1. The substantial questions of law involved, formulated and to be answered in the defendants' second appeal are as under: -

“(1) Whether the findings of the First Appellate Court regarding Ex-P/2 is perverse?

(2) Whether the findings of the First Appellate court regarding non-applicability of the notice as required under Section 80 of the CPC are perverse?”

2. The plaintiffs/respondents herein brought a suit for declaration of title over the suit land bearing Khasra No.879, area 0.70 acre, and also for permanent injunction and further declaration that order dated 30-10-1985 passed by the Sub-Divisional Officer (Revenue), Durg under Section 57(2) of the Madhya Pradesh (Chhattisgarh) Land Revenue Code, 1959 (for short, 'the Code') and further appellate order dated 9-9-1986 passed by the Additional Collector, Durg and also the second appellate order dated 15-1-1988 passed by the Additional Commissioner, Raipur Division, Raipur, are null and void.

3. The defendants/State opposed the suit holding that the order of the Additional Commissioner has become final and jurisdiction of civil court is barred as such, the plaintiffs are encroachers upon the Government land.

4. The trial Court after appreciating oral and documentary evidence on record came to the conclusion that the plaintiffs are not the title holders of the suit land and the order dated 30-10-1985 is not null and void and civil court has jurisdiction, but Section 80 of the Code of Civil Procedure, 1908 (for short, 'the CPC') has not been complied with, therefore, the suit is not maintainable.

5. On appeal being preferred, the first appellate Court held that the plaintiffs are title holders and the defendants/State have waived the plea of service of notice under Section 80 of the CPC and decreed the suit. In the second appeal preferred, substantial questions of law have been framed and set-out in the opening paragraph of this judgment.

6. Mr. Arun Sao, learned Deputy Advocate General appearing on behalf of the State/defendants, would vehemently submit that the trial Court has framed specific issue of compliance of Section 80 of the CPC as issue No.7A pursuant to the order dated 20-3-1992 and rightly held that the suit is not maintainable for non-compliance of Section 80 of the CPC which has illegally been reversed by the first appellate Court holding that first plea has not been raised. He would further submit that the first appellate Court has granted the decree on the basis of Ex.P-2, the order of the Additional Deputy Commissioner, Land Reforms, Durg, dated 23rd June, 1955, which is perverse and contrary to record.

7. Mr. H.B. Agrawal, learned Senior Advocate appearing for the plaintiffs, would support the impugned judgment & decree and submit that the first appellate Court has rightly decreed the suit of the plaintiffs.

8. I have heard learned counsel for the parties and considered the rival submissions made herein-above and also went through the record with utmost circumspection.

9. I will firstly take up the second substantial question of law, whether the findings of the first appellate Court with regard to Section 80 of the CPC are perverse?

10. Admittedly, the suit was filed against the State by the plaintiffs for the aforesaid reliefs and specifically, declaration was sought that the orders of the Sub-Divisional Officer (Revenue), the Additional Collector and the Additional Commissioner being the appellate authorities, be declared null and void, but no plea with regard to non-service of notice was raised. However, the trial Court after hearing the final arguments on 18-3-1992 placed the case for further argument on 20-3-1992 and on that day framed additional issues as issue Nos.7A and 7B as to whether the plaintiffs have complied Section 80 of the CPC and asked the parties to lead evidence on the said issues, but both the parties declined to lead evidence holding that the questions relate to pure question of law and in that view of the matter, the trial Court procee