N. N. Mithal, J. - (1.) THE petitioners seek a writ of certiorari for quashing the judgment and order dated 12-8-1987 passed by the Addl. District Judge, Gyanpur confirming the decision of the Munsif dated 28-7-87 whereby an injunction sought by them has been refused. Since the parties have already exchanged counter and rejoinder affidavits a joint request was made that the writ petition itself may be disposed of. THE learned counsel were, therefore, heard on merits of the writ petition also.
(2.) THE petitioners are Harijan residents of the village to whom some building plots carved out of survey plot No. 99 had been allotted for raising their houses and admittedly they are in possession thereof. In plot No. 99 there exists an old masonary well and the petitioners claim a right to draw water from it for drinking purposes. Since opposite parties Nos. 3 to 5 wanted to instal a diesel pump for drawing water for irrigating their fields asserting their ownership on the well, the petitioners had to rush to the court for seeking a restraint order. Both the courts below have found against the petitioners holding that they do not have prima facie title to the well in question and that opposite parties 3 to 5 has been irrigating their fields from their well from before the abolition of Zamindari. While petitioners claimed that it was their ancestors who had constructed the well in question, the opposite parties nos. 3 to 5 claimed that their forefathers had done so. Initially an effort was made to raise the question as to who had constructed the well but later on the plea was abandoned for the purposes of this petition. Therefore, without entering into the aforesaid controversy I feel that the matter can be decided on a legal plane. Before the date of vesting, plot No. 99 was within the estate of opposite party Nos. 3 to 5. A notification under section 4 headed the advent of UP ZA & LR Act, 1951 with effect from 1-7-1952 as a result of which all the rights of intermediaries in certain properties were divested and instead got vested in the State of U. P. in view of section 6 thereof and the consequences that follow include the following : (a) All rights, title and interest of all the intermediaries :- (i) In every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub-section (1) of section 18 apply) and'...............
(3.) IT will be noticed that wells are conspicuous by their absence from various properties enumerated therein as regards which rights of the intermediaries have been extinguished. Section 9 of the Act on the other hand is in the nature of exception and it only saves the rights of intermediaries, tenants or other persons in respect of the various properties mentioned therein. While section 6 of the Act divests that intermediaries of their rights, section 9 saves certain rights and the two must therefore be read together to determine the extent to which rights in wells have been extinguished or saved by the Act. IT is, relevant, therefore to have a look at section 9 also which is in these terms : "All wells, trees in abadi, and all buildings situate within the limits of an estate belonging to or held by a intermediary, 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." On a plain reading of the section it appears to me that all wells irrespective of the fact whether these are in abadi or outside it shall be deemed to have been settled with the intermediary, tenant or other person to whom it belonged or by whom it was held on the date of vesting along with area appurtenant thereto.;