, that 0- 1, R 13, of the Civil P. C. can not be attracted where a party to the suit is a necessary party. The reason is not far to seek. In the absence of a necessary party, no decree can be passed. A necessary Party is one in whose absence an operative order cannot be passed whereas a proper party is, merely one in whose absence an effective order or decree can be passed. He is only necessary far a complete decision of the question involved in the suit. (Vide: Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar : AIR1963SC786 .
25. It is held by a Full Bench decision by the High Court of Assam in the case, Chandra Mohan Saha v. Union of India AIR 1953 Assam 193 that O. I. R. 13 of the Civil P. C. has no application to a case where a necessary party to the suit not before the Court as no effective decree can be passed in the absence of such a party.
This decision has been followed by the High Court of Calcutta in the case, Basanta Pandey v. Sudhir Lall Seal (A I R 1953 Cal 360). In para 6 of the judgment, this is what the high Court has observed, inter alia :
'The other authority is Full Bench decision of the Assam High Court : Chandra Mohan Saha v. Union of India, A I R 1953 Assam 193 (FB), Where the law laid down is : Rule 13 (of O.I.) has no application to a case where a necessary party to the suit is not before the court and no effective decree can be made it absence of such a party. The suit in such cases is inherently defective and the point can be taken at any stage provided no new facts have to be alleged or proved.'
26. Thus, there is no substance in the submission that the contention with regard to non-joinder of necessary parties cannot be raised at this stage. The contention regarding non-joinder of necessary parties can be raised at any stage since the suit itself will be inherently defective and no adjudication can be made in the absence of necessary party. Order I, Rule 13 of the Civil P. C. has no application so far as necessary parties to a suit are concerned.
27. Fit the result, therefore, the appeal is allowed. The judgment and decrees of the Courts below are set aside and the suit of the plaintiff is hereby dismissed.
28. On the peculiar facts of the case, since questions of law are involved, I direct the parties to bear their respective costs throughout.
29. Appeal allowed.