H. N. TILHARI, J. ( 1 ) THIS is plaintiffs second appeal from the judgment and decree dated 13-1-1984, delivered by Civil Judge, Raichur (B. K. Kanavi) in Civil Regular Appeal No. 13 of 1982, arising out of judgment and decree dated 16-1-1982, passed by the Munsiff, Devadurga in O. S. No. 32 of 1980. The Lower Appellate Court by the above judgment and decree dated 13-1-1984, allowed the 1st defendant's civil regular appeal and set aside the judgment and decree of the Trial Court, that is of learned Munsiff, dated 16-1-1982, in the suit and dismissed the plaintiffs claim in the suit which had originally been decreed by the Trial Court. ( 2 ) THE plaintiff-appellant had filed the suit for declaration oftitle as owner of 27 tamarind trees situate at Survey No. 98 in Nizampet. ( 3 ) THE plaintiffs case is that trees in dispute which are 27 in number had been purchased by the father of the plaintiff- appellant by registered sale deeds in the Fisli year 1301. The sale deeds are Exs. P-1, P-2 and P-3, on the record. Plaintiffs further case is that plaintiffs father, after having purchased, continued in possession and user of the usufruct of the trees and had got plucking right of the fruits of those tamarind trees. That on October 9th, 1980, Town Municipal Council sold these trees for a sum of Rs. 2200/- in favour of 2nd defendant-respondent 2. It may be mentioned that Town Municipal Council is 1st defendant- (respondent 1) in the appeal. That the 1st defendant- (respondent 1) had no right, title or interest in the trees nor could it sell, either the trees or right to pluck the fruits of the trees in favour of 2nd defendant. That the action of the 1st defendant- (respondent 1) had created clouds on the right and title of the plaintiff-appellant and defendant 2, has started threatening to interfere with the plaintiffs right to take usufruct of tamarind trees. The need for filing the suit for declaration and for injunction as such did arise and so, the plaintiff-appellant filed the suit for declaration to the effect that plaintiff has been the owner in possession of 27 tamarind trees referred above and defendant 2 had got no right to take the usufruct or fruits from the tamarind trees nor defendant 1 could transfer the same to defendant 2. The plaintiff also claimed decree for injunction restraining the defendants from plucking the fruits from the tamarind trees. The plaintiff also prayed for decree for injunction to the effect that defendants be restrained from interfering with the plaintiffs possession and enjoyment of the trees. ( 4 ) THE defendant contested the plaintiffs suit. The defendant sdenied the plaintiffs title to the trees. They alleged that plaintiff had no right, interest or title in the trees. The defendants further alleged that Survey No. 98 and trees in Nizampet belonged to Government-defendant 1 and as such, defendant 1 had been entitled to sell the right, interest or title of the trees in favour of defendant 2, as well right to take Imli fruit or product. Defendant 2, in the written statement further claimed that he was a bona fide purchaser for value. ( 5 ) THE Trial Court on the basis of the pleadings of the parties, framed the following issues:1. Whether plaintiff proves that he is the owner and possessor of the suit tamarind trees in Survey No. 98 of Sasavigere and in the limits of Nizampet ? 2. Whether the plaintiff proves that he is in lawful possession of the suit trees at the time of filing the suit ? 3. Whether the plaintiff proves that the 1st defendant has no locus standi to auction the suit trees ? 4. Whether the plaintiff proves the cause of action for the suit ? 5. Whether Court fee paid is sufficient under Section 24 (b) of the Karnataka Court Fee and Suits Valuation act, 1958 ? ( 6 ) WHETHER suit is barred by limitation ? ( 7 ) WHAT order or decree ?6. The Trial Court answered Issue Nos. 1 to 6 in the affirmative and held that the plaintiff proved to be the owner in possession of the tamarind trees in suit as well as in lawful possession of those trees at the time of filing the suit. The Trial court Held the suit to be within limitation and that plaintiff has established the cause of action as it has been proved that defendants have no locus standi to auction the trees. With these findings, the Trial Court decreed the plaintiffs suit and granted the relief as claimed. 7. The Trial court Held the suit to be within limitation and that plaintiff has established the cause of action as it has been proved that defendants have no locus standi to auction the trees. With these findings, the Trial Court decreed the plaintiffs suit and granted the relief as claimed. 