S.K. Keshote, J.-The plaintiff appellants filed a suit against Nagar Palika, Beawar & Others for permanent injunction, perpetual injunction and declaration of title, damages and possession in respect of the property in dispute.

2. The Nagar Palika, Beawar, filed written statement in the suit; therein it has not taken any objection re the maintainability of the suit for want of a notice under Section 271 of the Rajasthan Municipalities Act, 1959 (hereinafter shall be referred to as the Act, 1959)

3. On 04.02.1975 the learned trial Court framed six issues in the suit.

4. The respondent Nagar Palika, Beawar, did not press for framing of any issue re maintainability of the suit of the plaintiff appellants for want of notice by them to it under Section 271 of the Act, 1959. When the plaintiffs evidence completed and the suit reached at the stage of defendants evidence, the Nagar Palika, Beawar, on 07.09.1981 filed an application under Order 7 Rule 11 (d) and Section 151 of the Civil Procedure Code; therein it prayed for dismissal of the suit for want of a notice by the plaintiff appellants. On 07.09.1981 the learned trial Court allowed this application and dismissed the suit of the plaintiff appellants.

5. The plaintiff appellants filed appeal against that judgement and decree of the trial Court, which was dismissed by the learned first appellate Court.

6. The plaintiff appellant filed this second appeal; it came up for admission before the learned Single Judge on 09.09.1986. The learned Single Judge admitted the appeal and having been found two conflict decisions of different Single Benches in the cases of Municipal Board, Nibahera vs. Syed Ashaq Ali 1968 RLW 407 and Nagar Palika vs. Temple Board, Nathdwara 1981 RLW 238, on the point that where giving of notice not alleged in the plaint nor any objection was taken in the written statement for long time, the plea of want of notice is waived, or not.

7. In the first case of Municipal Board, Nibahera vs. Syed Ashoq Ali (Supra), the learned Single Judge held waived the plea of want of notice whereas in the later decision in Nagar Palika vs. Temple Board, Nathdwaras case (Supra), the another learned Single Judge, without referring to the authority aforesaid, took the view that the objection with regard to the notice under Section 271 of the Act, 1959 can be taken at a later stage and it will not be deemed to have been waived, if such objection is not taken in the written statement.

8. The learned Single Judge referred the matter to the Larger Bench. The Honble Chief Justice placed the matter before the Division Bench and that is how it has come before us.

9. The point for our consideration is that which of views of the different Single Benches, referred to above, is correct.

10. Shri J.K. Singhi, learned Counsel for the plaintiff appellants, contended that in the written statement the defendant respondent No. 3 did not raise any plea re maintainability of the suit for want of notice under Section 271 of the Act, 1959. The provision of giving a notice under Section 271 of the Act, 1959 is for the benefit of the defendant respondent No. 3, thus in his submission the defendant respondent No. 3 is within its competence and right to waive the notice. The waiver of the notice under Section 271 of the Act, 1959 by the defendant respondent No. 3, the learned Counsel for the plaintiff appellants urged that will not be prejudicial to the public interest.

11. Shri J.K. Singhi, the learned Counsel for the plaintiff appellants further submitted that the view taken by the learned Single Judge of this Court while deciding the case of Municipal Board, Nimbahera vs. Syed Asheq Ali (Supra), is correct. It has next been contended that the view of the

learned Single Judge in the case of Municipal Board, Nimbahera vs. Syed Ashaq Ali (Supra), was not placed for consideration before another learned Single Judge deciding the case of Nagar Palika vs. Temple Board, Nathdwara (Supra). Had the former dec