DIRECTOR OF FISHERIES, J&K Vs. QADIR MIR

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff in a suit for a permanent injunction against defendant 1 restraining him from interfering with the possession of the plaintiff -respondent in respect of Khasra Nos 371 and 379 situate in village Chatlam. The plaintiff claimed that he had possession and title over the land in suit and defendant 1 was trying to interfere with his possession without any justification.

(2.) THE suit was resisted by defendant 1 mainly on the ground that the land in suit did not belong to the plaintiff but had been allotted to him by the Fisheries Department of the State who was in possession of the land.

(3.) THE trial court by its order framed an issue on the question as to whether or not the State was a necessary party to the suit and impleaded the Fisheries Department as a party defendant in the suit and allowed it to file a written statement. In the written statement the Fisheries Department alleged that the suit was not maintainable as no notice under S. 80 Civil P. C. had been given to the State. Having taken this plea, the Fisheries Department did not pursue it further and did not press the trial court to raise an issue on the question of notice under S. 80 Civil P. C. Even after the issues were framed, no application was given by the appellant before the trial court for framing an issue on the question of maintainability of the suit in the absence of notice under S. 80 Civil P. C. Lastly the absence of notice under S. 80 was also not pressed before the trial court at the time of arguments. From these facts the learned Addl. D. J. who heard the appeal came to a finding of fact that the appellant had clearly waived the right to receive -a notice under S. 80 by his clear and categorical conduct.