S. D. JHA, J. ( 1 ) THIS second appeal by the plaintiff against judgment and decree dated 4-12-1987 passed by the 3rd Additional Judge to the Court of district Judge, Dewas reversing the judgment and decree dated 6-3-1987 dismissing the suit for declaration and injunction was by order dated 1-2-1988 admitted for final hearing on the following substantial questions of law : (1) Whether in the facts and circumstances of the case for redress of nuisance the plaintiff is required to serve a notice under Section 94 of the M. P. Co-operative Societies Act ? (2) Whether in the facts and circumstances of the case an act of nuisance on the part of the defendant could be construed as business of the Society under the M P. Co-operative Societies act ? and (3) Whether in the facts and circumstances of the case the State government is a necessary party when the plaintiff is not aggrieved by the allotment order of the State Government in favour of the defendant ? ( 2 ) ON the date of hearing the plaintiff/appellant prayed for leave to urge the following additional substantial question of law : (4) Whether the finding of the learned lower Appellate Court is perverse in regard to user of adjecent land by plaintiff as passage etc. , for over 30 years ? ( 3 ) APPELLANT/plaintiff (hereinafter called, the plaintiff) filed suit against defendant/respondent (hereinafter called, 'the defendant') for declaration that he had acquired easementary right of way over the land described "a, B, C, D," in map annexed to the plaint and as described in para 2 of the plaint, inasmuch as he had been using the land as a way for access to his house described in para 1 of the plaint either for taking cattle or for driving bullock-cart and taking other agricultural goods, implements and tools for the last 30 years preceding institution of the suit. The defendant proposes illegally to construct a building on the disputed land and abstruct easementary right of way acquired by the plaintiff. The plaintiff had for the purpose on 30-6-1985 fixed and erected poles on the land obstructing the plaintiff from driving his cattle or bullock carts through the disputed lands and hence the suit for declaration of easementary right in favour of the plaintiff and mandatory injunction restraining the defendant giving directions to him, for removing the poles. The plaintiff had for the purpose on 30-6-1985 fixed and erected poles on the land obstructing the plaintiff from driving his cattle or bullock carts through the disputed lands and hence the suit for declaration of easementary right in favour of the plaintiff and mandatory injunction restraining the defendant giving directions to him, for removing the poles. The suit resisted by the defendant. It was urged that the plaintiff had constructed his house on Government land by committing tresspass and encroachment on the same. He had not acquired any easementary right in regard to disputed land. The disputed land has been allotted by the Government of M. P. to the defendant for constructing building and the defendant fixed and erected poles on the same on 13-12-1983 and not 30-6-1985 as alleged. The defendant had left a pathway 5' wide for cattle to j ass. The defendant had raised objection regarding allotment of land to defendant which had been rejected by the Revenue Authorities right up to Revenue Board. The suit was not maintainable for this reason. It was further urged that no notice under Section 94 of the M. P. Co-operative societies Act, 1960 (hereinafter called, 'the Act') have been served on the registrar of Co-operative Societies. The State of Madhya Pradesh is a necessary party in the suit. For all these reasons the defendant prayed for dismissal of the suit. ( 4 ) THE Civil Judge Class I Bagli by judgment and decree dated 6-3-1987 found in favour of the plaintiff and decreed the suit. In appeal by defendant, the 3rd Additional Judge to the Court of District Judge Dewas by the impugned judgment held that in absence of notice under Section 94 of the Act the suit is not maintainable, the State of M. P. is a necessary party and the plaintiff had not acquired easementary right as the house on the plot described in para 1 of the plaint was constructed by him only 14-15 years back. Besides, exclusive use of the disputed land by the plaintiff for right of way was not proved nor was the right of way over the land proved. For all these reasons he found the plaintiff's claim not proved and allowed the appeal and dismissed the suit with costs on plaintiff. Hence the present appeal. Besides, exclusive use of the disputed land by the plaintiff for right of way was not proved nor was the right of way over the land proved. For all these reasons he found the plaintiff's claim not proved and allowed the appeal and dismissed the suit with costs on plaintiff. Hence the present appeal. ( 5 ) AT the hearing of the appeal Shri R. Saboo learned Counsel representing the appellant at the out set referred to his application for additional substantial question of law reproduced at No. 4 above contained in interlocutory application No. 2273/90, Shri Amar Singh, Advocate representing the respondent was prepared to meet the additional ground and therefore Shri saboo was allowed to urge this additional substantial question of law. ( 6 ) SHRI Saboo while not disputing that the defendant is a Co-operative society under the Act submitted that as the proposed construction of building by defendant cannot be said to be relating to or concerned with the business of the Co-operative Society and the petitioner was stranger with whom the defendant-Society had no business transaction and the case was one for redress of nuisance caused by the defendant-Society. Section 94 of the Act would not apply to the present dispute. In support