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ishtiyaq HusaIn Abbas HusaIn Vs. Zafrul Islam Afzal HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4234 of 1959
Judge
Reported inAIR1969All161
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80
Appellantishtiyaq HusaIn Abbas Husain
RespondentZafrul Islam Afzal HusaIn and ors.
Appellant AdvocateN. Kumar, Adv.
Respondent AdvocateM.H. Beg and ;Majeeduddin, Advs.
DispositionAppeal dismissed
Excerpt:
property - owner in possession - section 80 of code of civil procedure, 1908 - suit for ownership and possession filed - decreed in favour of plaintiff - state government too made a pro forma party - no notice under section 80 served - state government not appeared in the matter - deemed to have waived his right to notice. - - --it is well settled and is conceded that the party in whose favour the section prescribes notice to be given can waive his right to notice .in the first place defendant 3 is not the proper party to raise it, and in the second place the receivers in our opinion must be deemed to have waived their right to notice......amrcha, district moradabad.2. the plaintiff's case was that he was the owner in possession of the house in suit of which defendant no. 2 was a tenant. one mukhtar ahmad pradhan of the gaon samaj instituted proceedings under rule 115d of the u. p. zamindari abolition and land reforms act, claiming that the gaon samaj was the owner of the house in dispute. it was alleged, further, that neither defendant no. 2 nor defendant no. 4 was the owner of the house and that the sale-deed alleged to have been executed by chhidda in favour of defendant no. 4 conferred no title upon him. in the proceedings under rule 115-d of the u. p. zamindari abolition and land reforms act the plaintiff was directed to file a regular suit and hence he filed the suit out of which this appeal has arisen. the state.....
Judgment:

S.K. Verma, J.

1. This is a defendant's second appeal arising out of a suit filed by the plaintiff-respondent for a declaration that the plaintiff is the owner in possession of the house described at the foot of the plaint, situate in village Sahaspur Ali Nagar, Pargana Amrcha, district Moradabad.

2. The plaintiff's case was that he was the owner in possession of the house in suit of which defendant No. 2 was a tenant. One Mukhtar Ahmad Pradhan of the Gaon Samaj instituted proceedings under Rule 115D of the U. P. Zamindari Abolition and Land Reforms Act, claiming that the Gaon Samaj was the owner of the house in dispute. It was alleged, further, that neither defendant No. 2 nor defendant No. 4 was the owner of the house and that the sale-deed alleged to have been executed by Chhidda in favour of defendant No. 4 conferred no title upon him. In the proceedings under rule 115-D of the U. P. Zamindari Abolition and Land Reforms Act the plaintiff was directed to file a regular suit and hence he filed the suit out of which this appeal has arisen. The State Government was made a pro forma defendant and it did not put in appearance. The Gaon Samaj filed a written statement but thereafter took no further interest in the litigation. Defendant No. 2 did not put in appearance. The suit was contested only by the appellant, Ishtiyaq Husain. He pleaded that the plaintiff was not the owner of the house and that the answering defendant had purchased the house by a registered sale-deed dated the 3rd of September 1956 from Chhidda who was the real owner of the house. The bar of Section 42 of the Specific Relief Act was also pleaded.

3. The learned Munsif framed three issues:--

(1) Whether the plaintiff is the owner of the house in suit as alleged?

(2) Whether the plaintiff is in possession of the house in suit? If not, its effect?

(3) To what relief, if any, is the plaintiff entitled?

He decided the first two issues in plaintiff's favour, namely that he was the owner in possession of the house in dispute. The suit was, however, dismissed by him on the technical ground that the notice under Section 80 of the Code of Civil Procedure had not been proved. Curiously enough, the learned Munsif decided this point under the third issuewhich related only to relief. There was no specific issue on this point. The plaintiff filed an appeal which was allowed by the learned Civil Judge of Moradabad and the suit was decreed The learned counsel for the appellant has tried to impugn the decree of the lower appellate Court on the ground of want of notice as the result of absence of its proof. It appears to me that the plea of want of notice is open only to the Government and the Officers mentioned in Section 80 and it is not open to a private individual. In this particular case the State Government did not even put in appearance. The notice, therefore, must be deemed to have been waived by it. In Dhian Singh Sobha Singh v. Union of India : [1958]1SCR781 their Lordships observed as follows:--

'It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants' claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under Section 80 had been waived.'

In Hirachand Himatlal v. Kashinath Thakurji : AIR1942Bom339 a Division Bench of the Bombay High Court said this:--

'It is well settled and is conceded that the party in whose favour the section prescribes notice to be given can waive his right to notice .....

In the first place defendant 3 is not the proper party to raise it, and in the second place the receivers in our opinion must be deemed to have waived their right to notice. It is open to the party protected by Section 80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so, it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it.'

In Raghubans Sahai v. Ful Kumari, (1905) ILR 32 Cal 1130 a Division Bench of the Calcutta High Court observed as follows:--

'In the case before me, the Secretary of State was joined as a party; the only objection is that the notice required by Section 424 (present Section 80) of the Civil Procedure Code, was not served upon him two months before the institution of the suit. This objection in my opinion ought not to prevail for two reasons. In the first place, this objection can be taken only by the Secretary of State for whose benefit the notice is intended; but although the objection was taken on his behalf in the court of first instance and was overruled, the objection has not beenpressed by him in this Court; indeed, although the point was decided against the Secretary of State by the first court, no appeal was preferred by him, and though he was a party respondent to this appeal, he has not chosen to enter appearance.'

4. In the case before me, as I havesaid above, the State of Uttar Pradeshdid not even put in appearance in thetrial court and it must be deemed tohave waived any objection with regardto notice. In my opinion, it is not opento the appellant to raise this plea. Thedecree of the lower appellate court isperfectly correct and it must be upheld.This appeal is, therefore, dismissed withcosts throughout.


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