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1964 DIGILAW 98 (RAJ)

Kesa v. Dana

1964-05-14

BALWANT SINGH, G.B.K.HOOJA

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This second appeal has been filed against the order of the Revenue Appellate Authority, Bikaner dated the 16th October, 1962, whereby he rejected the appeal of Kesa and other appellants filed against the judgment and decree dated the 31st July, 1961 of Sub-Divisional Officer, Mount Abu. dismissing the plaintiffs suit in respect of the well known as Nimbava in village Pindwara. We have heard the counsel for the both the parties as well as the Government Advocate. 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. 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. 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." Our attention was also drawn to R.R.D. 1961 page 121, Partalal Vs. Gheesa in which a D.B. of this Board had held that "the State Government as land-holder was a necessary party as the provision in the enactment to this effect was mandatory." The learned counsel for the appellants did not contest the mandatory provision of law and agreed that the State Government was a necessary party to the proceedings in respect of division of holdings under sec. 53 of the Rajasthan Tenancy Act. He, however, contested the plea of the counsel for the respondents that the notice contemplated to be given to the State Government was to be given under Sec. 80 of the C.P.C. which as the bare reading of the Section would show related to suits instituted against the Government or against the public official in respect of any act purporting to be done by such public official in his official capacity. The object of the notice contemplated under Sec. 80 of the C.P.C. was to afford the defendant an opportunity to reconsider his claim with regard to the claim made, and to make amends or settle the claim, if so advised, without recourse to the trouble and cost of litigation. The object of the notice contemplated under Sec. 80 of the C.P.C. was to afford the defendant an opportunity to reconsider his claim with regard to the claim made, and to make amends or settle the claim, if so advised, without recourse to the trouble and cost of litigation. It was for this purpose that the terms of the Section had been made imperative and admitted of no exception or implication and a suit not complying with these provisions could not be entertained by any Court and if instituted must be rejected. It was argued by him that the purpose of the notice under sec. 53 of the Rajasthan Tenancy Act was different. It had been stated in Sub-Sec. (1) of Sec. 53 that no holding shall be divided so as to result in holding of less area than the minimum prescribed by the State Government for each district or part of a district. It was with a view to guarding against this contingency that it had been laid down that the State Government shall be a necessary party as the land holder in suits under this Section. It was pointed out that the provisions of law had been completely fulfilled in the present case, as a notice had been duly issued to the State Government as the proceedings of 13.8.57 would show and the same had been duly served on 16.7.58. This position was conceded by the Government Advocate also. We have, therefore, no hesitation in holding that the reliance placed by the learned Revenue Appellate Authority on Sec. 80 of the C.P.C. for rejecting the appeal stemmed from an erroneous appreciation of the legal position and that the suit should not have been dismissed on this ground. It is true that a reference was made by the lower appellate Court to the merits of the case also. It was observed that since the plaintiff Dalla had admitted the defendants cultivatory possession for over 25 years the plaintiffs suit also fails on merits. It is obvious that this is a mere general expression of concurrence with the trial Courts judgment without giving any reasons and it is not a sufficient judgment under the law. It was observed that since the plaintiff Dalla had admitted the defendants cultivatory possession for over 25 years the plaintiffs suit also fails on merits. It is obvious that this is a mere general expression of concurrence with the trial Courts judgment without giving any reasons and it is not a sufficient judgment under the law. It has been laid down that even when affirming the decision of the Court below, the appellate Court which is the final Court of facts which arise for adjudication and the bearing of the evidence on this point. In this connection our attention was drawn to Mawasi vs. Balwant R.R.D. 1964 page 139 to which one of us was a party. It was held therein that it was the duty of the learned Revenue Appellate Authority to have stated some reasons when affirming the findings of the trial Court and the mere expression that he was in complete agreement with the findings of the lower Court vitiated the entire judgment. We are constrained to hold that the impugned judgment suffers from the same defect and does not fulfil the provisions of law laid down in O. 41, R. 31. In the result we accept the appeal and remand the case with the direction that the appeal may be reheard by the lower appellate Court and decided in accordance with law and the observations made above.