BASUDEB BISWAL AND ORS. Vs. PADMANAV CHOUDHURY AND ORS.

JUDGEMENT

(1.) THIS is a petition filed by the Plaintiffs against an order of the learned Additional Subordinate Judge of Berhampur remanding their suit under Section 151 of the Code of Civil Procedure for a de novo trial. The Plaintiffs representing the villagers of village Laxmanapalli filed a suit impleading the Defendants, being some of the villagers of village Debabhumi, in their representative capacity. Their whole case was that certain lands were being used as grazing grounds by the villagers of Laxmanpalli from time immemorial through which an ancient water channel, also passed carrying water to their fields from a 'Rojo' for purposes of irrigation. The 'Rojo' is situated between two villages in survey No. 1660 in Debabhumi and runs through survey No. 1649. Their allegation was that the Defendants were converting the grazing grounds into arable land and were filling up the water -course. They are alleged to have dug a new channel beyond the aforesaid grazing ground and thus interfering with the Plaintiffs' right of pasturage and the right to take water through a defined channel for purposes of irrigation. The Plaintiffs, accordingly, prayed for a declaration that they had the right to take water through the defined channel from the reservoir in survey No. 1660 as also to use survey No. 1649 as the grazing ground. The third relief claimed was for a permanent injunction.

(2.) THE Defendants by their written statement denied the existence of any such channel or the grazing ground or any cart -tract or foot -path thereon. According to the Defendants the new channel was an ancient channel and the disputed lender were the private mango -tope of the Zamindar of Shergada who was the landlord of the village Debabhumi. The Zamindar had granted the said mango -tope to the deity Raghunath Swami who had acquired an occupancy right thereon. The water reservoir having been damaged, with the permission of the Zamindar the Defendant started to restore it to its former condition by dressing it up in Aswin 1951 which was alleged by the Plaintiffs to be the new channel. The trial court decreed the suit against the villagers of village Debabhumi but dismissed it as against Defendant No. 13, the State of Orissa, who was subsequently added as a party. The villagers -Defendants preferred an appeal against this decree impleading the 13th Defendant as a Respondent. In appeal the Government Pleader appearing on behalf of the State for the first time raised an objection that since no notice under Section 80 of the Code of Civil Procedure was served on the State, the suit was not maintainable against the State Government. This objection prevailed with the lower appellate Court. Without discussing the merits of the case, he set aside the decree passed by the learned Munsif on this preliminary ground and ordering the 13th Defendant to be expunged from the suit records for the time being. He, however, directed the Plaintiffs to add the State of Orissa as a party -Defendant after service of a notice under Section 80 of the Code of Civil Procedure. It is against this order that the present application is directed.

(3.) THE lower appellate court relying on a decision of the Madras High Court reported in, A.I.R. 1944 Mad 534 and two other Patna, decisions in, A.I.R. 1941 Pat 517 and : A.I.R. 1947 Pat 81, came to the conclusion that such a notice cannot be waived. He also referred to a decision of the Privy Council in : A.I.R. 1927 P.C. 176 to the effect that the Government being a necessary party even an injunction suit cannot proceed without a notice under Section 80. It appears that there was a conflict of opinion amongst the various High Courts in India regarding this question. The very Madras decision on which the learned Subordinate Judge had relied upon came up for consideration before the Judicial Committee reported in Vellayan Chettair and Ors. v. The Government of the Province of Madras, A.I.R. 1947 P.C. 1971. After considering the previous Madras decisions and the previous decisions of their Board including the decision in, AIR 1927 P.C. 76, Lord Simonds came to the conclusion that the notice under Section 80 is for the protection of the public authority concerned. If in a particular case he does not require that protection and says so, he can lawfully waive his right to the notice. What their Lordships actually held in that case was: