JUDGMENT A.A. Halbe, J. Being aggrieved by the judgment and decree passed by the learned Assistant Judge, Beed, in Regular Civil Appeal No. 165/78, whereby the suit of the plaintiffs came to be dismissed, the appellants/ plaintiffs have approached this Court and an argument has been devised on behalf of the appellants/plaintiffs that the record and proceedings involved in several orders recorded by the Respondent/Municipal Council clearly show that the Respondent/Municipal Council has waived its right of ownership on the suit plot Nos. 116 and 80 at Bhaldarpura, Beed. The learned Advocate for the appellants, when being drawn attention to the ground of estoppel being the ground of admission of this appeal, has fairly conceded that he would prefer to dwell on the question of waiver rather than estoppel since the documents, upon which he seeks reliance, show the waiver on the part of the Municipal Council. He had drawn my attention to several orders that have been passed by the Chief Officer, Municipal Council some time in the years 1965-66 and 1975 and has contended that the said authority did not chose the specifically state that the suit plots vest in the Municipal Council. The said authority rather in the first breath was inclined to observe that the suit plots belong to the plaintiff in an application filed by Respondent No. 2 to seek mutation in the name of Respondent No. 2 in the record relating to Plot No. 80. Again in the proceeding in the year 1975, the said Chief Officer did not dispose of the application by observing that the suit plots vest in the Municipal Council and that neither the plaintiffs nor defendant No. 2 (now the Respondent No. 2) could lay any claim on those plots. Even in reply to the notice given about the suit, the Municipal Council did not assert its ownership on those plots, but rather directed the plaintiffs to seek the necessary declaration from the Civil Court. These are the circumstances, according to the learned Advocate for the appellants, which speak volumes in his favour. Even in reply to the notice given about the suit, the Municipal Council did not assert its ownership on those plots, but rather directed the plaintiffs to seek the necessary declaration from the Civil Court. These are the circumstances, according to the learned Advocate for the appellants, which speak volumes in his favour. This is the case of waiver on the part of the Municipal Council and the Municipal Council has voluntarily and intentionally abdicated its right to lay claim over the suit plots and in that light of the matter, these overwhelming circumstances should persuade this Court to restore the judgment and decree passed by the Trial Court and set aside the judgment and decree passed by the learned Appellate Judge. 2. This has been very stoutly countered by the learned Advocate for the Municipal Council. He has contended that looking to the relevant provisions under the Maharashtra Municipalities Act, Chief Officer had really no business to advert upon the question of ownership of the suit plot. He did not have jurisdiction to decide this question. The competent authority was the Collector and nobody else. If in this light, the Chief Officer chooses to pass some orders, those orders cannot bind the Municipal Council. Now, under the above Act, the Chief Officer is a spokesman of the Municipal Council, but independently he cannot dwell upon the question of ownership, more particularly against the Municipal Council. It is the only resolution of the Municipal Council which can give legal and valid effect to the alienations by the Municipal Council. On the question of waiver he has contended that the plea of waiver has not been specifically raised at any stage and at this stage such plea cannot be allowed to be taken in view of the ratio laid down by the several High Courts in various rulings. 3. These arguments can well be considered by having reference to the pleadings between the parties. The suit plots bearing Nos. 80 and 116 situated at Beed, according to the plaintiffs were the ancestral property of original plaintiff Hamid Khan, who died during the pendency of the suit No. 232/75. Hamid Khan was the owner and possessor of those plots. He had put up a garden in plot No. 116 as early as in 1965. The suit plots bearing Nos. 80 and 116 situated at Beed, according to the plaintiffs were the ancestral property of original plaintiff Hamid Khan, who died during the pendency of the suit No. 232/75. Hamid Khan was the owner and possessor of those plots. He had put up a garden in plot No. 116 as early as in 1965. There was a well in that plot and there was a foundation stone which bore the name of the forefather of plaintiff-Hamid Khan and his ancestors. Plot No. 80 was used for keeping agriculture implements and manure. The further contention of the plaintiff is that one Ganpat s/o Bhawani Muluk-defendant No. 2 had filed an application before the Municipal Council, Beed, to record his name in plot No. 80, as according to him, he has purchased that plot from Abdul Kayum under the registered sale deed of 1952. Hamid Khan had filed objection on the ground that Hamid Khan was the owner and possessor of that plot and that Ganpat had no concern whatsoever. Even the vendor of Ganpat had no right on that property and after due enquiry, the Municipal Authority allowed the objection and rejected the petition filed by Ganpat on 18.11.1965. The plaintiff has further urged that defendant/Municipal Council without any enquiry of the plaintiff managed to enter its name in the Municipal record in respect of Plot No. 116 and further managed to enter the name of the Government in the record of plot No. 80 in the revision of 1965-66. This action the part of the Municipal Council was in collusion with some of the persons who were enemically disposed towards the plaintiff Hamid Khan. The plaintiff has emphatically urged that neither the Municipal Council Beed nor the Government had any concern with these plots and accordingly in 1975 he preferred an application to the Municipal Council to rectify the record and to enter his name in those plots. It may be stated that in that proceeding the plaintiff Hamid Khan was directed to file the suit before the Competent Civil Court and seek necessary declaration in that behalf. The plaintiff, therefore, prays that he be declared as the owner of the suit plots and that the defendant/Municipal Council be restrained by an order of injunction from interfering with possession and enjoyment of those plots. The plaintiff, therefore, prays that he be declared as the owner of the suit plots and that the defendant/Municipal Council be restrained by an order of injunction from interfering with possession and enjoyment of those plots. It appears from the record that on plot No. 116 the Municipal Council was attempting to put up latrines but that action on the part of the Municipal Council has been injuncted by the orders of the Court and the learned Advocate for the appellants has contended that this injunction has been in operation. 4. This suit was resisted by the Municipal Council and the Municipal Council denied that plaintiff Hamid Khan or his ancestors were at any time the owners and possessors of the suit plots. The Municipal Council also denied that there existed any well or any foundation stone bearing the name of the forefathers of Hamid Khan. As regards the use of plot No. 80 the Council contended that no agricultural implements were store at any time by Hamid Khan or his successors. Regarding the proceeding of 1965, the Council contended that in that proceeding there was no specific declaration by the Council about the ownership of the plaintiffs over the suit plots. It is also stated that the Municipal Council was not competent to decide any title question. It decided the claim made by the Respondent No. 2 and that claim was rejected on the judgment passed in that proceeding. Regarding the proceeding of 1975, it is contended that the Chief Officer inadvertently directed the plaintiff to approach the Civil Court, but it is pointed out that in that order in the last para, it was clearly revealed that the Municipal Council had asserted its title over the suit plots. The plaintiff Hamid Khan had no right or title over those plots and accordingly the Municipal Council prayed for the dismissal of the suit. Defendant No. 2 Ganpat did not file any written statement and the matter proceeded ex-parte against him. 5. The learned Trial Judge on assessment of documents and oral evidence found favour with the appellants and declared the appellants/plaintiffs as the owners of plot Nos. 80 and 116. The injunctions were imposed on the Municipal Council. The Council was also directed to remove the latrines from plot No. 116. 6. 5. The learned Trial Judge on assessment of documents and oral evidence found favour with the appellants and declared the appellants/plaintiffs as the owners of plot Nos. 80 and 116. The injunctions were imposed on the Municipal Council. The Council was also directed to remove the latrines from plot No. 116. 6. Since this was not to the liking of the Municipal Council, the Municipal Council approached the Appellate Court in Regular Civil Appeal No. 165/78. The learned Appellate Judge was pleased to allow the appeal and set aside the orders of the learned Trial Judge by dismissing the suit. 7. It is this judgment and decree, which is being assailed by the appellants in this appeal. As indicated, the learned Advocate for the appellants has contended that in spite of various documents, the learned Appellate Judge was pleased to ignore them and found that the claim of ownership of the plaintiffs was not at all fortified and accordingly allowed the appeal which needs to be rectified in this appeal. 