7. Feeling aggrieved from the Trial Court's judgment and decree, the 1st defendant, that is, the Town Municipal Council preferred the Regular First Civil Appeal No. 13 of 1982. The lower Appellate Court allowed the 1st defendant's appeal and set aside the judgment and decree of the Trial Court and dismissed the plaintiffs claim in the suit in toto. The lower Appellate Court held that plaintiffs suit was not maintainable on account of the fact that the plaintiff had not given or issued notice as required under Section 284 of the Karnataka Municipalities Act, 1964. The lower Appellate Court further held that the trees stand on the paramboke land which has been included in the Municipal limits of Devadurga. The paramboke land is the Government land. The lower Appellate Court took the view that the government land came within the Municipal area and was included within the Municipal limits, the land did belong to the municipality. It further held that though no doubt, Exs. P-1 to p-3 are 30 years old, but, the trees are situate at Survey No. 98, which is paramboke land and which lies now within the limits of the Devadurga Town Municipal Council, Devadurga, as such, the Municipality-respondent 1 became the owner of the area or the land including the trees standing thereon and as the municipality became the owner of the area and the tree standing on that land, the Municipality in question was competent to auction the crop of the trees to any person. Taking this view, the learned lower Appellate Court held that the plaintiff has failed to prove his title to the trees and therefore, the plaintiff has not been entitled to decree, apart from the fact that the suit was not maintainable in view of non-issuance of notice as required under section 284 of the Karnataka Municipalities Act, 1964. With these findings, the lower Appellate Court allowed the appeal and set aside the Trial Court's decree, whereby, the Trial Court had decreed the plaintiffs suit. With these findings, the lower Appellate Court allowed the appeal and set aside the Trial Court's decree, whereby, the Trial Court had decreed the plaintiffs suit. ( 8 ) THAT having felt aggrieved from the judgment and decree of the lower Appellate Court, the plaintiff has come up in second appeal before this Court. ( 9 ) ON behalf of the appellant, Sri Jayavittal Kolar, learned Counsel urged that the learned lower Appellate committed substantial error of law in setting aside the Trial Court's decree and in holding the suit to be not maintainable for want of notice under Section 284 of the Karnataka Municipalities Act, 1964, as no such plea was taken in the written statement on behalf of defendants 1 and 2, challenging the maintainability of the suit on the ground that no prior notice had been issued or given by the plaintiff to the defendants. Further, the learned Counsel submitted that the plea based under Section 284 of the Act not only had not been raised in the written statement, but, no issue was pressed at the stage of trial nor was any argument addressed on the point during the course of trial of the suit and as such, it was not open to the defendants to raise that plea, that once that plea had been waived by the defendants and the suit had been tried and decreed in favour of the plaintiff-appellant, it was not open to the defendants to raise that plea at the stage of appeal. Therefore, lower Appellate Court committed error of law in entertaining that plea. In this connection, learned Counsel for the appellant invited my attention to the decision of their lordships of the Privy Council in Mudanna Virayya v Mudanna adenna and Others. He also relied on another decision of the privy Council with reference to Section 80 of the C. P. C. and the doctrine of waiver and estoppel, namely, Vellayan Chettiar and others v Government of the Province of Madras and Another. The learned Counsel for the appellant also placed reliance on the decision of the Allahabad High Court in Suraj Bhan and Another v Executive Engineer and Another and made reference to the decision of the Full Bench of the High Court of Bombay in the case of Vasant Ambadas Pandit v Bombay Municipal corporation and Others, in support of his contention. The learned Counsel for the appellant further contended that the learned lower Appellate Court's finding to the effect that the plaintiff has failed to prove his title and possession of the 27 tamarind trees also suffers from error of law, as the learned lower Appellate Court failed to apply the presumption applicable to the three sale deeds of 1301 Fisli, under Section 90 of the indian Evidence Act. He submitted that in view of the three transfer deeds which are more than 30 years old, the property in dispute had been purchased by the father of the plaintiff-appellant, namely, right to pluck the fruits, namely, tamarind fruits from the tamarind trees not the trees themselves. He submitted that once he had purchased the right to pluck the trees, it could not be transferred to anyone else. None appeared on behalf of the respondents. ( 10 ) I have applied my mind to the contentions of the learned Counsel for the appellant. I have gone through the written statement of both the defendants. No doubt, learned Counsel for the appellant is correct in his submission that no such plea had been raised in their written statements to the effect that no notice under Section 284 of the Karnataka Municipalities Act, had been issued by the plaintiff before filing the suit nor any such plea had been raised to the effect that the present suit is not maintainable for want of notice prescribed under Section 284 of the Act. Notice is intended to be given to the Municipality to make it know the claim of the plaintiff and to enable it, within a period of two months as