JUDGMENT Kaushal Kishore, Member - In this reference dated 15-4-1985 the learned Additional Commissioner, Meerut Division, Meerut, has recommended that the order of injunction dated 11.12.1984 passed by the learned trial court under section 229-D of the U.P.Z.A. & L.R. Act may be set aside. 2. I have heard the learned counsel for the parties and have also perused the record. 3. This was a case under section 229-B of the U.P.Z.A. & L.R. Act filed by the sons of Nagina while Nagina defendant no. 1 is the recorded bhumidhar of the land in suit and by sale deed executed on 11.7.1983 in favour of defendant no. 3 sold the right to take out earth upto 3 feet deep for making bricks. I agree with the learned first appellate court that the plaintiffs had to show that the suit was prima facie maintainable and that the land had been ancestral Sir or khudkasht in which the plaintiffs had a right by birth since before vesting, having been born before 1-7-1952. But this was not shown by any extracts from the village records pertaining to 1359F or other evidence. Therefore, there was no basis of joint family property and sous could not claim to be co-sharers with father. In other cases, if the property was acquired by joint family funds it had to be so established as argued by the learned counsel and supported by the ruling reported in 1970 RD. No such joint family funds were established. 4. I also agree with the learned Additional Commissioner that Nagina the owner having sold the earth of the land in suit upto 3 feet deep as shown by the sale deed on record, there was no case for a claim that the defendant no. 3 Anil Kumar should not take out the earth. Much less was there any case for injunction under section 229-D of the Act against the defendant No. 3. The learned trial court should have seen the counter claim also before passing the order. There was no waste or damage to property as envisaged under section 229-D but all action to take out earth was in accordance with the terms of the sale deed. The question of change of the nature of the land does not arise if the said change is itself stipulated in the sale deed in favour of the defendant no. 3. The question of change of the nature of the land does not arise if the said change is itself stipulated in the sale deed in favour of the defendant no. 3. The injunction order passed on 23-11-1984 and confirmed by the order dated 11-12-1984 cannot be in judicial exercise of jurisdiction by the learned trial court. Rather, it must be deemed an illegal exercise be jurisdiction and the order deserves to be set aside. 5. Lastly, I must observe that the learned trial court failed to examine the plaint on presentation which can only be said to be carelessness. There was no notice under section 80 issued to the State and the plaintiff was bold enough to contest that objection in this regard could be taken only by the State. The learned Additional Commissioner has referred to 1976 RD 367 and reconciled with the view that notice under section 80 was not necessary. The learned trial court merely said that there was no consideration of maintainability of the suit but of the injunction order under section 229-D and so waived away the objection by the defendant no. 3. I must observe that the provision under section 80(2) of the C.P.C. has not been properly appreciated by the courts below. Its application is subject to leave of the court, and if leave of the court is not granted, the plaint is to be returned for presentation to the court after compliance of section 80 (1), which includes that the plaint shall contain a statement that such notice has been so delivered or left. 6. It is not that an issue is to be framed and decided in due course, on the point whether the suit is barred under section 80 C.P.C. Such procedure of framing issue arises only when the plaint says that notice under section 80 C.P.C. has been delivered to the State and the defendant denies the same but no question of entertaining the plaint arises if the aforesaid averment about delivery of notice under section 80 CPC to the State is not contained in the plaint. Without such averment the plaint cannot be entertained and the suit is not maintainable. Without such averment the plaint cannot be entertained and the suit is not maintainable. Maintainability of the suit strikes at the very root the jurisdiction of the court and the learned trial court had no power to postpone consideration of maintainability in favour of any other consideration like that of injunction under section 229-D of the Act Indeed, it was incumbent on the learned trial court to return the plaint without looking into the question of injunction. 7. The ruling reported in 1976 RD 367 which lays down that notice under section 80 CPC is not necessary in a case under section 229-B of the Act can hardly be called good law, in the face of Full Bench ruling of the Board in Jagnu v. Birbal, reported in 1976 RD 244. The ruling in 1969 RD 368 was overruled and to the question under reference. (i) Whether in all cases under the U.P.Z.A. & L.R. Act in which the State Government is to be mandatorily impleaded as a necessary party, is the service of notice under section 80 CPC to the State a condition precedent for the entertainment of such a suit ? the answer by the Bench was in the affirmative. This is also the generally accepted view of the Allahabad High Court. The learned Additional Commissioner should have known better than to rely on the ruling in 1976 RD 367 which is no good law. 8. In the result, I find the reference acceptable, allow the revision petition with costs, set aside the orders by the learned trial court dated 11-12-1984 and 23-11-1984 and further direct the learned trial court to return the plaint for want of compliance under section 80 (1) of the CPC and want of any leave of the court The plaint could be filed again after due compliance of section 80 (1) of the CPC including the averment about delivery of the notice to the State.