8. Now, the first question which arises in this appeal is whether the ground of waiver has been made out by the appellants/plaintiffs. It is very clear that in the appeal memo there is ground taken which is about the waiver. My attention is drawn to the plaint filed in the original suit and it is suggested that the plaint can also be read in that light, although there may not be specific averment in that behalf. However, when one reads the plaint, it would be revealed that the question of waiver has not been specifically pleaded. Now, in the first instance, it is stated that so far as plot No. 80 was concerned, one Ganpat filed an application to the Municipal Council to enter his name. Hamid Khan objected to the same and it is averred in the plaint that in that proceeding, the plaintiff was shown as the owner and possessor of the plot. Regarding the proceeding of 1975, it is stated that the plaintiff was not notified before the mutation was made in the name of the Council as well as the Government in both the Courts. Regarding the proceeding of 1975, it is stated that the plaintiff was not notified before the mutation was made in the name of the Council as well as the Government in both the Courts. The further averments also do not indicate clearly that the Municipal Council although aware of its own rights about the ownership of the plot has not come forth with the specific plea that Municipal Council was the owner and that the plea of ownership by the plaintiff cannot be countenanced. 9. Apart from that, when one looks to the orders passed by the Chief Officer it would be difficult to lay down that the Municipal Council abandoned its right. 10. Before probing into the judgments passed by the Chief Officer, it may be proper to advert upon the ratio laid down by the Courts in that behalf. Although the learned Advocate for the appellants has cited number of judgments, the last one on the question of waiver is to be found in Provash Chandra Dalui and Another Vs. Biswanath Banerjee and Another, AIR 1989 SC 1834 in the case of Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr. The Court observed that, "The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. Waiver Is distinct from 'estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped.... "Now, if these observations are taken into consideration it must be clear from the actions of the Municipal Council that the Municipal Council voluntarily and intentionally relinquished the known rights. Now, in this behalf it would be found that in the order, dated 18.11.1965, at Exhibit 50, the Chief Officer has discussed the rival claims of Respondent No. 2 and the plaintiff. In the last paragraph he was pleased to observe from the documents on record that the claim of the present plaintiff appears to be prima facie substantial. But it will have to be borne in mind that application was preferred by Ganpat and the same was rejected. In the last paragraph he was pleased to observe from the documents on record that the claim of the present plaintiff appears to be prima facie substantial. But it will have to be borne in mind that application was preferred by Ganpat and the same was rejected. That order does not at all show that the Chief officer was pleased to direct that the plaintiff be shown as the owner in the Municipal record. The ratio that can be deduced from this order is that the claim of the defendant No. 2 was not proved. He had made an application for mutation in his name, but on assessment of the documents tendered by rival parties, his claim was rejected. By no stretch of imagination, it can be said that the Chief Officer declared plaintiff as the owner of this plots. The observations made in favour of the plaintiff were in the background of the weakness of the claim of the Respondent No. 2. It cannot, therefore, be said that the claim of the plaintiff as owner of the plots was adjudicated upon by the Chief Officer, Apart from that, there is no conscious application on the part of the Chief Officer to show that the Chief Officer was aware of the ownership of the Council over those properties. This is a proceeding which can be said to have been instituted u/s 335 of the Maharashtra Municipalities Act and that proceeding has a limited scope and if in that proceeding the Chief Officer chooses to reject the claim of one party, by no stretch of imagination it can be said that the Chief Officer indirectly dealt with the question of ownership of the Council. Section 335 clearly reads that the Chief Officer can entertain the claims only to facilitate the service, issue, presentation or giving of any notice, bill, summons or such other document upon or to any person and it is with this limited scope that the Chief Officer can go into the question of ownership or the question of occupation of any property. It would be too much to read in this section that the Chief Officer is competent to adjudicate upon the ownership of the particular property, which, as the normal law stands, is within the exclusive domain of the Civil Court. 11. My attention is also drawn to Section 89 of the said Act. It would be too much to read in this section that the Chief Officer is competent to adjudicate upon the ownership of the particular property, which, as the normal law stands, is within the exclusive domain of the Civil Court. 11. My attention is also drawn to Section 89 of the said Act. That provision is regarding the question of any right over the property in the land situated within the municipal limits about its survey. The question can be entertained by Collector and by none else. It would be, therefore, manifestly clear that where the substantive question of title is concerned, the Chief Officer has no authority whatsoever to consider those questions. The powers of the Chief Officer are elucidated in Section 77 of the said Act, and on the thorough reading of that section, it would be clear that no such powers vest in the Chief Officer to consider the question of ownership of the properties situated within the municipal limits. The combined impact of these provisions is manifest and the same is that the Chief Officer has no jurisdiction whatsoever to tread upon the question of ownership of any property. The limited right u/s 335 of the Act is with a view to facilitate the issue of bills, etc. on the tax payer. 