1. Compliance with the notice requirement under Section 80, CPC, is mandatory before filing a suit against the State of Orissa. 2. The State of Orissa is not a necessary party to a suit for declaration of customary right over land, where the defendants have title to the land.

JUDGMENT :

R.K. Dash, J. - This revision at the instance of defendant No. 1 is against the order of the learned Additional District Judge, Bhadrak, passed in Title Appeal No. 9 of 1984 allowing the plaintiff's prayer for addition of State of Orissa as defendant to the suit.

2. To appreciate the question posed in the present revision it is necessary to recapitulate the factual aspect as stated hereunder:

Plaintiff filed Title Suit No. 189 of 1979 in representative capacity under Order 1, Rule 8, CPC for a declaration of customary right of the villagers over the suit land as described in the schedule of the plaint, for permanent injunction restraining the defendants from interfering in the exercise of their such right and for a declaration that the sale deed in respect of the suit land which stands in the names of the defendants is illegal and inoperative.

3. Defendants 1 and 2 countered the plaintiff's claim of customary right and asserted that the suit land originally belonged to the ex-landlords Quutubuddin Hossain and others who leased out the same in favour of one Abdul Hai and put him in possession thereof. Subsequently the successors of the aforesaid lessee sold away the suit land by registered sale deed dated 24-7-1979 to the defendants and since purchase they have been possessing the same as owners thereof by making certain improvements.

4. The learned trial Judge upon consideration of the evidence led during trial, dismissed the suit. Feeling angrieved by the judgment and decree the unsuccessful plaintiffs preferred the aforesaid Title Appeal. During pendency of the appeal, they filed a petition under Order 6, Rule, 17, CPC praying for impletion of State of Orissa as a party defendant. This prayer was objected to by the defendants. Considering the submissions made at the Bar, learned Additional District Judge allowed the plaintiff's prayer and remanded the suit to the Court below for fresh disposal in accordance with law. Defendant No. 1 preferred Misc. Appeal No. 251 of 1989 against the said order to this Court which upon hearing the parties, held the same to be unsustainable for the following reasons and remanded the matter for fresh disposal:

"(i) Without hearing the appeal on merit, the appellate Court has set aside the judgment and decree and remitted the matter for fresh disposal.

(ii) It has nowhere given the finding that the plaintiffs had compiled with the requirement of Section 80, CPC.

(iii) It has given no finding regarding the title of the defendants though the trial Court had given specific finding that the defendants have title to the property. In case the learned appellate Court would have come to the conclusion that the defendants have title to the property, then there would have been no need for further adjudication as to whether the plaintiffs have customary right under the State of Orissa."

Consequent upon remand, learned Additional District Judge heard both parties afresh and accepted plaintiff's contentions and consequently allowed the State of Orissa to be impleaded as a party defendant.

5. Learned counsel appearing for defendant No. 1 strenuously, contended that learned Additional District Judge being aware of the "observations of the Court as extracted above, failed to follow the same while passing the impugned order. It was further urged that there had been no compliance of the statutory requirement of notice as envisaged u/s 80, CPC and this question although was raised in course of argument, but the appellate Court without verifying the correctness thereof, passed a cryptic order holding that there was proper service of notice upon the State. Lastly he submitted that in the facts and circumstances of the case, State of Orissa is neither a necessary party nor a proper party, inasmuch as in absence of State of Orissa, an effective decree can be passed, but in order to nullify the effect of the decree, such a prayer was made so that if the same was allowed, the appellate Court would have no other alter