Hon'ble LODHA, J.—The judgment and decree dated 23.3.2005 passed by the Board of Revenue setting aside the judgment and decree dated 26.3.1991 passed by the Revenue Appellate Authority (Second), Jodhpur, decreeing the suit for declaration and perpetual injunction preferred by the petitioners against the respondents is impugned in this writ petition. By the order impugned, the Board of Revenue has rejected the plaint of the petitioner allowing an application preferred on behalf of the Rajasthan Housing Board, the respondent No.5 herein, under O. VII R. 11 of Civil Procedure Code, 1908.

2. The petitioners preferred a suit for declaration and permanent injunction against the State of Rajasthan alleging therein that they are in possession of 2.5 bighas agriculture land comprising Khasra No. 881/751 of revenue village-Jodhpur since Samvat 2000 and after resumption of the Jagir, they have acquired khatedari rights over the said land. Accordingly, they prayed for a decree for declaration of their khatedari rights so also the permanent injunction against the respondents not to interfere with their cultivatory possession over the land in question. Since the suit land was sought to be acquired for development of residential colony by the respondent-Rajasthan Housing Board therefore, it was also impleaded as party defendant in the suit.

3. The suit preferred by the petitioners was dismissed by the Trial Court vide judgment and decree dated 28.7.1986. Aggrieved thereby, the petitioners filed an appeal before the Revenue Appellate Authority (Second), Jodhpur, which was allowed vide judgment and decree dated 26.3.1991 and the suit was decreed in the favour of the petitioners as prayed for.

4. Against the judgment and decree dated 26.3.1991, the respondent-Housing Board preferred an appeal before the Board of Revenue, Rajasthan. During the pendency of the appeal, the respondent-Housing Board preferred an application under Order VII Rule 11 read with Section 151 of C.P.C. for the rejection of the plaint, on the ground that by virtue of the provisions of Section 50 of Rajasthan Housing Board Act, 1970 ("the Act"), the suit filed by the petitioners without giving two months previous notice in writing to the Housing Board was not maintainable. A reply to the application was filed >n behalf of the petitioners and the written submissions were also made on their behalf before the Board. However, after due consideration, the appeal of the Housing Board was allowed by the Board of Revenue on the ground that before instituting the suit against the Housing Board, service of the notice in terms of Section 50 of the Act is mandatory and since no notice has been served by the petitioners before filing the suit therefore, the suit is liable to be rejected as not maintainable. Hence this petition.

5. It is contended by Mr. Sunil Bhandari, the learned counsel for the petitioners but the essentially relief claimed in the suit by the petitioners was against the State of Rajasthan and no relief was claimed against the Housing Board. It is submitted that the Housing Board was impleaded as party defendant in the suit inasmuch as, the land in question was sought to be acquired by the State for the benefits of the Housing Board. The learned counsel submitted that no action of the respondent-Housing Board taken in pursuance of the Act was under challenge therefore, the provisions of Section 50 of the Act are not attracted. In support of his contention, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in Devi Singh vs. Municipal Corporation Hyderabad, AIR 1972 SC 2510. That apart, it is submitted by the learned counsel that no objection regarding non service of the notice in terms of the provisions of Section 50 of the Act was taken by the respondent-Housing Board before the Trial Court and even before the First Appellate Court therefore the Board of Revenue has seriously erred in entertaining an application preferred by the respondent-Housing

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