The requirement for notice under Section 80 of the Code of Civil Procedure, 1908 is mandatory and cannot be waived; failure to comply renders the suit non-maintainable.

JUDGMENT :

EASWARAN S., J.

1. These appeals raise a common question of law regarding the scope of Section 80 of the Code of Civil Procedure, 1908 and hence, are being considered together. The Principal of the Government College, Chavara and the Parent Teacher Association, Baby John Memorial Government College, Chavara, are questioning the judgment dated 26.09.2015 in A.S.No.132/2009 of the Additional District Court-VI, Kollam, in RSA Nos.61 of 2016 and 897 of 2016, respectively.

2. The brief facts necessary for the disposal of these appeals are as follows:

2.1. The respondent/plaintiff in RSA No.61/2016 claimed that she is the owner in possession of the plaint ‘A’ schedule property. The title to the aforesaid property is traced to a Partition Deed No.459 executed in the year 1950. According to the plaintiff, she has been in possession and enjoyment of the property ever since she was assigned the property. The plaint ‘A’ schedule property is demarcated with well-defined boundaries. Approximately 1¹/2 Acres of land laying adjacent to the plaint ‘A’ schedule property was acquired by the Government for Government Girls High School, Chavara. Subsequently, that property was transferred for establishing Government College, Chavara. The property situated on the western side of the plaint ‘A’ schedule property and the property acquired for the construction of the Government College, Chavara, are now in the possession of the 1^st defendant. There is a pathway starting from the N.H.47 situated on the eastern side of the property of the 1^st defendant and used by the plaintiff for ingress and egress to the plaint ‘A’ schedule property. The said pathway, which is mentioned in the Panchayat Register and maintained by the Panchayat, is scheduled as ‘B’ schedule property. The pathway further runs towards the north and thereafter turns to the east and going to Vengoli. The said pathway is having a width of 5¹/2 metres and a length of 35 metres. The property of the Government College, Chavara, is situated on the north of the said ‘B’ schedule pathway and there are electric posts in the ‘B’ schedule pathway and that the defendants have no right to close down the said pathway and obstruct the right of the plaintiff. The defendants are attempting to construct boundary wall for the properties of the Government College, Chavara enclosing ‘B’ schedule pathway, and since the plaintiff received reliable information from the contractor, who is making constructions for the 1^st defendant, to the above effect and also that the construction will start on 07.10.1998, the suit has been instituted.

2.2. The 2^nd defendant entered appearance and resisted the claim. The 1^st defendant alone filed a written statement raising a preliminary objection as regards the maintainability of the suit. According to the 2^nd defendant, no notice under Section 80 of the Code of Civil Procedure, 1908 was issued prior to the filing of the suit. The plaintiff has approached the court by suppressing the material facts and the litigation is only vexatious. According to the defendants, the property of the Government College is lying as a single plot having an extent of 316.530 cents comprised in Resurvey Nos.248/1 and 247/3 of Chavara Village. The ‘B’ schedule pathway is not mentioned in the resurvey plan. Since the plaintiff has an alternate way for ingress and egress to the plaint scheduled property, the plaintiff cannot raise any objection to the exclusive use of the property by the Government.

2.3. After the filing of the written statement, the plaintiff sought amendment of the plaint seeking to incorporate a prayer for mandatory injunction in the plaint on the ground that the defendants have closed ‘B’ schedule pathway after the filing of the suit. An additional written statement was filed on behalf of the 1^st defendant, contending that since there is non- compliance of the provisions of Section 80 of the Code of Civil Procedure, 1908 , the plaint ought to have been returned. On behalf o