CHANDRAPAL Vs. ROOP RAM

JUDGEMENT

(1.) THIS is a defendants' appeal in a suit for injunc tion restraining the defendants from interfering with the plaintiff's user of a pukka well and two Neem trees, situate in plot no. 425 having an area of 1 Bigha 5 Biswas, in village Madrak and.directing them not to irrigate their fields from the well or to destory the trees. The plaintiff's case was that he had purchased plot no. 425 along with the well and the Neem trees from defendant no. 4, Smt. Nathia, daughter of Har Govind, by sale-deed dated 22nd August, 1966, and that the defendants asserted their rights on the well and the trees and wanted to forcibly cultivate their fileds from the well. It was further pleaded in the plaint that Har Govind the father of Smt. Nathia defendant no. 4 was the brother of Ulfat, both being, among others, sons of Manggu. Ulfat had two sons Chhokhey Lal and Khamni. The defendants were the three sons ofKhamni. In this manner Smt. Nathia was the defendants' fathers' brothers' daughter. The plaintiff pleaded that there was a plot no. 683 before consolidation of holdings operations. The well and the trees were situated thereon and that on consoli dation holdings, the said plot no. 683 was included in plot no. 425 which was allotted to Smt. Nathia as Sirdar, and having deposited ten times rent thereof on 22nd August, 1966, she became a Bhumidhar and sold the land along with the well and the trees to the plaintiff. The defendants' case was a denial of the allegation that the well and the trees in dispute were situate in plot no. 425 and an assertion of the fact that plot no. 683 consisted of 17 Biswas of land out of which only 15 Biswas were included in plot no. 425 during consolidation of holdings operations and that the remaining two Biswas, which contained the well and the trees, were allotted to the defendants. They further asserted that the well had been constructed by their father Khamni some 23-24 years before. The written statement is dated 5th September, 1969, and accordingly 23-24 years before that would take us to the year .1945-46 which was before the Abolition of Zamindari. The further plea raised by the defendants was that they had been irrigating their fields from the well in question openly as of right and without any interruption or obstruction from any one for more than 20 years, and were also entitled to continue to do so under section 30 of U. P. Consolidation of Holdings Act. About the trees it was alleged that they were planted by their father Khamni and tended by them and were situated in their plot no. 423 which was Abadi. The learned Munsif framed the following issues : 1. Whether the plaintiffs the owner of the well and trees in suit ?

(2.) WHETHER the well' and trees in dispute lie in plot no. 425 ? If so its effect ?