Full Judgment
Gurusharan Sharma, J.
1. Heard the parties and perused lower Court records and with their consent this appeal is disposed of under Order XLI, Rule 11 of the Code of Civil Procedure.
2. Plaintiffs filed Title Suit No. 3 of 1986 against defendants including State of Bihar through Collector, Gaya and Anchal Adhikari. Sherghati for declaration of title and for declaration that they were occupancy raiyats of the suit land and for permanent injunction restraining defendants from disturbing their peaceful possession.
3. According to plaintiffs, recorded tenant Bhago Yadav sold 1.25 acres raiyati land, bearing C.S. plot Nos. 510 and 520, detailed in Schedule 1 to the plaint to Bakhori Singh, the then landlord, by registered sale-deed dated 5-1-1939. The said land became bakast and came in cultivating possession of landlord and after vesting of Zamindari, ill the State of Bihar, under the provisions of Bihar Land Reforms Act, 1950, it again became raiyati land of said Bakhori Singh. By registered sale-deed dated 29-7-1963, Nago Yadav, father of plaintiffs I to 6 and husband of plaintiff No. 7 purchased it. In Revisional Survey Khatiyan, finally published in the year 1970, only one R.S. plot No. 1081 of 1.24 acres was carved out from those two C.S. Plots.
4. In a proceeding under the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 initiated against the landholder, Rama Devi, wife of late Badhori Singh. She donated/surrendered her surplus land, including the suit land, to the State of Bihar.
5. Trial Court dismissed the suit holding that sale-deed dated 29-7-1963 was not genuine and so plaintiffs did not acquire title over the suit land. They never came in possession, rather defendants 1 and 2 were in possession. No notice under Section 80 of the Code of Civil Procedure was served on the State of Bihar and the suit was also barred under Section 43 of the said Act.
6. Plaintiffs preferred Title Appeal No. 15 of 1988, which was disposed of by the impugned judgment. Trial Court's judgment and decree were set aside and plaint was directed to be returned to the plaintiffs for filing it afresh after due compliance of the provision of Section 80(1) of the Code of Civil Procedure, if so advised. The first appellate Court did not go into merit of the appeal and disposed it of holding that the suit was not maintainable for want of notice under Section 80 of the Code.
7. I find that summons of the suit were issued to both defendants 3 and 4. It was validly served on defendant No. 4 but summons for defendant No. 3 were returned for reissuance as time fixed for appearance had expired. But, thereafter summonses were not issued to the State of Bihar through Collector, but in the meantime on 2-4-1986, Government Pleader, Gaya filed a petition on behalf of State of Bihar asking for time to file written statement. It was allowed, but thereafter neither anybody ever appeared on behalf of defendant Nos. 3 and 4, nor filed any written statement, nor contested the suit. However, the contesting defendants 1 and 2 took the plea that suit was not maintainable for want of service of notice under Section 80 of the Code.
8. Counsel for the appellants submitted that defendants 3 and 4 appeared and asked for time to file written statement and thereafter, did not take any further step in the suit, and so by their non-appearance, it would be deemed that requirement of such notice under Section 80 of the Code of Civil Procedure was waived.
It is well settled that notice under Section 80 of the Code of Civil Procedure is by way of protection to the State as also to its Officers when suits are to be instituted against them and to give them an opportunity to reconsider their legal position and to make amendments or settled the claims if so advised, without litigation. It is equally well settled that even though provisions of Section 80 of the Code is mandatory, it is still open, to the State or the Office concerned, to waived their rights to notice.
9. In the present, suit on behalf of State of Bihar and its officers, namely, defendants 3 and 4, the Government Pleader appeared on 2-4-1986 and filed petition for time to file written statement and thereafter either filed any written statement nor contested the suit. Accordingly, the suit proceeded and was decided as against them under Order VIII. Rule 10 of the Code of Civil Procedure. Those defendants 3 and 4 also did not prefer any appeal. In my opinion, non-contest of suit by defendants 3 and 4 amounts to waiver of their right to notice under Section 80 of the Code of Civil Procedure. It is not for a third party to insist that notice under Section 80 of the Code be given to the State or its officers. In the present case it was not known whether the State would give up its right to notice and whether its officers could also do so or act otherwise. Defendants 1 and 2 cannot be deemed to have the right to raise the absence of notice under Section 80 of the Code as a ground for holding that suit was not maintainable on the score.
10. In my opinion, the first appellate Court, in the aforesaid facts and circumstances of the case, erred in disposing of the appeal only on the ground that suit was not maintainable for want of notice under Section 80 of the Code, The appeal was required to be decided on merit and in accordance with law. I, therefore, set aside the impugned judgment and remit the matter to the first appellate Court to hear the parties and decided the appeal afresh on merit,
11. Parties herein are directed to appear before the Court concerned on 11-10-1999, on which date a firm date in their presence shall be fixed for hearing of the appeal.
12. Lower Court records may be sent down by a special Messenger at the cost deposited by the appellants within one week.
This appeal is, accordingly, disposed of.