O.S.P. Singh, J. - (1.) ONE Gulab Rai, the predecessor -in -interest of the present Petitioner was the Zamindar of village Sarai Ajitmal, Distt. Etawah. Two agreements, one dt. 10 -3 -1907 and the other dt. 25 -3 -1907, appear to have been entered into between him and the State Govt. in respect of certain portion of land comprised in plot No. 158. The agreements were to the effect that Gulab Rai would permit the State Govt. to build a cattle pound on the land comprised in the agreements without payment of compensation and that the Govt. would continue in possession of this building till such time that the cattle pound continue and thereafter the Zamindar would get back the land and the building standing thereon. Zamindari was abolished in 1952 and thereafter, on 7 -9 -1968 the Petitioner, who was the successor -in -interest of Gulab Rai made an application to the State Govt. for return of the land on the ground that the cattle pound which had been constructed in pursuance of the agreements, 1907, had fallen down and no cattle pound was being maintained on the land covered by the said agreements. The State Govt. directed the Collector to submit a report on this application. The Collector vide his report (Annexure 'V' to the petition) stated that the cattle pound which stood on plot No. 158, had fallen down and the present cattle pound had been built on another plot. He, however, stated that inasmuch as the land vested in State Govt. after the enforcement of the Z.A. and L.R. Act, the question of returning the land did not arise. Subsequently, the State Govt. passed an order on 16 -2 -1970, on the application of the Petitioner that inasmuch as the land had vested in the State Govt. after the enforcement of the U.P. Z.A. and L.R. Act, the land could not be returned to the descendants of the erstwhile Zamindar. The Petitioner has challenged this order by way of this writ petition and apart from the prayer that the order be quashed has also prayed for a direction to the Respondents to return back the land to him.
(2.) COUNSEL for the Zila Parishad, Etawah, which has been arrayed as Respondent No. 3, took an objection that the proper remedy of the Petitioner was by way of a suit and as much, the petition] should not be entertained. Counsel for the Petitioner, however, stated that he was not seeking any relief against the Zila Parishad as in the first; place the cattle pound in which the Zila Parishad is interested does not stand on the disputed land and secondly, that he would net interfere with the cattle pound being run by the Zila Parishad even in the event the writ petition succeeds. He also seated that he does not seek relief against the Zila Parishad now in this petition. This being so, the Zila Parishad does not have any locus standi to raise this objection. Apart from this consideration, the petition having been entertained by this Court, it will not be advisable to threw out the petition on this ground now. No counter -affidavit on behalf of the State has been filed in this case. This being so, one has to proceed on the assumption that the land in question belonged to the ancestor of the Petitioner and that the cattle pound built in pursuance of the agreements 1907 had fallen down. The question that arises is as to whether the Petitioner who is the descendant of the erstwhile Zamindar has any title left to the disputed land on account of the enforcement of the Z.A. and L.R. Act. As a result of a notification Under Section 40 the Act being issued, all rights of Zamindars in their estates have come to an end. Certain rights are, however, saved by Section 9 of the Act which is extracted below: Section 9. Private wills, trees in abadi and buildings to be settled with the existing owners or occupiers thereof. All wells, trees in abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person] whether residing in the village or not shall continue to belong to or be held by such intermediary, tenant or person, as the case may be and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Govt. on such terms and conditions as may be prescribed. The Petitioner can succeed only in case it is established that the cattle pound built by the State Govt. ;n pursuance of the agreements 1907 belonged to him or was held by him on the date of vesting and if this is so the site of the building and the area appurtenant thereto would be deemed to be settled with him by the State Govt. Now under the agreements 1907 it was that State Govt. which constructed the building. If the agreements had not contained a clause for reversion of the land along with the building in the event of the cattle pound not being run by the State Govt. the Petitioner could not have got any advantage of Section 9 of the Act, for then it could not be said that in law the building belonged or was held by him on the date of vesting. In view of the reversion clause, however, the right of the State Govt. qua the building constructed over it was only that of a licensee and that licence was to come to an end in the event of the cattle pound being closed. It is not clear as to whether this cattle pound was functioning on the date of vesting. We may assume that the cattle pound was in existence and being run on the date of vesting. Even if this position obtained, the status of the State Govt. being only that of a licensee, the site of the building would still be deemed to be settled with the Petitioner See Akhtar Mohammad Khan v. Kanchhid, 1963 AWR 283, where it was held that a tenant of a house cannot claim rights Under Section 9 of the Act and it is the landlord alone who gets the benefit of this section. The case of a licensee stands on a weak footing and as such, the principle laid down in the case of Akhtar Mohammad Khan v. Kanchhid (supra) applies to the present case. The result is that on account of Section 9 of the Act, the site of the land was settled with the Petitioner and the view to the contrary taken by the State Govt. does not appear to be sound and the order dt. 17 -8 -1971, as such has to be quashed. Further question remains as to whether the Respondents Nos. 1, 2 and 4 should be directed to return back the land to the Petitioner. The Petitioner appears to be out of possession as he has asked for the return of possession of the land and although no plea of adverse possession has been taken by the Respondents, it will not be appropriate to grant this part of the relief. The Petitioner, if he so chooses, may file a suit for recovery of possession.
(3.) THE writ petition is accordingly allowed to the extent that the order dt. 17 -8 -1971 (Annexure 'VII' to the petition) is quashed. The relief for possession is however, refused. The Petitioner, if he so chooses, may file a suit for recovery of possession. There shall be no order as to costs.;