Judgment 1. This is a judgment of reversal and is directed against the judgment and decree dated 10.185 passed by the learned Subordinate Judge, Katwa, in Title Appeal No.- 154 of 1984......reversing those of the learned Munsif, Second Court, Katwa, in Title Suit no. 88 of 1976. 2. The plaintiff-appellant brought the suit for declaration of title to the suit properties, as mentioned in the Ka schedule to the plaint and for permanent injunction restraining the defendants-respondents from interfering with the peaceful possession of the plaintiff-appellant. The case of the plaintiff was, in brief, that he purchased the suit properties and some of them were recorded erroneously in the record of rights in favour of the Katwa Municipality and that the same could not vest in the State of West Bengal. The plaintiff claimed to have subsisting right title and interest in the property in spite of the wrong recording and prayed for declaration of title and permanent injunction. . 3. The defendant-respondent no. 1, State of West Bengal, no. 2 JLRO, Katwa, together with the Commissioners of Katwa Municipality (respondent no. 3), who were added subsequently pursuant to an order of remand, contested the suit by filing a written statement asserting that the suit property had vested in the State and that the plaintiff had no subsisting interest therein, 4. The suit was initially decreed by the trial court in part. Against that judgment and decree the defen0ants respondents nos. 1 and 2. namely, the State of West Bengal and the JLRO preferred an appeal. The respondent no. 3, Commissioners of Katwp Ml1nicipality, did not prefer any appeal. 5. The first appellate court disposed of the appeal only on the preliminary point that the suit was not maintainable in view of the non-service of the statutory notice under s 535 of the Bengal Municipal Act, against the defendants-respondent no. 3, that is the Commissioners of Katwa Municipality. The question whether the plaintiff appellant had right, title, interest and possession in the suit property which he claimed to have acquired by virtue of his purchase was left open. In other words, it may be stated, risking repetition, as held by that court, the suit and the appeal following therefrom were bound to fail in view of the non-service of the notice under s. 535 of the Bengal Municipal Act. In other words, it may be stated, risking repetition, as held by that court, the suit and the appeal following therefrom were bound to fail in view of the non-service of the notice under s. 535 of the Bengal Municipal Act. The sum and substance of the reasoning of the learned' first appellate court is that s. 535 of the Bengal Municipal Act, contemplates that no suit or other legal proceeding can be brought against the Commissioners of any municipality or its officers without service of such notice, as provided therein, and. admittedly, no notice having been served preceding the suit, the suit is not maintainable. The it learned Subordinate Judge has further observed that if really the plaintiff-appellant wants relief against the Katwa Municipality, he must serve a notice, as stated, and that a regular suit can be brought on the expiry of the statutory period. In that view of the matter, and in the absence of such notice, he found the suit to be not maintainable. 6. It has been urged by Mr. R. N. Mitra, learned Advocate appearing for the appellant that such contention of the learned Judge is unsustainable in law. In assailing the judgment of the first appellate court Mr. Mitra has urged that this question of the suit being not maintainable for non-service of a mandatory notice is to be looked into in it's two aspects. It has been contended that such objection regarding non-maintainability of the suit for non-service of notice can only be raised by the party upon whom such statutory notice is to be •served that is, the Commissioners of the municipality. To this connection he has further contended that this objection cannot be raised by any other party although they are co-defendants in the said suit. Secondly, it has been contended that if it can be gathered' from the facts and circumstances of the case that such notice has actually been waived by the party concerned, then in that case service of such notice can be dispensed with. Mr. Mitra, in support of such contention, has referred to and relied upon two decisions. The first one is reported in AIR 1981 Bom. page 394 (Vasant Ambadas Pandit v. Bombay Municipal Corporation & ors). Mr. Mitra, in support of such contention, has referred to and relied upon two decisions. The first one is reported in AIR 1981 Bom. page 394 (Vasant Ambadas Pandit v. Bombay Municipal Corporation & ors). In this Bombay decision, which was also a Full Bench one, it was observed that no suit can be instituted without service of notice if such service of notice is required statutorily as a condition precedent. But this being a mere procedural requirement the said notice does not go to the root of the jurisdiction in the true sense and that the same is capable of being waived by the defendant and on such waiver, the