JUDGMENT

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 plaintiff's suit. The learned Additional District Judge merely proceeded to dismiss the suit on the ground that there was no notice under Section 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 Court's 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 had acquiesced in the encroachment makes it all the more imperative that the Government should be impleaded a party and its position correctly ascertained."

In consequence, the learned Judge remanded the plaintiffs' appeal permitting the plaintiffs to file an amended plant. The plaintiff thereupon filed their amended plaint in the trial Court on the 11th of February 1963, impleading the State of Punjab as defendant No. 3. Written statement by defendants 2 and 3 was filed on 20th of May 1963. No objection was raised by defendant No. 3 that the suit was incompetent for want of a valid notice under Section 80 of the Code of Civil Procedure. But this objection was specifically taken by defendant No. 2.

The appellants were allowed to file replication to the written statement. This they did on 12th of June 1963. It was clearly stated in the replication that notice had been served on the Government on 25th January 1963. Obviously the notice was not valid, because the suit had been filed before the period of two months had expired from the date of notice. In spite of this patent fact no issue was claimed by the Government. In spite of this patent fact no issue was claimed by the Government. Issue No. 1, which dealt with the validity of notice, was framed at the instance of defendant No. 2. There were other issues framed in the case with which we are not concerned at the moment. The trial Court held that the Government had waived the notice. The other issues were decided some in favour of the plaintiffs and the others in favour of the defendants. The ultimate result was that the plaintiffs' suit was decreed.

The three defendants then preferred three separate appeals in the Court of the District Judge. The learned Additional District Judge only determined issue No. 1 in the appeals and came to the conclusion that there was no legal notice and, therefore, the suit was liable to fail. He accordingly allowed the appeals, set aside the judgment and decree of the trial Court and dismissed the suit. The plaintiffs then preferred three second appeals against each of the three defendants in this Court. Those appeals came up for hearing before a learned Single Judge, who affirmed the decision of the lower appellate Court holding that there was no waiver of Section 80 notice. On a certificate having been granted by the learned Single Judge under CLAUSE 10 of the Letters Patent, the present three appeals have been preferred by the plaintiffs.

3. We proceed to determine these appeals on the clear basis that there was no valid notice under Section 80 of the Code of Civil Procedure. This basis is not controverted by the learned counsel for the appellants. The only contention raised by him is that on the admitted and proved facts on the record there is a waiver. Therefore, we will have to determine or ascertain what are the proved facts. We proceed to enumerate them seriatim-

In the amended plaint there was no mention that any notice under Section 80 of the Code of Civil Procedure had been served on the Government.

Defendant No. 2 took the plea that the suit should be dismissed for want of a valid notice.

The plea as to the validity of notice was not taken by defendant No. 3.

In the replication filed by the plaintiffs a specific plea was taken that a notice had been served on the Government .

From the averments in the replication it was plain that the notice was invalid because the period of two months commencing from the date of service of the notice to the date of the filing of the suit ad not been expired.

At the time when the issues were framed, there was no statement by the counsel for the State that he was claiming issue No. 1. In fact issue No. 1 was framed at the instance of defendant No. 2.

During the course of the trial, no objection was raised by the learned counsel for the State inasmuch as he did not even address any arguments on issue No. 1.

No prayer was made for the amendment of the written statement by the counsel for the State so as to raise the plea of invalidity of notice.

These are the admitted and proved facts and, therefore, on these facts the question that arises is whether there is waiver.

4. The learned counsel for the plaintiff -appellants contends that the only conclusion that can be drawn from these facts is that defendant No. 3 waived the notice, whereas the learned counsel for other defendants strenuously contends that there is no waiver. Their case is that the moment issue No. 1 was framed there was no question of any waiver and the benefit of that issue could be taken by defendant No. 3. After hearing the learned counsel for the parties at length we have come to the conclusion that the learned Single Judge was in error in coming to the conclusion that there was no waiver. We will deal with the various aspects of the reasoning given by the learned Single Judge to come to that conclusion shortly. At the moment we propose to examine the legal position as to whether these facts and circumstances amount to waiver. This is a matter which is similar to a case dealt with by the Calcutta High Court as far back as 1912, in the case reported as Bhola Nath Roy v. Secy. of State for India, (1913) ILR 40 Cal 503. In that case objection was taken to the validity of notice but no issue was claimed by the State, and at the instance of a private party an issue was struck, and it was held by the Division Bench, presided over by an eminent Judge, Sir Sutosh Mookerjee, that it was not competent to the private party to raise the question of validity of notice. After relying upon Mahindra Chandra Nandi v. Secy of State for India, (1907) 5 Cal LJ 148, the learned Judge observed -

". . . . . . . . . it is competent to the Secretary of State to waive the notice, and he may be estopped by his conduct from pleading the want of notice at a late stage of the trial. In the events which have happened, we are clearly of opinion that in this case notice was waived on behalf of the Secretary of State, and that the question could not have been raised by the second defendant (private party)." The events on the basis of which it was held that in spite of the objection of the State as to notice there was waiver, according to the learned Judges were -

