Judgment :- 1. The late Shri N Sundara Iyer was a distinguished Advocate of this Court. He was a man of learning as well as benevolence He was an ardent supporter of the Bhoodan Movement. In 1957 when Shri Vinoba Bhave came to Kerala, Shri Sundara Iyer made a gift of about 15 acres of land in Vadakkanchery. Little had he apparently realised then what complications were to arise later out of his philanthropy. 2. The gift was made to the plaintiff who is the 1st respondent in this second appeal filed by the 1st and 2nd defendants. The gift was not made to the plaintiff personally, but, as found by the courts below, in his official capacity as President of the Gram Daan Sarvodaya Co-operative Society ('the Society') and as Secretary of the Gandhi Asramam. It was an oral gift to start with; and the gift deed (Ext Al) was registered in 1963. The Society passed a resolution (Ext. A2 (a)) dated 24th April 1963, allowing the plaintiff, his wife and defendants 1 and 2 to cultivate the land covered by Ext. Al by means of pooling through a Co-operative Farming Society. This farming Society soon got into difficulties and was finally wound up. In the course of winding up, the liquidator who was appointed by the Registrar of Co-operative Societies directed that the land which was pooled should be separately held by the persons mentioned in Ext. A2 (a): i e., by the plaintiff, his wife and defendants 1 and 2 Subsequently, the Society by resolution dated 9-4-1973 (Ext. A3) decided that the possession of the land mentioned under Ext A2 (a) was to be delivered back to the Society. This resolution was complied with by the plaintiff and his wife. But the 1st and 2nd defendants refused to deliver possession of the properties to the Society. These defendants contended that the properties held by them belonged to them absolutely as they were gifted to them directly in 1957 by Shri Sundara Iyer under an unregistered document which they did not produce in court. 3. Since the 1st and 2nd defendants refused to deliver possession and since the liquidator had directed that possession be retained by the persons mentioned under Ex. 3. Since the 1st and 2nd defendants refused to deliver possession and since the liquidator had directed that possession be retained by the persons mentioned under Ex. A2(a), a suit was instituted by the plaintiff against defendants 1 and 2 as well as the 3rd defendant the liquidator, and the 4th defendant the Registrar who appointed the liquidator. Various contentions were raised by the defendants in their statements. Defendants 3 and 4 being public officers contended that in the absence of a notice under S.80 CPC., the suit against them was not maintainable. Defendants 1 and 2 contended that the suit was not maintainable because: (a) notice under S.80 CPC not having been issued to defendants 3 and 4 who are public officers, the suit was barred by law and it was liable to be dismissed in limine; and (b) the subject-matter of the suit being a dispute coming under S.69 of the Co-operative Societies Act, 1969, the civil court had no jurisdiction to entertain the suit. They further contended that they were owners in possession of the suit properties and were not liable to surrender the same. 4. The courts below held that the suit against defendants 3 and 4 was not maintainable in the absence of a proper notice under S.80 CPC. However, it was held that the suit was maintainable against defendants 1 and 2 who were only private individuals. The courts further found that defendants 1 and 2 had no title to the properties and that they were liable to surrender possession in term of Ext. A3 to the Society which was the true owner. Both the courts found that the suit was instituted by the plaintiff as the President of the Society, and not in his individual capacity, and as such his competence to maintain the action was upheld. 5. The only contentions urged before me on behalf of the appellants are the followings: 1. The suit was not maintainable for lack of notice under S.80 CPC. 2. The suit was not maintainable owing to the bar under S.100 read with S.69 and 2 (i) of the Co-operative Societies Act, 1969. 3. The 1st and 2nd defendants are the owners of the properties in question and are not liable to surrender possession of the same. 6. 2. The suit was not maintainable owing to the bar under S.100 read with S.69 and 2 (i) of the Co-operative Societies Act, 1969. 3. The 1st and 2nd defendants are the owners of the properties in question and are not liable to surrender possession of the same. 6. The question whether private individuals who are defendants in a suit can object to the maintainability of the suit on the ground that notice under S.80 CPC. was not given to public officers who are also impleaded in the suit has been considered in a number of decisions. This Court in Narayani Pillai v. Raman Pillai (1968 KLT. 836) has held that a defendant who is a private individual, is not entitled to raise any such objection. To allow such a defendant to raise any such defence which the State or its officers alone can take, this Court stated, would be to allow him to plead the jus tertii. There are a number of decisions of various High Courts to the effect that a private person cannot object to the maintainability of a suit on the ground of no notice to the Government or public officers under S.80 CPC.: Registrar of Co-operative Societies, Bihar v. Ramkishan Mandar (AIR. 1939 Patna 32); Kanganna v. Ramalingam (AIR 1948 Patna 117); Md. Sakiuddin v. District Assistant Custodian of Evacuee Property, Bihar (AIR. 1963 Patna 11); Ramcharan Mahto v. Custodian of Evacuee Property, Bihar (AIR. 1964 Patna 275); Mst Chandani v. Rajasthan State (AIR. 1962 Rajasthan 36); Appalanarasamma v. Commissioner, Municipal Council, Vizagapatam (AIR 1945 Madras 224); State of Madras v. Maharaja of Pithapuram (AIR. 1952 Madras 510); Manickavasagam v. Muthuveeraswami (AIR. 1963 Madras 362); Hirachand Himatlal Marwari v. Kashinata Thakurji Jadhav (AIR. 1942 Bombay 339); P. B Shah & Co. v. Chief Executive Officer (AIR. 1962 Calcutta 283); Bhagchand Dagdusa Gujrathi v. Secretary of State for India (AIR. 1927 P. C. 176, 185). 