court has jurisdiction to Entertain and try the suit. In the case referred to. a suit was brought against' the Municipal Corporation of Bombay in the City Civil Court at Bombay Although in the written statement in that suit the defendant no. 1, the Corporation, raised an objection that the suit was not maintainable for want of non-service of statutory notice under relevant section of Bombay Municipal Corporation Act, such service of notice was waived by making a further statement that to avoid delay the defendants were advised to waive objection. The question arose whether there can be waiver of such notice which was required statutorily as a condition precedent. Different decisions of different Courts including that of the Privy Council were referred to in that connection and the analogy of a notice under s. 80 of the CPC was also considered in that connection. It was observed by the Privy Council in its decision reported in AIR 1947 PC page 199, that such a notice might be waived by the authority for whose benefit they were provided. On fin analysis of the decisions referred to and discussed in that connection, the Full Bench came to the decision that such notice can be waived by the defendant and the Court will have ample jurisdiction to entertain a suit once it is found from the different acts and conduct of the parties that such notice was really waived. 7. There is another decision reported in AIR 1969 Ker. page 280 (Karakhu Karthiayani Pillai Narayani Pillai & ors. 7. There is another decision reported in AIR 1969 Ker. page 280 (Karakhu Karthiayani Pillai Narayani Pillai & ors. v, Neela Manta Pillai and anr.) The Court in this case has endorsed the same principle observing that it is open to the parties protected by a statutory notice to waive its rights, but such waiver can only be done by the party concerned and will not bind the rest of the other parties. A catena of relevant decisions was considered by the learned Judge of Kerala High Court in coming to his conclusion on this point including a Bench decision of this Court in ILR 31 Cat. IT9 (Gobinda Chandra Saha v, Hemendra Kumari Debi) by Mr. Justice Ashutosh Mookerjee observing that the Secretary of State was the necessary party who could take the objection for whose benefit the notice is intended', In other words, it was observed in the decision referred to that the other party who were not protected by the service of such notice cannot raise any such objection. In that event, it would offend the principle of 'Tabooing defence justertii'. 8. On consideration of the principles enuncated in the decisions, cited above, it may be stated that the Commissioners of the Municipality, although pleaded in the written statement, did not actually, press any objection on that score as it appears from the judgment of the court below. The issue regarding maintainability of the suit was not pressed at all before the trial court. Even the State of West Bengal did not press any such objection at that stage. It may al-o be stated that the defendant-respondent no. 3, the Commissioners of Katwa Municipality did not prefer any appeal at all raising such objection before the first appellate court. So, the other respondents in view of the principle already stated, cannot raise any such objection, as such notice under Bengal Municipal Act has nothing to do with them. It can be said, therefore, that such objection regarding non-service of notice was actually waived by the respondent no. 3, the Commissioners of Katwa Municipality. The State of west Bengal preferring the first appeal therefore could not raise any objection on that score before the first appellate court. The learned first appellate court, accordingly was entirely wrong in deciding and disposing of the suit on such question without going into the merit of the appeal on other points. 3, the Commissioners of Katwa Municipality. The State of west Bengal preferring the first appeal therefore could not raise any objection on that score before the first appellate court. The learned first appellate court, accordingly was entirely wrong in deciding and disposing of the suit on such question without going into the merit of the appeal on other points. There is no reason therefore, to sustain this finding of the first appellate court and the same should be set aside and the appeal should be sent back on remand to the first appellate court for a decision on merit. It may be stated incidentally that Mr. B K. Sinha, learned Advocate appearing on behalf of the State of West Bengal and other respondent has also fairly conceded that the appeal should not have been disposed of only on the preliminary objection leaving other issues open. 9. In the result, the appeal is allowed, the judgment and decree of the first appellate court are set aside and the matter is sent back on remand to that court for a rehearing of the appeal on all other points excepting the point of notice which is found in favour of the plaintiff-appellant. No formal decree need be drawn in this appeal. There will he no order as to costs. Appeal allowed case remanded for decision on merit.