". . . . . . . . .no issue was raised upon the point. We must assume that the issues were framed in the presence of the parties or their representatives. At any rate, they had notice of the date when the issues would be settled by the Court, and it was incumbent upon them to be represented on the occasion. But even if it be assumed that the issues were framed in the absence of the Government Pleader, it is plain that he might have taken exception to the issues as framed and asked the Court to frame an additional issue. No objection, however, was taken by him at any stage of the trial in the court of first instance. It was the second defendant who prayed, just before the trial began, that an additional issue might be raised upon the question of the validity of the notice."

It is also of great significance to note in the present case that even at the stage of arguments nothing was addressed on the question of validity of notice by the counsel for defendant No. 3. Even if at that stage some argument had been addressed on the point, we would have been inclined to hold that the notice was not waived. It will be very pertinent to mention here that b before the District Judge, prior to the order of remand by the High court, an application was made by the State for being impleaded as a defendant and that application was rejected. Therefore, the State was fully cognisant of the proceedings that were going on in the suit an very much wanted to associate itself with those proceedings. This happened under the orders of Shamsher Bahadur, J., and may be for this reason that no objection was taken to the validity of notice.

5. As regards the contention of Mr. Nehra that the State Government can take benefit of issue No. 1, the answer t it is to be found in the decision of Sir Asutosh Mookerjee, J., already referred to. His further contention that waiver can only be if there is a conscious act on the part of the person waiving his right has to be answered. It is well-known that all proceedings or all suits against the State have to be filed after a notice under Section 80 of the Code of Civil Procedure has been served, and the period of notice is also specified in that section, namely, two months. The object of the notice is to enable Government to make up its mind whether to contest the claim or not. In this case Government had decided to associate itself with the proceedings and thus did not want to object to the validity of the notice. Therefore, it is idle to suggest that the plea of validity of notice or want of notice wouldn't be present to the mind of the counsel or the officer of the State conducting the proceedings. In fact that would be the very first thing which would be the very first thing which would be urged in the written statement to be filed on behalf of the State. It is, therefore, wrong that the State was not aware of its rights that suit against it cannot proceeded without proper notice. They very fact that no objection was raised to this effect in the written statement, coupled with the fact that after the replication it was still not raised by defendant No. 3, irresistibly leads to the conclusion that it was a deliberate act on the part of the State Government not to do so. It may be that the State Government wanted to be very much on the scene to protect its right in a controversy which really affect two private parties, because in the plaint no specific relief was claimed against the State Government. but when it was added as a party, it was though necessary that as there was a finding that the property belong the Government, it should be very much so on the scene. Therefore, we are unable to accept the contention of Mr. Nehra that the waiver in the present case was not intentional or the State was under any misapprehension as to its legal right under Section 80 of the Code of Civil Procedure. We particularly say so because the State has at its command the services of competent counsel and it is in any case supposed to have the same in each and every case.

6. The other contention of Mr. Nehra is that waiver is a question of fact and particularly as waiver has to be intentional and therefore, intention being a question of fact, this Court cannot in appeal interfere with the concurrent finds of fact arrived at by the learned District Judge a well as by the learned Single Judge. We are unable to agree with this contention. Waiver is not a question of fact. It is, a question of law, and in this connection reference may be made to the Privy Council decision in Beni Ram v. Kundan Lal, (1899) ILR 21 All 496 (PC). Moreover intention or waiver has to be inferred from admitted and proved facts. Intention is a purely subjective matter and, therefore, it is the surrounding circumstances and the proved facts from which the Courts gather the intention of a party. Whether certain proved and admitted facts in law amount to waiver or not has necessarily to be held to be a question of law. Intention has to be assumed, for the purpose of waiver, from the conduct of the parties, and in this situation the contention of Mr. Nehra must be repelled and it must be held that waiver is not a question of fact. The learned Councel relied on the following decisions for his contention that waiver has to be intentional, namely, Associate Hotels of India Ltd. v. Ranjit Singh, AIR 1968 SC 933 and Bhaiya Ram v. Mahavir Parshad, AIR 1969 Punj 110 (FB). We have already held that in the present case waiver was deliberate and intentional on the part of the State Government. These decisions merely say that the act of waiver has to be intentional and deliberate. Therefore, these decisions do not in any manner come in conflict with the view we have taken of the matter.

