JUDGMENT I.B. Singh, M. - This larger Full Bench has been constituted by the order of learned Seniormost Member/Chairman of the Board on the reference made by learned Member Sri Kaushal Kishore, by his order dated December 6, 1982 regarding decision of a Full Bench consisting of Mr. K. Kishore, M. Maheshwar Prasad learned Members and myself dated July 20, 1981 deciding two questions referred by Mr. J.S. Gupta, learned Member on whose reference dated October 15, 1979 the said Full Bench was constituted. 2. The two questions referred by Mr. J.S. Gupta, the then learned Member were as follows:- "(1) Whether in a suit for division of holding under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, where the defendant denies the title of the plaintiff it is necessary for the plaintiff it is necessary for the plaintiff to get his suit converted into one for declaration and division under Section 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act, and - (2) If the plaintiff is required to get his suit for division converted into a suit for declaration and division, whether State has to be given a notice under Section 80 C.P. Code? 3. Mr. Kaushal Kishore, learned Member has opined in making the reference that the other alternative in question No. 1 that if the plaintiff was not a recorded tenant has not been answered by the Full Bench and question No. 2 was also not answered. 4. We have heard the learned counsel for the parties and have perused the record. 5. It has been argued by Mr. N.C. Rajvanshi, learned Advocate for the plaintiff, that if the plaintiff is not a recorded tenant and has filed suit for division only, his suit cannot be thrown out and the State Government should be impleaded. Reliance has been placed on Order 1 rule 9 and rule 10 of the C.P.C. and on 1967 R.D. 344. 6. Mr. N.C. Rajvanshi, learned Advocate for the plaintiff, that if the plaintiff is not a recorded tenant and has filed suit for division only, his suit cannot be thrown out and the State Government should be impleaded. Reliance has been placed on Order 1 rule 9 and rule 10 of the C.P.C. and on 1967 R.D. 344. 6. Mr. S.N. Pandey, learned counsel for the respondent argued that if the unrecorded plaintiff is allowed to amend the plaint for impleading the State Government as a party on converting the suit also under Section 229-B then as the amendment shall relate back to the date of the institution of the suit and prior notice under Section 80 C.P.C. before filing the suit as is required by the section has not been given the suit should be thrown out. 7. Mr. D.N. Srivastava, learned D.G.C. (R) has argued that as far as question No. 1 was referred which was answered in the negative then certainly question No. 2 would not arise and as second alternative of question No. 2 was also dealt with in para six of the order by the previous Full Bench if that answer is not incorporated while answering question No. 1 the position is likely to be misunderstood by the courts below and learned Advocates of Mofassil Courts. 8. We are of definite opinion that original question No. 1 referred by Mr. J.S. Gupta, learned Member was rightly answered by the previous Full Bench and even the second alternative was also answered per paras 5 and 6 of the order by the previous Full Bench. But as it appears that clarification by splitting question No. 1 into 2 required parts by reframing as follows and answering them will be able to clarify the situation which appears to be essential. 9. The question No. (1) requires to be re-framed as 1(a) and 1(b) as follows :- "1(a) Whether in a suit for division of holding under Section 176 U.P. Zamindari Abolition and Land Reforms Act, where the defendant denies the title of the plaintiff who is recorded as a co-tenant, is it necessary for the plaintiff to get his suit converted in to one for declaration and division under Section 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act? 1(b) Whether in a suit for division of holding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, where the defendant denies the title of the plaintiff who is not recorded as a co-tenant, is it necessary for the plaintiff to get his suit converted into one for declaration and division under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act?" 10. In Ramesh Chandra v. Panna Lal 1977 A.W.C. (Rev.) 125 it has been held as follows:- "The U.P. Zamindari Abolition and Land Reforms Act has a specific section, which provides for declaration of title of a person not already recorded as a Bhumidhar or Sirdar. The statue must be read as a whole and not peace-meal. When the law itself provides a procedure separately for declaration of title, it would be circumventing the statue to attempt to gain a particular relief form a section thereof which could only be given by a suit field under any other provision specifically incorporated for the purpose." In Champnia v. Janki Prasad 1969 R.D. 125 it has been held as follows: "A suit for division of holding presupposes that the plaintiff is a co-sharer, but if the fact of co-sharing is denied, it is incorrect to say that the plaintiff must be obliged to seek a declaration of his title. On the denial of the plaintiff's title, it was not necessary for the plaintiff to convert the suit for division into a suit for declaration and division. The Court was sized to decide whether the plaintiff claimed to be co-tenant of a particular share and one of the defendants had no right as she had remarried. 