JUDGMENT

A.K. Sharma, Member. - Smt. Raj Kumari and Sri Om Prakash (through Smt. Vidyawati, District Lucknow) have come up in appeal against the judgment and decree, passed by the learned Addl. Commissioner, Rohilkhan Division, Bareilly, on June 18, 1973, whereby he set aside the order and decree passed by the learned Sub-Divisional Officer, Baheri, district Bareilly, on the ground that the suit ought to have been rejected by the Trial Court under Order 7, Rule 11(d), Civil Procedure Code, and was barred as Section 80 C.P.C. notice had not been given to the State Government which had to be impleaded as a necessary party under Section 209, Z.A. and L.R. Act, though it was impleaded as a party by the plaintiffs. On merits the learned Addl. Commissioner had concurred with the Trial Court's finding that Jaswant Singh was a trespasser and had not acquired Sirdari rights.

2. The only question for decision before me, therefore, is whether the suit was maintainable in the absence of notice under Section 80 C.P.C. to the State Government.

3. The Trial Court framed issue No. 1 on this point and found that a written reply was filed on behalf of the Government but the case was not further contested on behalf of the Govt. and as such the non-issue of the notice under Section 80 C.P.C. did not have any effect on this case. The learned Addl. Commissioner has stated that the plaint did not mention that a notice under Section 80 C.P.C. had been given to the state Government and there was no copy of this notice on the file and that no plaintiffs witnesses had testified to it in his oral evidence, and that in its written statement the State Government had objected that Section 80 C.P.C. notice had not been given to it and from this he concluded that Section 80 C.P.C. had not been given to the state Government. He held that Section 80 C.P.C. notice was essential and a pre-requisite before the State Government could be impleaded as a party in the suit under Section 209 Z.A. and L.R. Act and that since this notice had not been given the plaint was defective and barred under these legal provisions.

4. Learned counsel for the appellant has argued that only the State Government had a right to object and go in appeal after the Trial Court had held that, after filing 'the written reply', the State Government had not further contested the suit and that non-issue of notice to it under Section 80 C.P.C. did not have any effect on the case. He said that no third party had a right to raise an objection on behalf of the State Government. In this connection he referred to Gabul Singh and 10 other v. Board of Revenue and 3 others, Civil Misc. Writ Petition No. 789 of 1972, Distt. Meerut in which it was held in the circumstances of that case that it was not open to the respondent (a third party) to raise an objection about the non-maintainability of the suit on the ground that the notice under Section 80 C.P.C. had not been given to the State. Further, the learned counsel said that the State Government having filed a written statement did not press it and that showed that they had abandoned the plea and now the point could not be re-agitated. In support of this he cited A.I.R. 1935 (Alld.) 1004, headnote B. He also said that the State Government had not gone in appeal and that showed that they had nothing to urge against the finding of the Trial Court on this issue. He referred to the judgment dated July 28, 1966, (attested copy filed) in Hari Singh v. The Board of Revenue, U.P. and 5 others, Civil Misc. Writ No. 1830 of 1963 in which K.B. Asthana, J. held that there was no indication in Section 209 Z.A. and L.R. Act, which was a special law, or in the Rules made thereunder that a notice had to be served on the State Government before impleading it as a necessary party, the provisions of Section 80 C.P.C., which is the general law, have to be ruled out from application. He stated that the impleading of the Government in a suit in which the cause of action is not