7. Reverting to the decision of the learned Single Judge, it seems that the learned Judge was under a wrong impression that the learned District Judge dealt with the appeal before remand and dismissed the suit on the ground that Government was not a party thereto. The suit was not, in fact, dismissed on that ground. It was dismissed because it was found that the plaintiffs had failed to prove that they were owners and in possession of the land in dispute. It was also found that malkan Mandi Dadri were not owners of Khasra No. 1591. It was further found that the plaintiffs could not sue without the sanction of the Advocate -General particularly when 11 1/2 feet of land was used as a public thoroughfare and the remaining 11 1/2 feet was in possession of defendant No. 1 before 1957. But at no stage in the judgment the learned District Judge held that the suit was able to fail because Government had not been impleaded as a party. In fact the application of the Government to be impleaded as a party was dismissed by the learned District Judge himself. It was only when Shamsher Bahadur, J. dealt with the appeal of the plaintiffs that it was ordered that the Government be impleaded a party and for that reason the appellate judgment of the District Judge was set aside and the case remitted to the trial Court for a fresh decision after the Government had been made a party.

8. The only contention that remains to be determined is that of the State Council. His contention is that the State Counsel owned the first issue because he was present on the date when the issues were framed. It is also urged by him that the plaintiffs never objected to the framing of issue No.1 at th instance of defendant No. 2. It may be mentioned that the framing of issue No. 1 was objected to by the plaintiffs. Therefore, the contention of the learned counsel for the State that the plaintiffs never objected to the framing of issue No. 1 is without foundation. As to his presence there is no doubt, but it is one thing to say that the counsel was present, and another to say that the issue was framed at his instance. There was no statement on that date by the State Counsel that the plea in the replication that notice has been served in controverted. At no stage the State counsel challenged the validity of the notice under Section 80 of the Code of Civil Procedure. Therefore, we must accept the contention that there was a tacit waiver on the part of the State Government with regard to the validity of notice under Section 80.

We have already given our reason that the State deliberately took that position in view of th history of this litigation. The learned Single Judge merely determined the question of waiver on the ground that there was no averment in the amended plaint that notice under Section 80 had been served. This is a basic factor which tilted this case on the question of waiver against the plaintiffs, because the learned Judge observed

"this factor would in my opinion make a lot of difference in determining whether the appellants had or had not waived the notice."

It appears that the learned Single Judge did not react to the replication which were brought to his notice. In the replications a specific plea of service of notice had been taken. Though on the face of it the notice was defective, still no statement at the bar was made by the counsel for the sate that he is raising the plea of validity of notice nor was an attempt made to put in a written reply to that allegation, or to ask for the amendment of the written statement, or even to claim an issue on that basis, particularly when the striking of this issue at the instance of defendant No. 2 had been objected to by the plaintiffs. It is a well-settled rule that replication is a part of the pleadings and anything which is specifically stated in the replication and for the first time, has to be controverted, and if it is not contravened and is allowed to pass it must be assumed that the plea raised is accepted. If any authority on the point is needed, reference may be made to S. D. G. Pandarasannidi v. State of Madras, AIR 1965 SC 1578 and S. A. Sattar v. Union of India, AIR 1970 SC 479. The learned Single Judge was however, of the view that in this case there was only silence on the part of the authority concerned to raise an issue about the want of requisite notice. We have already pointed out that is not so. In fairness to the learned Single Judge, we reproduce his observations on the question of waiver, which are as below :-

"Waiver being a conscious act, as already seen, it existence must in each case depend upon the facts and circumstances therein proved. What happened in the instant case was that no averment about any notice under Section 80 having been sent by the plaintiffs was made in the amended plaint, that although respondent No. 2 raised the issue of want of notice to respondent No. 3 in his written statement, respondent No. 3, himself did not do so, that an issue on the point was struck by the Court without any claim having been made on behalf of the appellants that the notice had been waived, that all the parties took part in the contest arising from the issue and as soon as the issue was decided against respondent No. 3 an appeal was taken on its behalf to the higher Court. Can it be said on the basis of these circumstances that a conscious relinquishment of the plea regarding want of notice on the part of respondent No. 3 stands established? In my opinion the answer to this question must be given in the negative. It may well have been that the counsel for the State was negligent in taking up the plea of want of notice an that such negligence arose from the negligence of appellants themselves in no pleading the issuance of notice. Negligence, however, would not amount to a conscious omission. It has been contended on behalf of the appellants that the failure of respondent No. 3 to raise the plea even after an issue on the point was framed at the instance of respondent No. 2, would indicate that the omission was deliberate but I do not think that circumstance can be interpreted in that manner. It is quite possible that when the issue was framed 'he counsel for the State Considered it fruitless petition to raise the plea when it had already been made the subject-manner of a contest. In this view of the matter no waiver can be attributed to respondent No. 2."

We are unable to agree with these observations in view of the admitted and proved facts in the present case.

9. For the reasons recorded above, we allow these appeals, set aside the judgment and decree of the learned Single Judge and that of the District Judge and remit the case to the learned District Judge for deciding the remaining matters in controversy on merits. The parties are directed to appear before the learned District Judge on 15th of March 1971, who will expeditiously decide the appeals. The costs will abide the final event.

10. Appeal allowed.