of his argument Shri Saboo relied on a decision of this Court in Ramsingh v. Assistant Registrar, Co-operative societies and another 1973 MPLJ 295 , ( 7 ) PROCEEDING further Shri Saboo submitted that plaintiff was not aggrieved with the allotment of the land made by the State of M. P. in savour of the defendant, and had no grievance, it was therefore, not necessary to join the State of M. P. as a party in the suit. He also submitted that the leteudaat admitted the existence of right of way for the cattle and had for that reason left 5' wide pathway for the cattle. The plaintiff had a right of access to his house from this pathway which would be obstructed by the proposed construction. His right of easement would therefore have to be protected For the purpose he relied on Bharathamatha Desiya Sangam, madhavaram and another v. Roja Sundaram and others AIR 1987 Mad 183 ; K. Sudarsan and others v. The Commissioner, Corporation of Madras and others, AIR 1984 Mad 292 ; and Nathu Lal and others v. Ram Swaroop and others, AIR 1987 Raj 169 . ( 8 ) SHRI Saboo proceeding further submitted that the finding of the first appellate Court that the plaintiff had constructed the house 15 years or 16 years back and the right of way would therefore correspond with this period and he had not acquired easementary right of way was perverse. For the purpose Shri Saboo read out the relevant portions of evidence of the witnesses examined by the parties. He argued that in view of this, the first appellate court ought to have ignored ommission in the statement of the plaintiff made before the Revenue Authorities in statement Ext. D/1 and D/2 as to house having been constructed 30 years before or his having exercised easementary right of way for more than 30 years. Shri Saboo urged that the finding of the trial Court that the plaintiff had acquired easementary right be restored and decree of declaration of such right and mandatory injunction as prayed for be granted. ( 9 ) OPPOSING Shri Saboo's contention Shri Amar Singh learned Counsel representing the plaintiff emphasised that Section 94 of the Act uses expressions "suit" and that inter alia touching the business of the Society. He submitted that the respondent-Society is a dairy and construction of building for the same is in extricably linked with its business. The first appellate Court has found that the construction of the building is related to business of the Society and this could not be interfered with in second appeal. In support of necssity of notice under Section 94 of the Act he relied on a division Bench decision of this Court in Chhotelal v. Dy. Registrar, Cooperative societies 1976 JLJ Note No. 53. He argued that the Registrar of the Co-operative Societies has supervisory powers over Co-operative Societies. Notice served under Section 94 of the Act could lead to settlement of the claim. He submitted that in the facts and circumstances of the case, the decision in Ramsingh's case (supra) was not applicable to the present case. ( 10 ) PROCEEDING further Shri Amarsing submitted that allotment of land to defendant was made in 1983 whereas the prefent suit was filed in 1985. The land admittedly belongs to Government, the plaintiff's claim for declaration and injunction is based on his claim of his having exercised easementary right of way over the disputed land for more than 30 years. The land admittedly belongs to Government, the plaintiff's claim for declaration and injunction is based on his claim of his having exercised easementary right of way over the disputed land for more than 30 years. He pointed out that proceedings for encroachment of land were pending against the plaintiff. Declaration as to easementary claim by the plaintiff necessarily affected the right of the State Government over the land as the State Government had allotted the land to defendant. In the circumstances presence of the State Government before the Court was necessary as a party. In this connection Shri Amarsingh submitted that it is the substance of the suit and not its form which has to be seen. For the purpose he relied on Shamsher singh v. Rajinder Prasad and others, AIR 1973 SC 2384 and Vithoba Bhanji and others v. Vithal Sakroo and others, AIR 1958 Bom 270 . ( 11 ) PROCEEDING further Shri Amarsingh submitted that the evidence on the point of plaintiff's acquisition of easementary right of way or otherwise was fully discussed and taken into consideration by the first appellate Court, in that connection he emphasised that 5' path-way had been left by the defendant which was sufficient for human being or cattle to pass. The plaintiff now raised the claim of bullock-cart's passing over the parth-way and this was missing in earlier statement of the plaintiff Exh. D/1 and D/2 made before the Revenue Authorities. The finding on the point by the first appellate Court as to plaintiff not having exercised the right for requisite 30 years is based on appreciation of evidence and this could not be interfered with in second appeal. For the purpose he relied on Bholaram v Ameerchand, air 1981 SC 1209 . ( 12 ) SHRI Amarsingh also submitted that disputed land before its allotment to the defendant was vacant and waste-land. The use of the same by plaintiff cannot be said to be as of right. Finding on the same is a question of fact and binding in second appeal. For the arguments he relied on Gajo rai and others v. Gaura Devi and others AIR 1960 Pat 498 and Maruji vakhtaji and others v. Kanaji Vakhtji and others, AIR 1953 Sau 39. Finding on the same is a question of fact and binding in second appeal. For the arguments he relied on Gajo rai and others v. Gaura Devi and others AIR 1960 Pat 498 and Maruji vakhtaji and others v. Kanaji Vakhtji and others, AIR 1953 Sau 39. Shri Amarsingh in his