JUDGMENT A.K. Sharma, Member. - Smt. Raj Kumari and Sri Om Prakash (through Smt. Vidyawati, District Lucknow) have come up in appeal against the judgment and decree, passed by the learned Addl. Commissioner, Rohilkhan Division, Bareilly, on June 18, 1973, whereby he set aside the order and decree passed by the learned Sub-Divisional Officer, Baheri, district Bareilly, on the ground that the suit ought to have been rejected by the Trial Court under Order 7, Rule 11(d), Civil Procedure Code, and was barred as Section 80 C.P.C. notice had not been given to the State Government which had to be impleaded as a necessary party under Section 209, Z.A. and L.R. Act, though it was impleaded as a party by the plaintiffs. On merits the learned Addl. Commissioner had concurred with the Trial Court's finding that Jaswant Singh was a trespasser and had not acquired Sirdari rights. 2. The only question for decision before me, therefore, is whether the suit was maintainable in the absence of notice under Section 80 C.P.C. to the State Government. 3. The Trial Court framed issue No. 1 on this point and found that a written reply was filed on behalf of the Government but the case was not further contested on behalf of the Govt. and as such the non-issue of the notice under Section 80 C.P.C. did not have any effect on this case. The learned Addl. Commissioner has stated that the plaint did not mention that a notice under Section 80 C.P.C. had been given to the state Government and there was no copy of this notice on the file and that no plaintiffs witnesses had testified to it in his oral evidence, and that in its written statement the State Government had objected that Section 80 C.P.C. notice had not been given to it and from this he concluded that Section 80 C.P.C. had not been given to the state Government. He held that Section 80 C.P.C. notice was essential and a pre-requisite before the State Government could be impleaded as a party in the suit under Section 209 Z.A. and L.R. Act and that since this notice had not been given the plaint was defective and barred under these legal provisions. 4. He held that Section 80 C.P.C. notice was essential and a pre-requisite before the State Government could be impleaded as a party in the suit under Section 209 Z.A. and L.R. Act and that since this notice had not been given the plaint was defective and barred under these legal provisions. 4. Learned counsel for the appellant has argued that only the State Government had a right to object and go in appeal after the Trial Court had held that, after filing 'the written reply', the State Government had not further contested the suit and that non-issue of notice to it under Section 80 C.P.C. did not have any effect on the case. He said that no third party had a right to raise an objection on behalf of the State Government. In this connection he referred to Gabul Singh and 10 other v. Board of Revenue and 3 others, Civil Misc. Writ Petition No. 789 of 1972, Distt. Meerut in which it was held in the circumstances of that case that it was not open to the respondent (a third party) to raise an objection about the non-maintainability of the suit on the ground that the notice under Section 80 C.P.C. had not been given to the State. Further, the learned counsel said that the State Government having filed a written statement did not press it and that showed that they had abandoned the plea and now the point could not be re-agitated. In support of this he cited A.I.R. 1935 (Alld.) 1004, headnote B. He also said that the State Government had not gone in appeal and that showed that they had nothing to urge against the finding of the Trial Court on this issue. He referred to the judgment dated July 28, 1966, (attested copy filed) in Hari Singh v. The Board of Revenue, U.P. and 5 others, Civil Misc. Writ No. 1830 of 1963 in which K.B. Asthana, J. held that there was no indication in Section 209 Z.A. and L.R. Act, which was a special law, or in the Rules made thereunder that a notice had to be served on the State Government before impleading it as a necessary party, the provisions of Section 80 C.P.C., which is the general law, have to be ruled out from application. He stated that the impleading of the Government in a suit in which the cause of action is not based on any alleged act of omission or commission of the Government and no effective relief is sought against that Government would not, to my mind, be a suit instituted against the Government within the meaning of Section 80 of the C.P. Code. The State thus could be impleaded without giving it a prior notice under Section 80 C.P.C. 5. The learned counsel for the appellant further argued that the impleadment has to be at the initial stage, i.e., at the stage of the Trial Court when the suit is filed and that the learned Addl. Commissioner was wrong in basing his impugned order on Order VII, Rule 11(d), which relates to the rejection of a plaint where it appears from the statement in the plaint to be barred by any law. There is no statement in the plaint, he said, which showed that it was barred by any law. The learned counsel further argued that, since the State Government did not agitate the point after filling the written statement, it had waived the claim to be notified under Section 80 C.P.C. He cited A.I.R. 1947 (P.C.) 197, headnote (b) on this point. He said that in the ruling it was laid down that if in a particular case the Government itself says that it does not require a notice under Section 80 C.P.C. it can lawfully waive ts right to the notice. He said that in the present case the fact was that no notice had been given to the State Government and they had only been impleaded as a party, and therefore, there was no question of making a statement in the plaint to the effect that Section 80 C.P.C. notice had been given to the State Government. Lastly, he