prescribed in the notice after considering the matter and if it thinks it proper to settle the matter outside the Court. Really, this notice is for the benefit of the defendants that during that period, they can settle the matter outside the Court. I do not mean to say that this requirement is not mandatory that notice should be given before filing the suit. Really, this notice is for the benefit of the defendants that during that period, they can settle the matter outside the Court. I do not mean to say that this requirement is not mandatory that notice should be given before filing the suit. The position of law is that before filing a suit against Government or the Municipal Authorities, notice should be given to the 1st defendant, that is, the Government or the municipal Authority under Section 80, C. P. C. or under Section 284 of the Act and if a notice has not been given, it is open to the defendants to raise the plea that the suit is not maintainable. When it is for the benefit of the defendants as has been held, it is open to the defendants to waive that plea and right of notice also and there is no reason why the defendants may not have the right to waive that plea. Waiver is a question of fact as has been held in the case of Vellayan Chettiar, supra. ( 11 ) IN the present case, there appears to be waiver. If the defendants wanted to settle the matter outside and wanted the suit not to proceed, particularly, when the defendants were deprived of opportunity of availing that period for settlement outside the Court, It was open and it was the duty of the defendants, to have raised that plea. The defendant in the present case did not raise the plea neither in the Trial Court nor did press any issue during the course of trial nor was any argument advanced during the course of trial on behalf of the defendants and they allowed the suit to proceed and to be tried on merits. It is only once the suit had already been decreed then at the appellate stage, the defendants filed the appeal on the ground that the suit was not maintainable in view of Section 284 of the Act. In my opinion, applying the principle of law as laid down in Mudanna's case, supra, the own conduct of the 1st defendant amounted to nothing but waiver of that defence plea based under Section 284 of the Act and once the plea was waived, neither it was open to the defendant, i. e. appellant before 1st Appellate Court to raise that plea nor was the lower appellate Court was justified in entertaining the same. When I so observe, I find support from the decision of the Allahabad high Court in Suraj Bhan's case, supra, which had been referred above on which reliance had been placed by the learned Counsel for the appellant as well as from the Full Bench decision, of the bombay High Court in the case of Vasant Ambadas case, supra, referred to above. ( 12 ) THUS considered in my opinion, the first contention has got the substance and in my opinion, it has rightly been contended that the lower Appellate Court has not been quite justified in permitting the 1st defendant to raise that plea which does not supports the matter, until and unless plaintiff proves his title to the trees in question. Even for the moment, if it be taken that Exs. P-1, P-2 and P-3 allowed the plaintiff-appellant to enjoy the usufructs of the trees which had been transferred in favour of the plaintiff-appellant's father. Usufructs from the trees come out every year. The usufructs coming out of the trees every year is a new property. The admitted position is that trees in question at Survey No. 98 of Sasigere and rest of the trees are situate in Nizampet. Both of these trees are really situate on government land Paramboke land. The land really belonged to the Government and later on in 1946, the area was declared to be Municipal area and the Municipal Authority of Devadurga was created. When this Government land on which these trees were standing really did not belong to the appellant and trees were on the land belonging to the Government, on the creation of the Municipal Authority in Devadurga and including that area within the limits of Municipal Authority of Devadurga, the government land became the property of the Municipality with trees standing thereon. That being the position in my opinion, each year's fresh crop or product was distinct property or new property and the Municipal Authority could well auction the right to collect that usufructs from tamarind trees to any person on hire basis or the like and as such, when the 1st defendant-respondent 1, auctioned the right to pluck the fruits of the tamarind trees in favour of the defendant 2, it cannot be said that the transfer was illegal and it did not confer any right to transferee to pluck the trees as it has not been shown that to plaintiff-appellant that right had been granted for antiquity at all or the like. ( 13 ) THUS considered, I am of the opinion that the lower Appellate Court did not commit any error of law or of jurisdiction in allowing the first appeal of the 1st defendant and in setting aside the Trial Courts' decree. Thus considered, the second appeal has got no merits and as such, it is hereby dismissed. No orders as to cost. --- *** --- .