11. The suit for division is provided under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in which Gaon Sabha is a necessary party but the State Government is not a necessary party, while the suit for declaration is provided under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act where the State Government and Gaon Sabha both are necessary parties. This difference between two sections is due to the fact that the suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act is filed for the declaration of rights. This declaration may effect the right of the State in some cases, especially when the plaintiff is an unrecorded tenant. This difference between two sections is due to the fact that the suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act is filed for the declaration of rights. This declaration may effect the right of the State in some cases, especially when the plaintiff is an unrecorded tenant. It explains why the State Government is made a necessary party by the statue in such a suit. It is to be remembered that under Section 6 of the U.P. Zamindari Abolition and Land Reforms Act, all the rights, title and interest of all intermediaries vested in the State, and the recorded tenants etc. were given fresh tenancy rights by U.P. Zamindari Abolition and Land Reforms Act, which were fresh tenancy rights of Bhumidhars, (Sirdars) Adhivasi and Asamis. After vesting the names of these Bhumidhars, (Sirdars), Adhivasis or Asamis were recorded in the record of rights maintained under the U.P. Land Revenue Act which are to be presumed as correct under Section 44 of the U.P. Land Revenue Act. 12. When the suit for partition is filed by a recorded co-tenant, it is a simple suit for partition of shares in which declaration of rights are not involved. But when an unrecorded co-tenant files a suit for partition of the holding, he in fact challenges the presumption of the correctness of the revenue entries. Such a suit no longer remains separate suit for partition in which only the separate shares of the co-tenure holders are to be determined, but it becomes a suit for declaration also. 13. Whether claim of an unrecorded person as co-Bhumidhar, Sirdar or Asami is correct or not, is to be determined in a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. 14. It may be argued that the declaration as sole Bhumidhar etc. may effect the rights of the State but not be the declaration as co-Bhumidhar etc. as by such declaration the persons recorded as Bhumidhars etc. are affected and not the State Government. 15. We do not agree with it. The rights of a Bhumidhar, Asami etc. are extinguished under Section 190(1)(a) of U.P. Zamindari Abolition and Land Reforms Act when he dies leaving no heir entitled to inherit him in accordance with the provisions of the Act. His property revests in the State. are affected and not the State Government. 15. We do not agree with it. The rights of a Bhumidhar, Asami etc. are extinguished under Section 190(1)(a) of U.P. Zamindari Abolition and Land Reforms Act when he dies leaving no heir entitled to inherit him in accordance with the provisions of the Act. His property revests in the State. In case a person having no rights or title is declared and is recorded as a co-tenant, he may succeed by survivorship under Section 175 of the U.P. Zamindari Abolition and Land Reforms Act in case of heir-less death of the original tenant which may affect the rights of the State Government. 16. Where a suit for partition is filed by a recorded tenant there would be no need for State Government to interfere and as such State Government was not made a necessary party in a suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act. If an unrecorded tenant files a suit for partition which involves the declaration of his rights also, such a suit is to be filed under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act also after adding the State Government as a party in accordance with law. 17. As regards the decides cases, the point in question is not yet decided, to the best of our knowledge by the Hon'ble High Court or by the Hon'ble Supreme Court. The learned counsel for the parties also did not rely on any other ruling of the Hon'ble Allahabad High Court or the Hon'ble Supreme Court on the point. 18. The matter came up before the Board of Revenue in Nathu v. Bhurey Singh 1964 A.W.R. (Rev.) 71. This case was decided by the Members R.R. Mathur and S.N. Mitra. While deciding the case Mr. Mathur observed as follows:- "The learned counsel for the respondent, on the other hand, urged that a suit for division under Section 176 presupposes that the plaintiff is a co-sharer and, where the title of the plaintiff to being a co-sharer is denied and the plaintiff is not recorded as a co-sharer, it becomes necessary for such a plaintiff to maintain a suit for declaration also. The learned counsel urged that in this case as the plaintiff-appellant had not brought the suit under Section 229-B and had not impleaded the State Government as a necessary party, hence, the learned lower appellate court was right in accepting the first appeal and dismissing the suit. I do not agree with this contention. The frame of the suit depends on the allegations made in the plaint. In this case the plaintiff had urged that he was co-share-holder on