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Gaja and ors. Vs. Dasa Koeri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 723 to 725 of 1962
Judge
Reported inAIR1964All471
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80
AppellantGaja and ors.
RespondentDasa Koeri and ors.
Appellant AdvocateS.K. Verma, Adv.
Respondent AdvocateJ.N. Tewari, Adv.
DispositionAppeal dismissed
Excerpt:
.....of notice - section 80 of code of civil procedure, 1908 - no notice was issued to the party by the state government - held, the authorities can waive off the requirement of issuing notice and does not effect the maintainability of the suit. - - had not been given to the state government which is a necessary party to the suits as provided by section 229-b of act 1 of 1951. on this question the trial court was of the view that the suits were bad for want of notice but the lower appellate court held that the state government, by not contesting the suits, waived its objection as to their maintainability, and want of notice could not therefore entail their dismissal. 5. the object of a notice under section 80 is well, recognised. the section is thus intended to grant to such authorities a..........relief of possession may also be awarded to him in case he was found to be out of possession. the state government and the gaon samaj, impleaded as defendants, remained absent and the suits were contested only by the other defendants, who denied the claim of the plaintiff and asserted that they were bhumidhars of the plots and were in possession as such. the suits were dismissed by the trial court and since the issue relating to bhumidhari rights, claimed by the contesting defendants, had been remitted to and decided by the civil court, appeals were preferred to the civil judge who reversed the judgment of the trial court and decreed the suits. the contesting defendants have come up in appeal to this court.3. it is unnecessary to narrate in any detail the facts of the case and it is.....
Judgment:

Gangeshwar Prasad, J.

1. These three second appeals arise out of three suits between the same parties and involve the same questions of fact and law and they may, therefore, be disposed of by common judgment.

2. The suits were filed in the revenue court for declaration that the plaintiff is the exclusive sirdar of one of the disputed plots and a co-sirdar of the remaining three. The plaintiff claimed to be in possession but he prayed that the relief of possession may also be awarded to him in case he was found to be out of possession. The State Government and the Gaon Samaj, impleaded as defendants, remained absent and the suits were contested only by the other defendants, who denied the claim of the plaintiff and asserted that they were bhumidhars of the plots and were in possession as such. The suits were dismissed by the trial court and since the issue relating to bhumidhari rights, claimed by the contesting defendants, had been remitted to and decided by the Civil Court, appeals were preferred to the Civil Judge who reversed the judgment of the trial court and decreed the suits. The contesting defendants have come up in appeal to this Court.

3. It is unnecessary to narrate In any detail the facts of the case and it is quite enough to mention briefly the findings recorded by the learned Civil Judge. He has found that the plots of which the plaintiff claims to be a co-sirdar had been let out to the plaintiff and Gaja defendant jointly by the fixed rate tenants thereof before the enforcement of Act I of 1951 and that since both of them had continued in possession as sub-tenants they acquired adhivasi rights and later became sirdars under the provisions of the said Act. He has further found that the plot of which the plaintiff claims to be the sole sirdar was let out to him by Gaja defendant and that the plaintiff had acquired rights of a sirdar on that account and also on account of having been in cultivatory possession in 1359 Fasli. It was not disputed before me by the learned counsel for the appellants that on the facts found established by the learned Civil Judge the conclusions reached by him regarding the title of the plaintiff were correct. The findings of the fact themselves were certainly sought to be challenged but they were not shown to be vitiated by any error which may constitute an error of law and as such they must be accepted in second appeal.

4. The argument in these appeals really centred round the question whether the suits were liable to be dismissed on account of the fact that admittedly notice under Section 80 C. P. C. had not been given to the State Government which is a necessary party to the suits as provided by Section 229-B of Act 1 of 1951. On this question the trial court was of the view that the suits were bad for want of notice but the lower appellate court held that the State Government, by not contesting the suits, waived its objection as to their maintainability, and want of notice could not therefore entail their dismissal. It was contended by the learned counsel for the appellants that the lower appellate court was in error in holding that the bar of the mandatory provisions of Section 80 C. P. C. could be waived and that at any rate waiver of the objection as to want of notice could not be inferred in the circumstances of these cases. In my opinion both these contentions are unsustainable.

5. The object of a notice under Section 80 is well, recognised. It is to acquaint the authorities mentioned in the section of the facts and circumstances which are said to necessitate the institution of the threatened suit and to afford them an opportunity to take stock of the situation and avoid litigation, if so advised, by settling the claim or making amends. The section is thus intended to grant to such authorities a special protection for their own benefit of which, if they so choose, they may avail It is also well established, and on the basis of this accepted purpose of Section 80, that the objection to the entertain ability of a suit for want of notice may be waived by the authorities concerned. It is sometimes assumed as indeed was done by the learned counsel for the appellants in the course of his arguments, that the imperative nature of the, requirement of Section 80 precludes the possibility of waiver and effect to the bar created by it must be given whether, or not any objection is taken in that behalf. The assumption is erroneous and its erroneousness was clearly pointed out by the Privy Council in the case of Vellayan Chettiar v. Government of the Province of Madras AIR 1947 PC 197 in the following emphatic words :-

'There is no inconsistency between the propositions' that the provisions of the section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided.'

6. Whether or not in the particular circumstances of a case there has been a waiver is however a different matter. In the instant cases there was no contest on behalf of the State Government and even in the appeals before me the State Government, although made party to the appeals, has not put in appearance to challenge the correctness of the decrees on the ground of want of notice. It was urged on behalf of the appellants that a waiver on the part of the State Government might have been inferred if it had put in appearance and filed a, written statement without taking any objection regarding, want of notice, but since the State Government filed no written statement at all such an inference is not possible. This distinction does not appear to me to be founded, on any sound basis. If the State Government could be said to have waived its objection regarding want of notice by not taking a plea to that effect in a written states merit filed by it, it can in my opinion be said with equal reason that the State Government waived it by filing no written statement at all.

7. Closely linked with the question of waiver is the question whether the bar of Section 80 can be pleaded by a party other than those to whom notice is required to be given. The answer to the latter question follows, in my opinion, as a corollary from the answer to the former. If notice can be and has been waived by the authority concerned the natural conclusion appears to be that it is not open to any other party to the suit to urge want of notice against the maintainability of the suit. In Rup Lal Agarwala v. Dhansar Coal Co., Air 1933 Pat 49, it was observed that: 'A third party is not competent to raise the question of notice when the Secretary of State has waived it.' In Hira Chand Himat Lal v. Kashianath Thakurji : AIR1942Bom339 , it was similarly observed that : 'A party who has himself no right to notice cannot challenge a suit on the ground of want of notice.'

I may also refer to the case of Venkataswami v. Mahalakshmi AIR 1949 Mad 747, which dealt with Section 49 of the Madras Court of Wards Act requiring two month's notice for the institution of a suit against the Court of Wards. It was held there that : 'The plea as regards the want of statutory notice is only available to the Court of Wards which is entitled to such notice and not to the other defendants after the Court of Wards itself waived the objection and further that such waiver on the part of the person principally concerned affects the other parties as well.' If the authority for whose benefit Section 80 has been enacted does not claim the benefit It is not for other persons to press into service the provisions of that section for defeating a suit. This result, as I have said above, follows from the position that the objection as to notice is capable of being waived.

8. On a consideration of the circumstances of the case and the authorities bearing on the point 1 am of the view that the bar of Section 80, C. P. C. had been waived by the State Government and that the plea of the appellants as to this bar could not be entertained.

9. In the result the appeals fail and they are accordingly dismissed with costs.


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