JUDGMENT : B.L. Yadav, J. By this petition under Article 226 of the Constitution, the Petitioner has prayed for a writ of certiorari quashing the order dated 10-3-1977 passed by the Board of Revenue in a suit u/s 209 of the UP ZA and LR Act (hereinafter referred to as the Act) filed by the Petitioner alongwith Om Prakash for ejectment of Respondents Nos. 4 and 5 from plot Nos. 11/6/4 area about 23 bighas situate in village Pandri Jagir, Pargana Richa, Tahsil Baheri, district Bareilly. The suit was filed by making allegations that Plaintiff purchased the land from Hari Raj Singh by sale deed dated 22-6-1966 and came in possession over the land and continued in possession peacefully, but the Respondents Nos. 4 and 5 i.e. Defendants Nos. 1 and 2 took possession otherwise than in accordance with law and against the consent of the Petitioner in 1375-F. The relief for damages was also claimed. The Respondents Nos. 4 and 5 contested the suit alleging that the Plaintiffs were not bhumidhars and the sale deed was illegal and the land was not identifiable on the spot and that the Defendants were not trespassers, rather they have acquired sirdari rights. It may also be stated that the Defendants did not take any objection about the validity of the notice u/s 80, Code of Civil Procedure. 2. The State Government, however, filed a separate statement denying the Plaintiffs claim and also took an objection that notice u/s 80, CPC was not given to or served on the State and that the suit was not maintainable. 3. The trial court framed issue No. 1 on the ground whether Plaintiff had served notice on the State and in case notice has not been served what is its effect. This issue was, however, replied to the effect that although the State Government has filed the written statement but it did not contest the matter further and hence the validity of the notice u/s 80, CPC does not have any effect on the case. The suit was on merits decreed by the judgment and order dated 29-9-1972. 4. The Respondents Nos. The suit was on merits decreed by the judgment and order dated 29-9-1972. 4. The Respondents Nos. 4 and S preferred a first appeal which was dismissed as regards the other points, but it was held that notice u/s 80, CPC was mandatory and on account of the absence of the notice he suit was defective and liable to be dismissed under Order VII, Rule 11-D of the Code of Civil Procedure. In this view of the matter the appeal was allowed and the suit of the Petitioner was dismissed. The second appeal filed by the Petitioner also failed. It is against the judgment of the Board of Revenue dated 10-3-1977 and of the Additional Commissioner dated 18-6-1973 that the present petition has been filed. 5. Sri N.S. Singhal appearing for the Petitioner has urged that even though the State of U.P. was made a party and has filed written statement making objection that no notice was served on the State, but the State did not lead any evidence in support of the plea taken in the written statement. As regards want of notice u/s 80, CPC it was decided by the trial court on issue No. 1 that the State did not contest the suit after filing written statement, hence the want of proper notice u/s 80, CPC cannot be taken by the Respondents Nos. 4 and 5 particularly when the State of U.P. has been made a party to the petition, but it has chosen not to contest the petition The learned Counsel further urged that even though the provision of delivering notice and serving the same on the State as; contemplated by Section 80, CPC may be mandatory, but the State has chosen not to lead any evidence and absented after filing the written statement, hence it has waived the notice u/s 80, CPC and that objection cannot be taken by the Respondents Nos. 4 and 5. He relied upon Nirjhin Kumar v. Gram Samuj 1980 RD 164 a Single Judge decision of this Court where it has been held that where The State of U.P. did not take the plea about want of notice before the trial court and the suit was decreed ex-parte against the State of U.P. and no appeal was filed by the State before the lower appellate court. Hence in the circumstances the plea in regard to want of notice has been waived by the State of U.P. and now it was not open to the State of U.P. or Gram Samaj to take up this plea at the second appellate stage. He further relied upon Banarsi Ram's case 1964 ALJ 237 and Raja v. Pas Koery 1964 ALJ 969 and also reliance was placed on Ishtiyaq Husain Abbas Husain Vs. Zafrul Islam Afzal Husain and Others, AIR 1969 All 161 , and also reliance was placed on District Board Banaras v. Chorhu Rai AIR 1956 All. 860 and also reliance was placed on Julal Mandal v. Union of India AIR 1947 PC 197 . He further relied upon a judgment dated 19-7-1976 in writ petition No. 789 of 1972 (decided by Hoa'ble Mr. Justice Banerji) relying upon the relevant authorities pertaining to the want of notice u/s 80 CPC it was held that the State Government or the public authority in whose favour the notice can be given can very well choose to waive the notice and it is not open to private parties to raise that objection. It is open to the party protected by Section 80 CPC to waive his rights and the waiver binds the rest of the parties. 