submissions also referred to Noor Bux and others v. Abdul Samad, AIR 1957 MP 203 and Manoharlal and another v. Bheerulal and others AIR 1972 Raj 31 . ( 13 ) TAKING up first the IVth question set out above as to plaintiff not having acquired easementary right, the point is discussed by the first appellate court in paras 10, 11 and 12 of the judgment. The first appellate Court has taken note of the witnesses examined by parties as also statement of the plaintiff himself before the Revenue Authorities contained in Exh. D/l and d/2 wherein he had stated that he had constructed his house (adjacent to which present disputed land over which easementary right of way is claimed)14-15 years back and not more than 30 years as was now claimed in the suit. the first appellate Court found the statement that the plaintiff was using disputed land as path-way was claimed unbelievable. Inorder that plaintiff may have acquired easementary right against the State Government to whom the land belongs, under Section 15 of the Indian Easement Act, 1882 the plaintiff should have enjoyed the right of way peaceably and openly without interruption for 30 years. The first appellate Court found that the plaintiff had not enjoyed alleged right for 30 years. Having regard to decision of the Supreme court in Bholaram v. Ammerchand, AIR 1981 SC 1209 this being the finding of fact could not be interfered with in second appeal. The conse-quences flowing from this aspect would be that the plaintiff cannot be said to have acquired easementary right with respect to the disputed land. ( 14 ) IN view of the finding above answers to other questions formulated in the case would appear unnecessary. They are, however, briefly dealt with. ( 15 ) TAKING up the first question formulated as to necessity of notice under Section 94 of the Act on the Registrar, Co-operative Societies before institution of the suit, Section 94 of the Co-operative Societies Act reads as under :"94. Notice necessary in suits. They are, however, briefly dealt with. ( 15 ) TAKING up the first question formulated as to necessity of notice under Section 94 of the Act on the Registrar, Co-operative Societies before institution of the suit, Section 94 of the Co-operative Societies Act reads as under :"94. Notice necessary in suits. No suit shall be instituted against a society or any of its officers in respect of any act touching the constitution, management or business of the Society until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office stating the cause of action the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statements that such notice has been so delivered or left. " ( 16 ) RELYING on Ramsingh's case (supra) Shri Saboo argued that as the construction of building by the defendant/society is a nuisance to plaintiff, it would not be a dispute within the meaning of Section 64 of the Act. This argument itself in view of the Division Bench decision in Chhotelal's case (supra) would make notice under Section 94 of the Act necessary. In the decision, it has been held as follows :"such notice is necessary only when the authority to decide a particular matter is not the Registrar but a Civil Court. The main purpose being such notice required to be given under Section 94 of the Act is that the Registrar has supervisory powers over the societies and if proper notice is given to the Registrar, it may be possible for the Registrar in exercise of supervisory jurisdiction to ensure that a rightful claim is settled and is not required to be taken needlessly to a Civil Court entailing avoidable expenses of co-operative Society. With this object only Section 94 of the act was enacted. Looking to the nature and scheme of the Act, prior notice to Registrar is meaning less when a reference of the dispute is made under Section 64 of the Act". In view of this, the finding of the first appellate Court that the suit was bad tor failure to serve notice under Section 94 of the Act on the Registrar, co-operative Societies must be and is hereby upheld. In view of this, the finding of the first appellate Court that the suit was bad tor failure to serve notice under Section 94 of the Act on the Registrar, co-operative Societies must be and is hereby upheld. ( 17 ) IN view of the answer to question No. 1 above, no answer appears necessary to question No. 2. Regarding question No. 3 the allotment of land in favour of the defendant was made in the year 1983. The plaintiff, however, claimed easementary right over the land and this period would cover not only the period after 1983 but the period prior to it when the State Government, was owner of the land. From the record it is not possible to make out under what rights the land has been allotted to the defendant lease, licence or absolutely. Be whatever it may, the claim for declaration and injunction made by the plaintiff is based on his peaceable and open enjoyment of right of way over the disputed land for 30 years. The allotment to defendant of the land has been only for the last 8 years. It was necessary for the plaintiff to establish that within two years next before the institution of the suit he had peaceably and openly enjoyed the right of way over the land for 30 years as the land belonged to the Government. The finding in favour of the plaintiff as to his having acquired easementary right would be finding against the Government which could not be given in absence of the State of M. P. being a party in the suit. The finding of the first appellate Court on the point would have to be, therefore, upheld. ( 18 ) HAVING no force the appeal is dismissed with costs, on the plaintiff/ appellants. Pleader's fee according to schedule or certificate whichever is less, if certified. A decree be drawn up accordingly. Appeal dismissed. .