contended that at the worst the non-issue of a notice was an irregularity and not a illegality and the decree of the Trial Court was protected by Section 99 C.P. Code. 6. Learned counsel for the respondent argued that the impleadment of the State Government was a mandatory requirement under Section 209 Z.A. and L.R. Act and that the only way of impleadment was by issue of a notice to it under Section 80 C.P.C. prior to the institution of this suit. 6. Learned counsel for the respondent argued that the impleadment of the State Government was a mandatory requirement under Section 209 Z.A. and L.R. Act and that the only way of impleadment was by issue of a notice to it under Section 80 C.P.C. prior to the institution of this suit. According to him it was immaterial whether relief was sought against the State Govt. or not. He then pointed out that under Section 15(2)of the Limitation Act there is a provision for excluding the notice period of 60 days for calculating the prescribed period of limitation. On this point he referred to para 12 of my judgment in Sahib Singh v. Raj Bahadur Singh, Appeal No. 158(z) of 1972-73 which was delivered on November 5, 1976, wherein I had clearly expressed the view that 'Section 80 C.P.C. notices to the Government and the Gaon Sabha are inescapable, if a suit has to be maintainable in all those cases where the law lays down that they shall be parties' and that the Full Bench decision of this Board in 1976 R.D. 244 places the subject beyond the pale of controversy. He said that the plaint was defective as it omits to state that Section 80 C.P.C. notice to the State Government had been given and that according to Section 107 C.P.C. the appellate court had the same power as the Trial court and the point of proper impleadment of the State Government could be agitated at the appellate stage also. He asserted that third party had the right to agitate this point, even if the State Government did not do so, as it raised the issue of the maintainability of the suit on the ground of its having been defectively instituted. He referred to Rule 182(1) and (1-A) and contended that the issue of Section 80 C.P.C. notice was mandatory and in its absence the suit must fail. 7. Learned counsel for the appellant, clarifying the position as regards Section 15(2) of the Limitation Act, pointed out that the Section provides for exclusion of the 60 days of the notice period, only if a notice had been given to the State Government under Section 80 C.P.C. and that, if a notice had not been given, there was no question of excluding the notice period. He contended that the reference to this section of the Limitation Act by the respondent's learned counsel was irrelevant and had no bearing on the crucial issue involved. 8. The established law regarding impleadment of Government as a necessary party has been lucidly laid down in Full Bench of this Board in Jagnu v. Birbal, 1976 R.D. 244. The ruling lays down inter alia, as follows:- (1) ".....In all sections of the U.P.Z.A. and L.R. Act, in which it is laid down that the State Government shall be made a party, it is our considered view that the term 'shall' has been used in mandatory sense and that the use of this terms makes the State Government a 'necessary' party as distinguished from a 'formal' or 'proper' party. When the State Government is a necessary party, the service of notice under Section 80, C.P.C., cannot be done away with just because there is no direct cause of action against the State Government. The very purpose of making the State Government a necessary party in such suits would be defeated if notices under Section 80 C.P.C. were not to be given before hand. Our view finds full support from the cause of Amar Nath Dongra v. Union of India, in which their Lordships of the Supreme Court have held that a suit against the Government will be barred by Section 80 C.P.C. in case there is non-compliance with the requisite of this section'. It is true that in this case there were many other facts which do not have a direct bearing on, or relevance for, the purpose of instant reference, yet in view of the unequivocal pronouncement of the highest court of the land that in respect of suits to which Section 80 applies, compliance with it is mandatory and a suit which does not satisfy its terms is liable to be dismissed, there can be hardly any scope for doubts or misgivings in this respect. (Para 6) (2) ".....It is a well settled principle of law that if a notice can be and has been waived by the authority concerned, the natural conclusion appears to be that it is not open to any other party to the suit to urge want of notice against the maintainability of that suit. (Para 6) (2) ".....It is a well settled principle of law that if a notice can be and has been waived by the authority concerned, the natural conclusion appears to be that it is not open to any other party to the suit to urge want of notice against the maintainability of that suit. If the authority for whose benefit Section 80, C.P.C. has been enacted, as does not claim the benefit, it is not for other persons to press into service the provisions of that section for defeating the suit. This view expressed by the Allahabad High Court in the case of Gaja v. Das Loeri has been reiterated in another case of the same High Court, Banarsi Rai v. D. Aherr", (Para 9). 