Nirhjhin Kurmi v. Gram Samaj — 1980 DIGILAW 105 (ALL)

JUDGMENT S.D. Agarwal, J. - This is a plaintiff's second appeal arising out of a suit filed for an injunction restraining the respondent No. 1 Gram Samaj and the State of U.P. from interfering with the possession of the building over the disputed land along with the trees. The suit proceed ex parte against the State of U.P. the suit was decreed by the trial court on 20th August 1959 with costs from the respondent no. 1 Against the said judgment an appeal was filed by the Gram Samaj and not by the State of U.P. against whom an ex parte decree has been passed. The lower appellate court allowed the appeal in part. The judgment and decree of the trial court was affirmed in so far as the relief for injunction in respect of the disputed trees was concerned, but the judgment and decree of the trial court was modified and it was made clear that the suit stood dismissed in so far as the tank and bhitas are concerned. The judgment of the lower appellate court is dated 4th October, 1967. Against the said judgment neither Grain Samaj nor the State of U.P. has filed appeal. As such, so far as the injunction for trees is concerned that became final. The plaintiffs have, however, filed the present appeal challenging the judgment of the lower appellate court by which it has refused to grant them the relief in regard to the tank and bhitas. 2. Learned counsel for the appellants has urged that on the finding that the tank and bhitas have been built by the predecessor-in-interest of the appellant on the tenancy land, the said tank: and bhitas could not vest in the respondents under section 6 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 and the view to the contrary taken by the lower appellate court is, thus, erroneous in law. 3. Shri R. P. Misra learned standing counsel appearing on behalf of the respondents had, however, urged that the view taken by the lower appellate court is correct. He has also further urged that, in fact, the suit was barred by Section 80, C. P. C. as well as by Section 106 of the U.P. Panchayat Raj Act, 1947, and in this view of the matter also the plaintiffs appeal cannot be allowed and the suit was liable to be dismissed. 4. He has also further urged that, in fact, the suit was barred by Section 80, C. P. C. as well as by Section 106 of the U.P. Panchayat Raj Act, 1947, and in this view of the matter also the plaintiffs appeal cannot be allowed and the suit was liable to be dismissed. 4. I have heard the learned counsel for the parties at length. Section 6 of the U.P. Zamindari Abolition and Land Reforms Act provides as follows :- "Sec. 6...................." 5. From the reading of section 6 it is clear that all rights, title and interest of the intermediaries vests in ,the State of U.P. when a notification has been issued under section 4 in the Gazette. By virtue of this section, rights, title and interest of the tenants, however, do not vest in the State of U.P. In the circumstances, it is obvious that the view taken by the lower appellate court that the tank and bhitas of the plaintiffs appellants which were built by their predecessor-in-interest of the tenancy land is a view wholly erroneous in law. 6. The next question that arises for consideration is in regard to the validity of the notice under section 80 of the Civil Procedure Code. Admittedly no notice under 80, C.P.C. had been given in the instant case. The State of U.P. was made a party. The State of U.P. did not contest the suit and the suit was decreed ex parte against the State of U.P. Against the decree passed by the trial court the State of U.P. did not file any appeal before the lower appellate court. Now the State of U.P. has been made a respondent in the appeal because the appellants had filed the appeal against the portion of the relief which has been refused to them. 7. Learned counsel for the appellant had urged that since the State of U.P. did not contest the suit and did not question the maintainability of the suit on the ground of section 80, C. P. C. it should be deemed that the State of the U.P. had waived the said plea In support of the submission, learned counsel has cited a large number of the authorities. The first, authority which has been cited by him is Banarsi Ram v. D. Ahir and others, 1964 ALJ 237. The first, authority which has been cited by him is Banarsi Ram v. D. Ahir and others, 1964 ALJ 237. Shri S.N. Katju, J, (as he then was) has held that the provisions of section 80, C.P.C. are directly meant for the protection of the authority concerned and if that authority chooses not to raise the plea of want of notice or does not contest the suit, then it is not open to any other defendant to raise the plea of want of notice under Section 80, C.P.C. 8. The next case cited is Gaja v. Dass Kosri, 1964 All LJ 969. Ganeshwar