- (1.) THIS judgment will dispose of Letters Patent Appeals Nos. 594 to 596 of 1970, arising out of Regular Second Appeals Nos. 1632, 1633 and 1238 of 1968 respectively in which a learned Single Judge of this Court affirmed the decision o the lower appellate Court which in turn set aside the decision of the trial Court decreeing the plaintiff's suit. The learned Additional District Judge merely proceeded to dismiss the suit on the ground that there was no notice under Section 80 of the Code of Civil Procedure served on the State.
(2.) THE facts material to determine the controversy in this case may now be stated : The appellants were the plaintiffs in the suit which has given rise to these appeals. Their claim in the suit was that Khasra No. 1591 forms part of the area of Mandi Dadri. It is owned and possessed by the owners of the Mandi. It has been in their possession ever since the Mandi came into existence. The owners of the Mandi opened a school for the education of the children and provided a playground as also some buildings which are all located in this Khasra number for the common purposes of the population of the town. The suit was necessitated because the defendants had started obstructing the owners of the Mandi in the use of this piece of land. One of the defendants had obtained sanction from the Municipal committee for construction of a house and a shop on this piece of land and wanted to forcibly build thereon, and for that purpose they had collected some rori, that is, shingle, and placed some drums on a portion of the disputed plot. This causes obstruction to the use of the plot by the owners of the Mandi. An alternative case was also pleaded that if the plaintiffs were not the owners of the disputed plot, they and the other members of the public had been continuously using it as a public way over a period of more than twenty years for going to their respective houses and enjoying other facilities available to them by way of a well and a tank. The obstruction by the defendants had resulted in special damage to the plaintiffs and other owners of the Mandi. The litigation has gone through a fairly tortuous course by now. The suit was, however, decreed by the trial Court on 12th of July 1960. An appeal was filed by respondents 1 and 2 against the trial Court's decree, which was accepted by the learned District Judge, Rohtak, by his judgment dated the 14th of June 1962. The learned District Judge had found that the plaintiffs were not the owners of Khasra No. 1591, and that respondent No. 1 had made encroachment on the land in dispute which belonged to the Government. the plaintiffs were dissatisfied with that judgment and preferred a regular second appeal to this Court. That appeal was allowed by Shamsher Bahadur, J. The judgment of the learned Judge is very pertinent and requires to be quoted in extenso. It may be mentioned that the learned Judge dealt with two other appeals also. While disposing of all the three appeals, the learned Judge observed "this case, in my opinion, is eminently fit for the Government to be made a party. The State Government, in my view, is a necessary party and not merely a proper party. It was the duty of the lower appellate Court to have acceded to the request of the Municipal Committee to add the State Government as a party. As far as the other two appals are concerned, it appears that though no point was taken in the trial Court, an application was made before the learned District Judge that the Government should be made a party. This application, no doubt, was resisted by the plaintiffs but it seems to me that in order to decide the case property the Government should be made a party. The nature of the original acquisition and the manner in which the Mandi fund had been created under the aegis and the authority of the Government make it clear that the Government was not merely a formal out a necessary party in these proceedings. The findings of the lower appellate Court that the Government had acquiesced in the encroachment makes it all the more imperative that the Government should be impleaded a party and its position correctly ascertained. " In consequence, the learned Judge remanded the plaintiffs' appeal permitting the plaintiffs to file an amended plant. The plaintiff thereupon filed their amended plaint in the trial Court on the 11th of February 1963, impleading the State of Punjab as defendant No. 3. Written statement by defendants 2 and 3 was filed on 20th of May 1963. No objection was raised by defendant No. 3 that the suit was incompetent for want of a valid notice under Section 80 of the Code of Civil Procedure. But this objection was specifically taken by defendant No. 2. The appellants were allowed to file replication to the written statement. This they did on 12th of June 1963. It was clearly stated in the replication that notice had been served on the Government on 25th January 1963. Obviously the notice was not valid, because the suit had been filed before the period of two months had expired from the date of notice. In spite of this patent fact no issue was claimed by the Government. In spite of this patent fact no issue was claimed by the Government. Issue No. 1, which dealt with the validity of notice, was framed at the instance of defendant No. 2. There were other issues framed in the case with which we are not concerned at the moment. The trial Court held that the Government had waived the notice. The other issues were decided some in favour of the plaintiffs and the others in favour of the defendants. The ultimate result was that the plaintiffs' suit was decreed. The three defendants then preferred three separate appeals in the Court of the District Judge. The learned Additional District Judge only determined issue No. 1 in the appeals and came to the conclusion that there was no legal notice and, therefore, the suit was liable to fail. He accordingly allowed the appeals, set aside the judgment and decree of the trial Court and dismissed the suit. The plaintiffs then preferred three second appeals against each of the three defendants in this Court. Those appeals came up for hearing before a learned Single Judge, who affirmed the decision of the lower appellate Court holding that there was no waiver of Section 80 notice. On a certificate having been granted by the learned Single Judge under CLAUSE 10 of the Letters Patent, the present three appeals have been preferred by the plaintiffs.
(3.) WE proceed to determine these appeals on the clear basis that there was no valid notice under Section 80 of the Code of Civil Procedure. This basis is not controverted by the learned counsel for the appellants. The only contention raised by him is that on the admitted and proved facts on the record there is a waiver. Therefore, we will have to determine or ascertain what are the proved facts. We proceed to enumerate them seriatim (1) In the amended plaint there was no mention that any notice under Section 80 of the Code of Civil Procedure had been served on the Government. (2) (3) Defendant No. 2 took the plea that the suit should be dismissed for want of a valid notice. (4) (5) The plea as to the validity of notice was not taken by defendant No. 3. (6) (7) In the replication filed by the plaintiffs a specific plea was taken that a notice had been served on the Government. (8) (9) From the averments in the replication it was plain that the notice was invalid because the period of two months commencing from the date of service of the notice to the date of the filing of the suit ad not been expired. (10) (11) At the time when the issues were framed, there was no statement by the counsel for the State that he was claiming issue No. 1. In fact issue No. 1 was framed at the instance of defendant No. 2. (12) (13) During the course of the trial, no objection was raised by the learned counsel for the State inasmuch as he did not even address any arguments on issue No. 1. (14) (15) No prayer was made for the amendment of the written statement by the counsel for the State so as to raise the plea of invalidity of notice. (16) These are the admitted and proved facts and, therefore, on these facts the question that arises is whether there is waiver.;