6. Sri Shripat Narain Singh, appearing for the Respondents urged that the service of notice on the State was mandatory as in a suit u/s 209, U.P. Z.A. and L.R. Act the State of U.P. was a necessary party in view of the provisions of Section 209(2) as amended by U.P. Act No. XXI of 1961. He relied on the The State of Madras Vs. C.P. Agencies and Another, AIR 1960 SC 1309 , Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, (1970) 3 SCC 716 , Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), AIR 1958 SC 274 , and also on Sarajubala Devi Vs. The Chairman and Commissioner of Chaibassa Municipality, AIR 1976 Patna 243 . 7. I have considered the arguments advanced by the counsel for either side. Rachawwa Gugwad and Others, (1970) 3 SCC 716 , Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), AIR 1958 SC 274 , and also on Sarajubala Devi Vs. The Chairman and Commissioner of Chaibassa Municipality, AIR 1976 Patna 243 . 7. I have considered the arguments advanced by the counsel for either side. In District Judge Banars v. Chorhu Rai supra, a Division Bench of this Court has held that it is always open to a Defendant for whose benefit notice 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 the same was raised in the first or second appeal, it would be deemed that the same have been waived. Similar view has been taken in Ishtiaq Hussain v. Zafrul Islam, supra where Hon'ble S.K. Verma, J. as he then was, held that no doubt Section 80 CPC is mandatory and notice has to be issued and served on the State before filing a suit, but this plea can be waived also. Similar is the view expressed in Hirachand Himatlal Marwadi Vs. Kashinath Thakurji Jadhav, AIR 1942 Bom 339, where a Division Bench of the Bombay High Court held that a party in whose favour Section 80 CPC prescribed notice to be given, can waive his right to the same. Similar is the view taken in Dhyan Singh Shobha Singh v. Union of India, supra where the Supreme Court held that no doubt Section 80 CPC has to be strictly complied with, but nevertheless notice should not be scrutinized in a pedantic manner completely divorced from common sense. In that case the controversy was that in the notice u/s 80 CPC only a sum of Rs. 3500/- was claimed, but later on it was found that the Plaintiff was entitled to more than the sum of Rs. 3500/-. The High Court did not accept the claim of the Plaintiff on the ground that he did not claim any amount more than Rs. 3500/-. In that reference the Supreme Court held that the approach of the High Court was erroneous. If was further held in Chandulal Vadilal Vs. 3500/-. The High Court did not accept the claim of the Plaintiff on the ground that he did not claim any amount more than Rs. 3500/-. In that reference the Supreme Court held that the approach of the High Court was erroneous. If was further held in Chandulal Vadilal Vs. Government of The Province of Bombay, AIR 1943 Bom 138, that one must construe Section 80 CPC with some regard to common sense and with the object to which it appears to have been based. Further it has been held in Raja v. Das Koery (supra) by Hon'ble Gangeshwar Prasad J. that it is open to the authority concerned for whose benefit the notice has been issued to waive it also. The natural conclusion is that it is not open to other party (i.e. the Respondents Nos. 4 and 5 in the instant case) to urge that want of notice against maintainability of the suit. It is the authority for whose benefit Section 80 has been enacted can raise an objection about want of notice and press the same. Similar view has been taken by Hon'ble Katju, J. in Banarasi Ram v. D. Ahir 1965 ALJ 23 . In Julal Mandal Vs. The Union of India (UOI) and Others, AIR 1978 Patna 42, it was held in similar circumstances that if an issue was framed by the trial court about the effect of want of notice u/s 80 CPC and the issue was not pressed by the Government, it means that the Government has waived the right to press the same and it was a clear case of waiver and no other private party can press the said issue in respect of want of notice. Similarly in AIR 1947 PC page 197, it has been held that the provision of Section 80 CPC are mandatory no doubt, but it does not mean that the notice meant for the benefit of the authorities cannot be waived by the said authorities. Similarly in AIR 1947 PC page 197, it has been held that the provision of Section 80 CPC are mandatory no doubt, but it does not mean that the notice meant for the benefit of the authorities cannot be waived by the said authorities. In the instant case the State of U.P. has filed a written statement and an issue was also framed on the point but it did not press the issue and the suit was decreed even against the State of U.P. The State did not file first or second appeal, hence it is clear that the State has waived the plea of notice u/s 80 CPC It is open to the Respondents Nos. 4 and 5 to raise that plea as no prejudice has been caused to them. 8. As regards the decision of the Supreme Court case in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, (supra), relied upon by the Respondents, it is stated that the Supreme Court at page 446, under para 10, has held, the relevant portion is extracted as under: No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it, but if it finds that the plaint on the face of it is barred by any law, if for instance the Plaintiff's cause of action is against ft Government and the plaint does not show that notice u/s 80 of the CPC claiming relief was served in terms of the said section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice u/s 80 was necessary. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice u/s 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder should not operate as res-judicata in a subsequent suit where the identical questions arise for determination between the same parties. The aforesaid dictum of the Supreme Court evinces that where a relief is claimed by the Plaintiff against the State Government, in that event the delivering of notice is mandatory and in case it has not been done the plaint can be rejected for want of notice, but where no relief has been claimed against the State, the plaint cannot be rejected for want of notice and in that case it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice u/s 80 CPC was necessary and the plaint cannot be dismissed under Order VII, Rule II Code of Civil Procedure. In the instant case also as the relief was not claimed by the Petitioner against the State Government, hence the plaint need not be rejected under Order VII, Rule 11 Code of Civil Procedure. In the The State of Madras Vs. C.P. Agencies and Another, (supra), it has been held that Section 80 is express, explicit and mandatory and admits of no implications or exceptions. The object of the section is manifestly to give the Government or the Public Officer sufficient notice of the case which is proposed to be brought against it. It is just to enable the State Government or the Public Officer to consider the position and decide for itself or himself whether the claim of the Plaintiff should be accepted or resisted. It is just to enable the State Government or the Public Officer to consider the position and decide for itself or himself whether the claim of the Plaintiff should be accepted or resisted. In that connection it is necessary to inform the State Government or the public officer in respect of the nature of the suit proposed to be filed against it and the facts on which the claim is founded and the precise reliefs asked for. In the instant case no doubt the State Government was made a party but no relief or claim against it nor any interest of the State was involved. The land has not even vested in the State of U.P. or the Gaon Sabha. The State of U.P. was properly served and it has filed written statement also and taken the plea about want of notice, but it did not press that issue nor lead any evidence in support of the plea taken. These facts make it abundantly clear that the State has chosen to waive the plea of notice. Julal Mandal Vs. The Union of India (UOI) and Others, (supra), is a later decision than Shanti Pada Ganguli v. Union of India AIR 1967 Pat 74, supra and I am of the view that AIR 678 Pat 42, is the relevant authority on the subject under similar situation as in the present case where the issue was not pressed by the State Government about want of notice and later on the Government did not file any appeal and it was held by the Patna High Court that the notice would be deemed to have waived by the State Government. 9. In the instant case even though an issue was framed on the want of notice u/s 80 CPC and its effect but the said issue was not pressed by the State Government, nor any evidence was led in support of the said issue. Even though the suit was decreed by the trial court and the said decree was against the State Government also, but no first or second appeal was filed by the State Government either before the Additional Commissioner or the Board of Revenue and the contest remain solely between the Petitioner on one side and the Respondent Nos. 4 and 5 on the other. 4 and 5 on the other. While considering the merits of the case, the Additional Commissioner has held under Annexure 11 (on page 31 of the paper book) that so far as the merit of the appeal preferred by Jaswant Singh etc. (Respondent Nos. 4 and 5) was concerned, it was without any substance. The first appeal of the Respondents Nos. 4 and 5 was allowed by the Additional Commissioner just on the ground that notice was not given u/s 80 CPC to the State Government, hence the plaint was dismissed under Order VII, Rule 11 Code of Civil Procedure. But in view of the ratio decidendi of the decisions referred to above, it is clear that where no relief has been claimed against the State Government, it is not necessary to serve the notice on the State Government and particularly in a case where the issue was framed on the point but the State Government did not lead any evidence and even though the suit was decreed no first or second appeal was filed by the State Government nor that issue was raised subsequently before higher authorities. In this view of the matter it is clear that the Board of Revenue and the Additional Commissioner committed error on the face of record in holding that the plaint should be rejected under Order VII, Rule 11 CPC particularly in a case like the present one where no relief was claimed against the State Government. 10. For the reasons aforesaid the plaint was illegally rejected under Order VII, Rule 11 CPC and the order passed by the Respondents Nos. 1 and 2 cannot be sustained. 11. In view of the discussion aforesaid, I allow the petition and issue a writ of certiorari quashing the judgment dated 10-3-1977 passed by the Board of Revenue and the judgment dated 18-6-1973 passed by the Additional Commissioner (in so far as it is in respect of the validity of the notice u/s 80 Code of Civil Procedure). The decision of the trial court dated 29-9-1972 is maintained. Under the circumstances of the case there shall be no order as to costs.