JUDGMENT : Das, J. - This is a petition filed by the Plaintiffs against an order of the learned Additional Subordinate Judge of Berhampur remanding their suit u/s 151 of the CPC 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 lander 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 reservor 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. 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 u/s 80 of the CPC 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 u/s 80 of the Code of Civil Procedure. It is against this order that the present application is directed. 3. Mr. H.G. Panda, learned Counsel for the Petitioners contended that no objection having been taken by the State Government regard in, the issue of a notice u/s 80, it must be taken that the objection has been waived by the Government In order to appreciate the point raised by Mr. Panda more fully, it would be necessary to state the facts in a little more detail. Admittedly the stands on survey No. 1660 and the tope on survey No. 1649 through which a permanent artificial channel passes. This belonged to the Zamindari of Shergada which is now vested in the State Government by operation of law. The suit (T.S. No. 10 of 1953) was filed in January, 1952. The Zamindar of Shergada was not made a party to this suit. The villagers of Debabhumi in their representative character were sued and they filed a written statement on March 10, 1952. During the pendency of the suit the estate of the intermediary that is the Zamindari of Shergada was vested in the State of Orissa on June 1, 1953. After the vesting, the Plaintiffs filed an application to add the State Government as a party Defendant on January 6, 1954. Notice of this application was given to the proposed Defendant on February 5, 1954. After the vesting, the Plaintiffs filed an application to add the State Government as a party Defendant on January 6, 1954. Notice of this application was given to the proposed Defendant on February 5, 1954. Eventually the State Government was made a party on March 12, 1954, and a written statement on their behalf was filed on August 13, 1954. It may be mentioned here that at no point of time any objection was made by the Government for being added as a party-Defendant and no objection on the score of Section 80 was taken in the written statement. Accordingly, no issue was joined. It is only for the first time before the appellate court that the learned Government Pleader on behalf of the Respondent railed the question, which, as I have stated earlier, prevailed with the Court of appeal below. Therefore, the said question that falls to be considered hi this case is whether the State Government by its action, had waived the right to notice u/s 80 of the Code of Civil Procedure. 4. The lower appellate court relying on a decision of the Madras High Court reported in AIR 1944 Mad 534 and two other Patna, decisions in AIR 1941 Pat 517 and Secretary of State Vs. Sagarmal Marwari and Another came to the conclusion that such a notice cannot be waived. He also referred to a decision of the Privy Council in AIR 1927 176 (Privy Council) to the effect that the Government being a necessary party even an injunction suit cannot proceed without a notice u/s 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 AIR 1947 P.C. 197 1. 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 u/s 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. 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: On the other hand, there appears to their Lordships to be no reason why the notice required to be given u/s 80 should not be waived if the authority concerned thinks fit to waive it. If in the particular case he does not require that protection and says so, he can lawfully waive his right. In the particular case, however, on the facts their Lordships of the Privy Council found that there was no waiver. 5. The learned Standing Counsel on behalf of the Government contended that if the Government would have been substituted by an order of the Court in place of the ex-intermediary, then there would not have been any necessity for a notice u/s 80, but since the Government was added for the first time by an application on behalf of the Plaintiffs, Section 80 notice was imperative. In the Case of Bhagchand Dagdusa v. The Secretary of State for India 54 A.I. 338 it has been held that a notice u/s 80, Code of Civil Procedure, is express, explicit and mandatory and admits of no implication or exception. What Section 80 really contemplates is that no suit shall be instituted against the State or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been given. There is no controversy as to the issuance of a notice before the filing of a suit if the State or the Public Officer is impleaded as a party-Defendant. The simple question in this case is whether by the conduct of the public officer, the right purported