the ground that the holding was an ancestral holding of the parties who were the descendants from a common stock. On the denial of the plaintiff's title, it therefore did not become necessary that the plaintiff must convert his suit for a declaration under Section 229-B although it was necessary for the court below to frame an issue and decide whether the plaintiff was a so-sharer in the holding or not. If the courts below considered that in such a case the State Government was a necessary party, then the court had also the power to implead the State Government under Order I Rule 10(2) C.P.C., but the case should not have been dismissed for want of the State Government as no suit can be defeated by reason of misjoinder or non-joinder of parties vide Order I. Rule 9 C.P.C. I consider that in a case of this nature it would be proper to implead the State Government as a necessary party for determining the title of the plaintiff-appellant. But, as has already been stated above, the suit could not be thrown out for want of a necessary party." 19. These observations of the learned Member Sri Mathur were subject to the concurrence of the Member Sri S.N. Misra who gave his concurring order in the following terms: "This case has come for concurrence. My learned colleague has proposed to remand the case to the lower court. It would perhaps be advisable for the lower court to give a finding whether (1) Smt. Ram Rati is daughter of Roshan Singh, (2) She is married or unmarried. If Smt, Ram Rati is found to be unmarried daughter of Roshan Singh, she may be impleaded and her rights considered by the lower court. With this modification I concur with the proposed order." 20. If Smt, Ram Rati is found to be unmarried daughter of Roshan Singh, she may be impleaded and her rights considered by the lower court. With this modification I concur with the proposed order." 20. Thus it is clear that Sri S.N. Mitra, Member concurred with the order of remand to trail court to implead the State Government. It means that both the members thought that State Government was necessary party as the suit for partition filed by unrecorded co-tenant involved the appellant of his rights. The learned counsel for the respondent interpreted this case as a ruling of the provisions division bench to the effect that it is not necessary for an unrecorded tenant to file a suit for declaration of title under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, which relief can be given in the suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act itself. We do not agree with this interpretation. In our opinion this case is an authority on the point that the suit should not have been dismissed for non-joinder of State Government which should have been impleaded by the court under Order I Rule 10 C.P.C. It was not held in this case that the suit does not become one for declaration of right also and U.P. Government was not a necessary party. This bench consisting of the learned Members Sri Mathur and Sri Mitra remanded the case to the trial court for impleaded the State Government and not to the appellate court for deciding the appeal even in the absence of the State Government. Thus his case is not in conflict with our view but rather supports it. 21. Sri S.N. Mehrotra, Member, Board of Revenue in Ram Charan Singh v. Udai Narain Singh 1970 R.D. 383 held that Section 176 of the Act nowhere lays down that only a recorded tenant could bring a suit under Section 176, a Bhumidhar or Sirdar may sue for division of holding, but in every such suit the Gaon Sabha concerned shall be made a party. This section nowhere lays down that the State Government will be a necessary party in a suit for division of the holding. In this case learned Member failed to see that such a suit in fact became a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. This section nowhere lays down that the State Government will be a necessary party in a suit for division of the holding. In this case learned Member failed to see that such a suit in fact became a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. We are of the opinion that the ruling is not a good law. 22. In another case Sri P.P. Bhatnagar, Member, Board of Revenue Rameshwar v. Chottey Lal 1972 R.D. 76 observed as follows: "Where all the parties are recorded as tenure holders, there is no question of declaration of rights of any body; the only thing to be determined is the respective share of each where any of them is not a recorded tenure-holder and his rights are challenged, the suit becomes one for declaration of his rights as well as for division. A suit for declaration is covered by Section 229-B of U.P. Zamindari Abolition and Land Reforms Act in which the State Government is a necessary party." This case supports our view. 23. The case of Jagmohan v. Smt. Har Kunwar 1974 R.D. 313 was a case where the plaintiff was a recorded co-tenant. In this case Sri Saiyad Hussain, Member, Board of Revenue observed that by the mere denial of the title of the plaintiff, a recorded co-tenure-holder, as co-tenure-holder by the defendant, the U.P. State Government cannot be asked to give and file a written statement. It was held that the suit was not bad for non-joinder of U.P. State. Thus, this case is not in conflict with our view. 24. In Ramesh Chandra v. Panna Lal 1977 A.W.C. 125 (Rev.), Sri P.C. Saxena, Member observed that the U.P. Zamindari Abolition and Land Reforms Act has a specified section which provides for declaration of title of a person not already recorded as a Bhumidhar or Sirdar. Such declaration of title cannot be given in suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. He had taken the same view in the unreported case, Second Appeal No. 166 of 1972-73/Aligarh Smt. Jhina Devi v. Hari Datta Decided on May 10, 1978. This view is in conformity with our view as already discussed. 