Prasad, J. (as he then was) has held 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 for want of notice against the maintainability of the suit. If the authority for whose benefit section 80, C. P. C. has been enacted does not claim the benefit it is not for other person to press into service the provisions of that section for defeating a suit. 9. Learned counsel for the appellant has also placed reliance in Ishtinq Hussain v. Zafrul Islam, AIR 1969 All 161 . S. K. Verma, J. (as he then was) has laid down that the plea in regard to the want of notice under section 80 cannot be raised by the private individual to assail the decree. In view of the fact that the State Government did not put in appearance, shows that State Government had waived the said plea. 10. The last case relied upon by the learned counsel in this question is the decision of a Division Bench of this Court in District Board Banaras v. Churhu Raj, AIR 1956 All 680 . The Division Bench of this Court has held that it is always open to a defendant for whose benefit notice is prescribed by law to waive it and as such if a plea in regard to the want of notice was not pressed in the trial court, nor was it raised in the memorandum of first appeal and in the second appeal it should be deemed that the said plea had been waived. 11. I respectfully agree with the decision mentioned above and the principles laid down therein. 11. I respectfully agree with the decision mentioned above and the principles laid down therein. In the instant case also the State of U.P. did not file any written statement nor took up such a plea before the trial court. The suit was decreed ex parte against the State of U.P. No appeal was filed before the lower appellate court. In the circumstances, I am of the opinion that the plea in regard to want of notice had been waived by the State of U.P. and now it is not open for either the Gram Samaj or the State of U.P. to take up this plea at this second appellate stage. 12. Learned standing counsel had, however, relied on that decision of Sri Ram and others v. Smt. Mullo Devi, 1979 All LJ 1134. In the said case, the question whether the plea in regard to want of notice shall be deemed to be waived or not for consideration before the court. The only question involved was as to when the State of U.P. is made a party subsequent to the filing of the suit, a plea in regard to want of notice can be taken by the State of U.P. or not. The case of Sri Ram (supra) does not in any manner help the respondents. In view of the above, the suit in my opinion is not bad due to the fact that the notice had not been given under section 80, C.P.C. 13. The last question which requires for consideration is as to whether in the absence of notice under section 106 of the U.P. Panchayat Raj Act, 1947 the suit was maintainable or not. Section 106 of the U.P. Panchayat Raj Act is as follows : - "106 ........................................................................" 14. The words used in section 106 of the U.P. Panchayat Raj Act apply only to a case where a suit has been instituted against the Caon Sabha or Gaon Panchayat. This section does not apply to a case where a suit had been instituted against Gram Samaj. The instant suit was instituted on 22nd August, 1966 and at that time the words, Goan Sabha were not in existence in Section 106 of the Panchayat Raj Act quoted above. This section does not apply to a case where a suit had been instituted against Gram Samaj. The instant suit was instituted on 22nd August, 1966 and at that time the words, Goan Sabha were not in existence in Section 106 of the Panchayat Raj Act quoted above. In this view of the matter, it was not necessary in law to give a notice under section 106 of the Act to the Gaon Sabha before filing the suit. 15. Learned standing counsel has, however, urged that in fact, Gaon Sabha and Gram Samaj are the same bodies with differentness and as such when a suit is filed against Gram Samaj it was mandatory for the plaintiff-appellants to have given a notice under section 106 of the Panchayat Raj Act. This submission made by the learned standing counsel, in my opinion is not well founded. Sections 117, 118, 119 and 120 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 unamended lay down a clear distinction between the Gram Samaj and Gaon Sabha. In the year 1956 when the suit was filed these were two different bodies and as such, the argument advanced by the learned counsel does not have any substance. 16. In the result, the suit is not bad because of want of notice under section 106 of the Panchayat Raj Act. 17. In the result, I allow the appeal, set aside the decree passed by the lower appellate court dated 4th October, 1967 and restore that of the trial court in the circumstances of the case, parties are directed to bear their own costs.