Waiver of notice under Section 80 of the CPC is a question of law, and the intention of waiver has to be inferred from the admitted and proved facts.

1. This judgment will dispose of Letters Patent Appeals Nos.594 to 596 of 1970, arising out of Regular Second Appeals Nos.1632, 1633 and 1238 of 1968 respectively in which a learned Single Judge of this Court affirmed the decision o the lower appellate Court which in turn set aside the decision of the trial Court decreeing the plaintiffs suit. The learned Additional District Judge merely proceeded to dismiss the suit on the ground that there was no notice under Sec.80 of the Code of Civil Procedure served on the State.

2. The facts material to determine the controversy in this case may now be stated : The appellants were the plaintiffs in the suit which has given rise to these appeals. Their claim in the suit was that Khasra No.1591 forms part of the area of Mandi Dadri. It is owned and possessed by the owners of the Mandi. It has been in their possession ever since the Mandi came into existence. The owners of the Mandi opened a school for the education of the children and provided a playground as also some buildings which are all located in this Khasra number for the common purposes of the population of the town. The suit was necessitated because the defendants had started obstructing the owners of the Mandi in the use of this piece of land. One of the defendants had obtained sanction from the Municipal committee for construction of a house and a shop on this piece of land and wanted to forcibly build thereon, and for that purpose they had collected some rori, that is, shingle, and placed some drums on a portion of the disputed plot. This causes obstruction to the use of the plot by the owners of the Mandi. An alternative case was also pleaded that if the plaintiffs were not the owners of the disputed plot, they and the other members of the public had been continuously using it as a public way over a period of more than twenty years for going to their respective houses and enjoying other facilities available to them by way of a well and a tank. The obstruction by the defendants had resulted in special damage to the plaintiffs and other owners of the Mandi. The litigation has gone through a fairly tortuous course by now. The suit was, however, decreed by the trial Court on 12th of July 1960. An appeal was filed by respondents 1 and 2 against the trial Courts decree, which was accepted by the learned District Judge, Rohtak, by his judgment dated the 14th of June 1962. The learned District Judge had found that the plaintiffs were not the owners of Khasra No.1591, and that respondent No.1 had made encroachment on the land in dispute which belonged to the Government. the plaintiffs were dissatisfied with that judgment and preferred a regular second appeal to this Court. That appeal was allowed by Shamsher Bahadur, J. The judgment of the learned Judge is very pertinent and requires to be quoted in extenso. It may be mentioned that the learned Judge dealt with two other appeals also. While disposing of all the three appeals, the learned Judge observed "this case, in my opinion, is eminently fit for the Government to be made a party. The State Government, in my view, is a necessary party and not merely a proper party. It was the duty of the lower appellate Court to have acceded to the request of the Municipal Committee to add the State Government as a party. As far as the other two appals are concerned, it appears that though no point was taken in the trial Court, an application was made before the learned District Judge that the Government should be made a party. This application, no doubt, was resisted by the plaintiffs but it seems to me that in order to decide the case property the Government should be made a party. The nature of the original acquisition and the manner in which the Mandi fund had been created under the aegis and the authority of the Government make it clear that the Government was not merely a formal out a necessary party in these proceedings. The findings of the lower appellate Court that the Government