JUDGMENT :

This is a plaintiff's appeal arising out of a suit for permanent prohibitory injunction.

2. Original Suit No. 441 of 1979 was instituted by Irshad Ahmad against the State of U.P., represented by the Collector, Muzaffar Nagar and the Town Area Committee, Burhana, District Muzaffar Nagar, represented by its Secretary, praying for a permanent injunction to the effect that the defendants be forbidden from interfering with the plaintiff's peaceful possession in the suit property perpetually.

3. The facts giving rise to the appeal are these:

Irshad Ahmad (for short, 'the plaintiff') instituted a suit before the Munsif of Muzaffar Nagar with a case that he had his Pajawa (an indigenous brick-kiln), located in Khasra No. 3299, admeasuring 1 bigha 8 biswa and Khasra No. 3300, admeasuring 10 biswa, situate in the Town and Tehsil Burhana, District Muzaffar Nagar. The said land was the plaintiff's ancestral property, that was included in Khewat No. 19, Mahal Abdul Alam. The said property shall hereinafter be called 'the suit property'. It is the plaintiff's case that the Pajawa is situate in the suit property since a very long time, and, is recorded as such, in the revenue records. In Khasra No. 3299, the plaintiff's great grandfather had got a pucca well sunk, that bears a stone engraving of his name. The suit property does not fall within the definition of land envisaged under Section 3 (14) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act').

4. In the days gone by, land of Khasra No. 3299 was cultivated and in order to irrigate the land, the well last mentioned was sunk. The State of U.P., represented by the Collector, Muzaffar Nagar and the Town Area Committee, Burhana, hereinafter referred to as 'defendant Nos. 1 and 2, respectively, have neither title nor possession to the suit property and it is the plaintiff, who is in possession of the same. It is the plaintiff's case that without any right, defendant Nos. 1 and 2 want to interfere with the plaintiff's peaceful possession in the suit property. The plaintiff instituted a declaratory suit under Section 229 -B of the Act, but the suit property being not land within the definition of Section 3 (14) of the Act, the suit was dismissed.

5. The plaintiff questioned the Trial Court's judgment vide Appeal No. 303 of 1978 preferred to the Commissioner of the Division. The Commissioner by his order dated 27.04.1979 remanded the suit for trial. It was held that the suit property was not land under Section 3 (5) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, ‘the CONSOLIDATION ACT ’), and, therefore, the provisions of the said Act, are not attracted, including those of Section 49 . It is in these circumstances, the plaintiff says that he instituted a suit for injunction before the Civil Court. It is also the plaintiff's case that he served two notices dated 09.05.1979 upon defendant Nos. 1 and 2 and these were served on 15.05.1979.

6. About defendant Nos. 3 to 10 to the suit, who are not parties to this appeal, for reasons that will shortly be indicated, it was averred that the said defendants have no right in the suit property. It was also averred that defendant Nos. 3 to 10 have executed a conveyance of sorts, called a dastbardari of their share in the plaintiff's favour, who are now owners of the entire suit property. It may be remarked that there is no relief by way of injunction claimed against defendant Nos. 3 to 10. It is lastly averred by the plaintiff that defendant Nos. 1 and 2 are, despite the plaintiff's asking, persistent in their endeavo