- (1.) We have heard the counsel for the both the parties as well as the Government Advocate.
(2.) It was urged on behalf of the appellants that the observation of the learned Revenue Appellate Authority to the effect that a prior notice under sec. 80 of the Civil Procedure Code was indispensable and that the suit therefore suffered from this defect, was not warranted by law.
(3.) This point had been initially raised on behalf of the respondents before the learned Revenue Appellate Authority and it was pointed out that to every suit for the division of holdings under sec. 53 of the Rajasthan Tenancy Act all the co -tenants and the land holders shall be made parties. Accordingly in the present case the Government as the landholder was a necessary party and the manner of giving notice to the Government, it was argued, had been laid in sec. 80 of the Civil Procedure Code and if the provisions of sec. 80 C.P.C. were not followed it would vitiate the trial and would be fatal to the case. The learned counsel for the respondents reiterated this plea before us and cited AIR 1943 Madras 284, Province of Madras, represented by District. Collector, Vizagapatam Vs. Shri Sri Sri Vikrama Deo Varma Maharajulungaru, Maharaja of Jeypore and Zamindar of Madgole in which it was observed that: "If in fact notice had to be given as required by sec. 80 of the Code, and if notice was not given in accordance with the provisions of that section the Court had no jurisdiction to entertain the suit as against the provincial Government. It is true that the lower Court has found that notice was not necessary under sec. 80 and that even if it was necessary, notice was in fact given in accordance with the provisions of that section. The question however in my opinion does not cease to be a question of jurisdiction merely because the lower Court had decided wrongly questions which it decided rightly would have left it without jurisdiction to entertain the suits. In my judgment, therefore, the petitions are maintainable." It was further observed therein that "the provisions of sec. 80 are "express, explicit and mandatory" and in my opinion, there are no grounds for holding that in these suits brought under sec. 14, Madras Survey and Boundaries Act, to which the plaintiff chose to make the Provincial Govt. a party two month notice as required by s. 80, Civil P.C., was not necessary in order that the suit should be maintained against the Provincial Government. It should be observed that although the lower Court has proceeded on the footing that the Govt. was not a necessary party the Govt. itself has not conceded this position." ;