9. On the facts of this case it comes out that (1) no notice under Section 80 C.P.C. was given to the State Government though it was the mandatory requirement for filing a suit under Section 209 Z.A. and L.R. Act, and that (2) the State Government did put in its objections in its written statement filed on October 3, 1970 stating inter alia, that it had not been property impleaded, as no required notice under Section 80 C.P.C. had been given to it; that it denied all the claims of the plaintiff and that the matter of the suit was properly of declaration. Therefore, it is evident that there was no waiver and the mandatory requirement of law was not fulfilled. There is also no question of the acquiescence of the State Government and it was not bound to file a revision or appeal. It would be unseemly if the State Government was expected to run to courts, for being impleaded, in the face of clear provision of law laying down the procedure for its impleadment. There is, therefore, also no question here of a third party pleading for the impleadment of the State. 10. The learned Trial Court had framed issue No. 1 on this point and its finding is as follows: "Issue No. 1 - Written reply was filed on behalf of the Government but the case was not further contested on behalf of the State Government; as such the non-issue of the notice under Section 80 C.P.C. does not have any effect on this case. The issue is decided accordingly." 11. The learned Addl. The issue is decided accordingly." 11. The learned Addl. Commissioner, dealing with this aspect of the case observed that the State Government had raised solid objection that Section 80 C.P.C. notice had not been given to it, though it was absolutely necessary to do so in a suit under Section 209 Z.A. and L.R. Act and that this was a fatal flaw and the suit could not have been instituted. He, therefore, reversed the finding of the Trial Court and rejected the plaint under Order VII, Rule 11. The judgment is dated June 18, 1973 and he naturally relied on the then latest available ruling in 1972 R.D. 290. 12. It is clear that the Trial Court committed a manifest error in not proceeding according to the law. For a valid institution of a suit under Section 209 Z.A. and L.R. Act, the State Government is a necessary party, whether there is any specific cause of action against the State Government or not. The only way to implead the State Government is to give it a notice under Section 80 C.P.C. as provided for in Rule 182 (1-A) of he Z.A. and L.R. Rules. Rules 182 reads as follows:- "182 (1) In hearing and deciding suits, application and other proceedings under this Chapter, revenue courts shall follows mutatis mutandis land subject to the following amendment, the procedure laid down in Parts I and IV of the Revenue Court Manual. In between the words 'Government' and 'as a party' occurring in sub-rule (1) of Rule 204 of the Revenue Court Manual, the words 'or a (Gaon Sabha)' shall be inserted. (I-A) The provisions of Section 80 of the Code of Civil Procedure, 1908, shall apply to all suits covered by sub-rule (1). (2) The provisions regarding appeals, revisions and review contained in Chapter X of the U.P. Land Revenue Act, 1901, as amended by the Act, shall apply to the orders passed by revenue courts under this chapter." It is evident from the use of the word 'shall' that Section 80 C.P.C. notice is mandatory and is not dependent on the existence of a cause of action against the State Government and seeking of relief from the State Government. In this aspect of the matter, there is no material distinction possible between institution of a suit against the Government and impleadment of Government as a necessary party in a suit, as in other case Section 80, C.P.C. notice is unavoidable for a proper filing of the plaint and valid institution of a suit. In the former case, it is manifest that there is a cause of action against the Government, in the latter it is immaterial whether there is in any cause of action against the Government or not, but in either case Section 80 C.P.C. notice is necessary. 13. It would also be evident that it is not a case of irregularity which was remediable under Section 99 C.P.C., but of the maintainability of the suit. Since the State Government had objected that it had not been property impleaded, the plaint could not be considered as having been property filed and the suit could not have been considered as validly instituted. The learned trial court traversed beyond its jurisdiction in entertaining the plaint and institution of the suit and proceedings with it. The entire proceeding herein was without jurisdiction and cannot be sustained. 14. In the present case the learned Trial Court was wrong in holding that because after filing the written reply the State Government did not further contest the case the case could go on without being affected by non-issue of notice to it under Section 80 C.P.C. The suit itself had not been properly instituted and, therefore there was no case to be contested by the State Government. The State Government had taken care to submit to the Trial Court inter alia, that it had not been properly impleaded, and yet it could not even logically as well as legally follow that it did not matter if Section 80 C.P.C. notice had not been issued to it and that the proceedings could go on untrammelled. This cannot be called a waiver of the requirement of notice by the State Government. The proper course for the learned Trial Court would have been to have rejected the plaint in view of non-compliance of the mandatory requirement or to have done so subsequently, in view of the objection validly taken by the State Government. On neither of these occasions the learned Trial Court took the only view of the matter that was possible under the law. 15. On neither of these occasions the learned Trial Court took the only view of the matter that was possible under the law. 15. I, therefore, hold that the Trial Court was wrong in entertaining the plaint and in institution the suit and in disposing of the written objection filed by the State Government. 16. Though the learned counsels argued on the merits of the case also, it is no longer necessary and proper to go into them here in view of my finding above. 17. In the result the appeal fails. 18. Under the circumstances of the case there is no order as to costs.