7. Shri Joseph M. Madathil, counsel for the appellants contended that no reliance can be placed on the decision in Narayani Pillai v. Raman Pillai (1968 KLT. 836), for that decision, according to counsel, was overruled by a later decision of the Division Bench in State of Kerala v. K. G Damodaran Pillai (1971 KLT. 375). It is true that there is an editorial comment to the effect that 1968 KLT. 836), for that decision, according to counsel, was overruled by a later decision of the Division Bench in State of Kerala v. K. G Damodaran Pillai (1971 KLT. 375). It is true that there is an editorial comment to the effect that 1968 KLT. 836 was overruled, but in my view that decision was not overruled wholly but only in part. 8. The two questions which arose in 1968 KLT 836 are: "firstly, whether the Revenue Board's order would bind the plaintiff, who was no party thereto, and secondly, whether the first defendant can claim a non-suit for lack of the statutory notice to the Government." (See para 3). The first question is not relevant here. On the second question, Madhavan Nair J. dealt with the two aspects of the argument urged on behalf of the appellant/ 1st defendant who was a private individual. It was contended that in a suit in which the Government or a public officer was a defendant, a notice under S.80 CPC. was a condition precedent to the exercise of jurisdiction by the court. It was further contended that it was open to any defendant (even if he be a private individual) to raise an objection to the maintainability of the suit for lack of notice under S 80 CPC. if the Government or a public officer was one of the defendants. Both these contentions were rejected by Madhavan Nair, J. It was the rejection of the first contention namely the argument as to the jurisdictional fact-that attracted the adverse comments of the Division Bench in State of Kerala v. K. G. Damodaran Pillai (1971 KLT 375). Madhavan Nair J. observed: "It indicates that a notice under S.80 CPC. cannot be a jurisdictional condition When it is said that such notice might be waived by the Government it becomes obvious that the inherent jurisdiction of the court is not dependent on it. (italics supplied). 1968 KLT 836, 841. Referring to this observation, the Division Bench stated: "We cannot accept the observations of Madhavan Nair J. as correct. S.80. CPC. is a bar to the institution of a suit before the expiration of the period mentioned therein. It imposes a statutory and unqualified obligation upon the court. The learned judge is right in thinking that S 80. Referring to this observation, the Division Bench stated: "We cannot accept the observations of Madhavan Nair J. as correct. S.80. CPC. is a bar to the institution of a suit before the expiration of the period mentioned therein. It imposes a statutory and unqualified obligation upon the court. The learned judge is right in thinking that S 80. CPC, has nothing to do with the inherent jurisdiction of a court to try the suit But once S 80 embodies a condition precedent for the institution of a suit against the public officer or the State until that condition is fulfilled it is not open to the plaintiff to institute the suit against the public officer or the Government without complying with that condition. It is true, that the notice contemplated by S.80, C.P.C. can be waived A suit which does not comply with the provisions of S.80, CPC. cannot be entertained by the court." (1971 KLT 375, Para.7) (italics supplied) It is thus clear that the Division Bench differed from Madhavan Nair J. only insofar as the learn d judge observed that a notice under S.80 CPC. was not a jurisdictional condition, and no other aspect of the decision in 1968 KLT 836 attracted the criticism of the Division Bench. To that limited extent 1968 KLT. 836 stands overruled by 1971 KLT 375, and not any further. The second aspect of the second question namely, the plea of jus tertii which was considered by Madhavan Nair J. did not arise for the consideration of the Division Bench for in that case the State was the only defendant. The decision in 1968 KLT 836 is, as far as I can see, good law on the plea of jus tertii, and with great respect I am in complete agreement with what Madhavan Nair J. stated on the point. This is what the learned judge stated: "Counsel for the appellant urges that as an ejection to the maintainability of the suit, it is open to any party in the suit to urge it. I do not feel persuaded by this argument It is an elementary rule in judicial proceedings that nobody can plead jus tertii as a defence. This is what the learned judge stated: "Counsel for the appellant urges that as an ejection to the maintainability of the suit, it is open to any party in the suit to urge it. I do not feel persuaded by this argument It is an elementary rule in judicial proceedings that nobody can plead jus tertii as a defence. As pointed out by the Supreme Court the