to have been given u/s 80 could be waived or in the circumstances had been waived. Cases may arise where an objection in the written statement regarding the sufficiency of a notice u/s 80, Code of Civil Procedure, and consequently the maintainability of the suit might be raised but no issue was joined on behalf of the State or the public officer at the trial. Cases may arise where an objection in the written statement regarding the sufficiency of a notice u/s 80, Code of Civil Procedure, and consequently the maintainability of the suit might be raised but no issue was joined on behalf of the State or the public officer at the trial. Could the Defendant, besides the State, take up the objection regarding the legality or validity of such a notice at a subsequent stage of the trial? The question has been answered in the case of Bholanath Ray and Ors. v. The Secretary of State in Council and Ors. 17 G.W.N. 64. Mookerjee and Beachcroft JJ. held that where the Secretary of State in 'his written' statement objected to the legality, validity and sufficiency of a notice u/s 80, but no issue on the point was raised at his instance when the issues in the case were originally settled, it could not be raised at a later stage by another Defendant. It was further held that: It is competent to the Secretary of State to waive the notice, and he may be estopped by his conduct from pleading the want of notice at a late stage of the trial. In the events which have happened, we are clearly of opinion that in this case notice was waived on behalf of the Secretary of State and the question could not have been raised by the second Defendant. 6. It the case of Charuchandra v. Snigdendhu Prasad and Ors. AIR 1948 Gal. 150 the question arose whether the want of notice must be deemed to have been waived by the Government when the plea is taken for the first time in appeal. The facts in that case appear to be similar to the present case. In that case no objection was taken at the trial that the suit was not maintainable in the absence of a notice u/s 80. No issue was joined on that score. The suit proceeded to trial and was decreed in part. It was at the appellate stage that the point was raised for the first time by the 1st Defendant. The question naturally arose as to whether the lower appellate court was entitled to dismiss the suit on this ground which was taken for the first time before it. The suit proceeded to trial and was decreed in part. It was at the appellate stage that the point was raised for the first time by the 1st Defendant. The question naturally arose as to whether the lower appellate court was entitled to dismiss the suit on this ground which was taken for the first time before it. The learned Judge of the Calcutta High Court relying on a previous Division Bench decision of that Court in Purana Chandra v. Radharani Dasya 35 G.L.J. 31 held that when an objection that a suit is not maintainable in the absence of a notice u/s 80, is not railed in the trial court and no issue is joined on this point and the suit is decreed the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate court is not entitled to dismiss the suit on the ground of absence of notice u/s 80. While coming to this conclusion a decision of the Patna High Court in Ramnarain Prasad Vs. Ram Kishun Prasad, was followed and the decision in Secretary of State Vs. Sagarmal Marwari and Another Government of Province of Madras Vs. Al. Ar. Rm. Vellayan Chettiar and Others, were distinguished. This case appears to be on all fours with the present case. I may however, mention that the decision in AIR 1947 P.C. 197 , which set the controversy at rest was subsequently followed by the High Courts of Allahabad, Madras and Patna; Vide The District Board, Banaras Vs. Churhu Rai and Another, ; Province of Bihar Vs. Kamakshya Narain Singh, and Lakshmi Narayan Gauri Shankar Vs. Union of India (UOI), . 7. Thus, in this view of the law I am inclined to think that the learned Additional Subordinate Judge is clearly wrong in allowing the objection to be raised for the first time at the appellate stage and remanding, the suit for a de novo trial after expunging the Government of Orissa from the category of Defendants. I would, accordingly, set aside the order of the learned Additional Subordinate Judge, Berhampur, dated 27-10-1956, allow this application with costs and direct the learned Subordinate Judge to hear the appeal on merits and dispose it of in accordance with law. 8. I would, accordingly, set aside the order of the learned Additional Subordinate Judge, Berhampur, dated 27-10-1956, allow this application with costs and direct the learned Subordinate Judge to hear the appeal on merits and dispose it of in accordance with law. 8. In the result, the rule is made absolute, and the east will be borne by the State Hearing fee Rs. 48/- (Fourty-eight). Application allowed. Final Result : Allowed