12. The order, dated 14.7.1975 in the proceedings instituted under WS/V/1969 also does not contain any averment to show that the plaintiff has been declared as the owner of the suit plots. On the other hand, the Chief Officer was pleased to direct the plaintiff to approach the Civil Court. 13. The learned Advocate for the appellants/plaintiffs has contended that even at this stage the Chief Officer did not make it clear nor explicitly asserted that the rights are vested in the Municipal Council u/s 88 of the Maharashtra Municipalities Act. I am afraid that no such inference can be drawn on reading of the said order. The said order does not at all show that the Chief Officer was pleased to recognize the ownership of the plaintiffs over both these plots. 14. Apart from that, the Municipal Council is an independent identity from the Chief Officer. The Chief Officer is the employee of the Municipal Council. The property vested in the Municipal Council, by no stretch of imagination can be dealt with by the Chief Officer. 14. Apart from that, the Municipal Council is an independent identity from the Chief Officer. The Chief Officer is the employee of the Municipal Council. The property vested in the Municipal Council, by no stretch of imagination can be dealt with by the Chief Officer. It is the Council resolution which can alienate the property of the Municipal Council, and in that light of the matter, it would be too much to say that the above orders tilt in favour of the plaintiffs. The Chief Officer although had more than once opportunity to assert the title of the Municipal Council chose not to do so, but this conduct on the part of the Chief Officer by any reckoning cannot tantamount the waiver on the part of the Municipal Council, which. as indicated is altogether a separate identity. I am, therefore, of the view that the question of waiver cannot be invoked by the appellants in view of the legal bars created under the Maharashtra Municipalities Act. 15. The next question which has been raised by the learned Advocate for the defendant is that this is the first time that the appellants/plaintiffs have raised the question of waiver. In AIR 1933 233 (Privy Council) , in the case of Florrie Edridge and Ors. v. Rustomji Dhanjibhoy Sethna, the Privy Council was pleased to observe that the issue of waiver cannot be dealt with by the Judicial Committee, unless the other party has been afforded an opportunity to adduce the evidence since that plea involves the mixed question of fact and law. Similarly, in S. Mohd. Naim Mohd. Alam Vs. Rouraffic and Far Eastern Ltd., AIR 1960 Cal 146 in the case of Section Mohd. Nairn Mohd. Alamv. Rourajjic and Far Eastern Ltd., the Court was pleased to observe that the case of waiver and implied agreement involves questions of law and fact and in the absence of specific pleading and specific issue, such pleas cannot be allowed to be raised in appeal. In Payyavula Vengamma Vs. Payyavula Kesanna and Others, AIR 1953 SC 21 in the case of Payyavula Vengamma v. Payyavula Kesanna and Ors. the Court in paragraph 13 of the judgment was pleased to observe that the plea about the plaintiff having waived her right to challenge the award could not be raised in appeal when the same was not pleaded by the defendant in the lower Court. the Court in paragraph 13 of the judgment was pleased to observe that the plea about the plaintiff having waived her right to challenge the award could not be raised in appeal when the same was not pleaded by the defendant in the lower Court. The above ratio would clearly lay down that the plea of waiver cannot be raised for the first time in Second Appeal. As indicated, the appellants in their pleadings in the Trial Court did not specifically agitated the question of waiver. No such issue was raised both in the Trial Court as well as the Appellate Court and it is, therefore, felt that the plea of waiver now cannot be entertained. 16. Apart from that, the other infirmity which needs to be mentioned is that plot No. 80 has been recorded in the name of the Government. The Government should have been made a party in the Trial Court since the plaintiff was fully aware that plot No. 80 was recorded in the name of the Government although erroneously or in collusion with the person interested against the plaintiff. It cannot be gain said that the claim against the Government can be decided without the Government being made a party. The other infirmity which would crop in is that such a step can be taken u/s 80 of the Civil Procedure Code, which is not done at any stage during the course of the proceedings, and on that count also the claim in respect of plot No. 80 cannot be determined. 17. For the above reasons, I feel that the appeal is devoid of merit and has to be dismissed with costs. Accordingly, the appeal is dismissed with costs. The judgment and decree passed by the Appellate Judge is hereby confirmed.