object of S.80 CPC is only to give the government notice of the suit proposed to be brought against it so that it may decide for itself whether the claim of the plaintiff should be accepted or resisted (The State of Madras v. C. P Agencies AIR 1969 SC. 1309). The benefit of the S.80 CPC. is only to the government and its officers and not to private parties. It cannot then be availed of by a private party who is made a defendant to the suit along with the State." [See also State of Punjab v. Geetha Iron & Brass Works, 1978 KLT. 37 (SC)]. The object of S.80 C P. C. is thus to protect the interest of the State and its officers and not to provide private individuals with a shield in defence. If the suit against the appellants is maintainable without impleading the public officers, there is no reason why the suit should be bad against the appellants once it is dismissed against the public officers As stated by Meredith J. in Kannappan v. Ramalingam (AIR. 1948 Patna 117): "I think the test in cases of this kind is whether the suit would be maintainable as against the private individual, without impleading the official, and in such case I see no reason why the official should not be struck out and the suit be allowed to proceed against the private individual in the case of whom no notice under S.80 was at all necessary." This is what was done in the present case. The courts below were perfectly justified in holding that the public officers were not necessary parties in the suit for recovery of possession on the basis of title, and that, though the suit failed against them for non-service of notice under S.80 CPC., it was maintainable against defendants I and 2. 9. The second objection of the appellants is based on the bar under the Co-operative Societies Act. 9. The second objection of the appellants is based on the bar under the Co-operative Societies Act. There is no doubt that if the subject-matter of the suit falls within the scope of 'dispute' coming under S.69 of the Cooperative Societies Act, 1969. the jurisdiction of the civil court is barred. A'dispute' is defined under S.2 (i) as follows: "'dispute' means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not," The dispute in the present case relates to the title to land. It is the contention of the appellants that the title to the properties is with them whereas according to the Society the title is vested in it. The subject-matter of the suit being thus a dispute in regard to the title to immovable properties, the bar under the Co-operative Societies Act has no application to the present case. In Mannur S. Co-operative Bank Ltd., v. AM Haji (1975 KLT. 363) Namboodiripad J. stated: "This is a simple suit for establishing the plaintiff's title to certain properties attached in execution of an award. One fails to understand how such an action can attract either of the categories covered by the expression 'dispute'. Thus the argument advanced on the basis of S.69 (1)(b) has only to be rejected." With great respect, I am in complete agreement with that observation. In the circumstances, I see no merits in the contention based on the provisions of the Co-operative societies Act. 10. The Appellants further contended that the court below erred in finding that the appellants were not the owners in possession of the properties. Both the courts on the basis of evidence came to the conclusion that the land in question was transferred to the plaintiff by Shri Sundara Iyer as early as 1957 and a deed of gift was only executed and registered in 1963 in favour of the plaintiff in his capacity as President of the Society. The courts also found on the basis of evidence that the Society was in effective occupation of the land until it was transferred to the the persons mentioned in Ext. P2 strictly for the purpose of cultivation by means of pooling through the farming society. The courts also found on the basis of evidence that the Society was in effective occupation of the land until it was transferred to the the persons mentioned in Ext. P2 strictly for the purpose of cultivation by means of pooling through the farming society. The courts rejected the appellants' claim that the properties in question have been transferred to them under a certain document by Shri Sundara Iyer. The appellants did not produce the document and they have no case that any registered document conveying title to them is in existence In the light of such telling evidence on the part of the plaintiff and having regard to the total lack of evidence on the part of defendants 1 and 2, the courts concurrently found that the contentions of the 1st and 2nd defendants regarding title were totally without basis. In the second appeal, it is not within my province to re-appreciate the evidence. I see no substance in this contention also. The appeal therefore fails and it is dismissed. 11. The courts below rightly held that the suit was not maintainable against defendants 3 and 4. Notwithstanding the dismissal of the suit against them with costs by the trial court, they were unnecessarily made parties to the proceedings in the lower appellate court as well as here. In the circumstances I am of the view that defendants 3 and 4 (respondents 2 and 3 in this appeal) are entitled to their costs throughout. I do not however make any direction as regards the costs of the 1st respondent plaintiff in the second appeal. I wish to express my appreciation for the learning and ability with which Shri R. D. Shenoi, counsel for the 1st respondent/ plaintiff, presented his argument.