25. Such declaration of title cannot be given in suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. He had taken the same view in the unreported case, Second Appeal No. 166 of 1972-73/Aligarh Smt. Jhina Devi v. Hari Datta Decided on May 10, 1978. This view is in conformity with our view as already discussed. 25. In Amar Nath v. Satya Narain (Second Appeal No. 130 of 1977-78 Jaunpur) decided on March 6, 1981 by a Division Bench of the Board of Revenue consisting of one of us Mr. I.B. Singh and of Mr. R.S. Gupta, Members, it was held that 'an unrecorded co-tenant cannot file a suit for partition only under Section 176 of U.P. Zamindari Abolition and Land Reforms Act without seeking the relief of declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act. 26. The State Government is a necessary party in a declaration suit under Section 229-B of Act I of 1951 and notice to it under Section 80 of the C.P.C. is mandatory. 27. Section 80(1) of the C.P.C. has been renumbered in place of original Section 80 by C.P.C. Amendment Act of 1976 and the words in italics were substituted by that Amendment Act in it, and sub-section (2) and (3) have been inserted by the said Amendment Act of C.P.C. of 1976. Section 80 C.P.C. now runs as follows after Amendment Act of 1976: "80(1). Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the State of Jammu and Kashmir) 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 delivered, to or left at the office of- (a) ...... (b) ...... (bb) ...... (c) ...... (b) ...... (bb) ...... (c) ...... (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1) but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice- (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated." 28. Some relaxation of the provision of Section 80 of the C.P.C. was felt necessary so that a person may not be deprived of opportunity of obtaining an urgent or immediate relief, where such relief was essential. Keeping this in view, sub-section (2) and (3) were added with a view to seeing that the just claims of many persons are not defeated on technical grounds and a suit against the Government or a public officer may not be dismissed merely by reason of any technical defect or error in the notice or any irregularity regarding service of notice etc. so the trend is that notice under Section 80 of the C.P.C. can be given to the State even after the institution of the suit if it has been added or impleaded after the institution of the suit. 29. Sub-section (2) of Section 80 of the C.P.C. provides that even if in an urgent matter, the suit has been instituted without giving notice to the Government or any public officer, the Court shall not grant relief in the suit, whether interim or otherwise, except after giving, to the Government or public officer, as the case may be a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. This further shows that notice to the State, where it is a party in the suit or where it has been made a party after institution of the suit, is compulsory. Notice under Section 80 of the C.P.C. should be given to the State giving reasonable in respect and opportunity of showing cause in respect of the relief prayed for in the suit. 30. The argument that the amendment for converting the division suit also in a declaratory suit under Section 229-B will relate back to the institution of the suit and such converted suit will not be entertain-able for lack of previous notice under Section 80 C.P.C. is not correct, because amendment do not relate back at all to the institution of the suit but normally the amendments are taken to be from the date of the amendment and then limitation is pleaded against it, therefore, such argument is not tenable. 31. Thus, it is clear that in a suit for division of holding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, where the defendant denies the title of the plaintiff who is recorded as a co-tenant, it is not necessary for the plaintiff to get his suit converted into one for declaration and division under Section 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act and we answer question No. 1(a) accordingly. 32. 32. It is also clear that in a suit for division of holding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, where the defendant denies the title of the plaintiff who is not recorded as a co-tenant, it is necessary for the plaintiff to get his suit converted into one for declaration also under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, and we answer question No. 1(b) accordingly. 33. Our answer to question No. (2) is that, if the plaintiff gets his suit for division converted into a suit for declaration also the State has to be given a notice under Section 80 C.P.C. for which reasonable time should be granted. 34. let the record be sent to the learned Memeber concerned, along with aforesaid answers to the questions referred and raised before us, for disposal of the appeal.