1. This second appeal arises out of a suit filed by the plaintiff respondents Nos. 1 to 7 for recovery of their half share in the rent realised by the defendant-appellant from the defendant-respondents Nos. 8 to 16, to whom certain shops had been let out. The history, as regards these shops, was that before they had been constructed the plaintiffs-respondents were the Zemindars of this site. Some time before the abolition of the Zamindari. that is on 24-9-1951, the defendant-appellant approached the Zamindars and requested them to give that land to him for construction of the shops. The Zamindars accepted this request subject to certain terms which were embodied in a written agreement dated 24-9-1951 executed between them. One of the terms was that on this Parti land the defendant-appellant would construct the shops at his own expense but the plan of construction shall be approved by both the parties. After the shops had been constructed they would be let out with the consent of both the parties and the rent realised from the tenants of the shoos shall be divided half and half between them. It was, however, specifically provided in this agreement that the owner ship of the land would always vest in the Zamindars while the ownership of the constructions shall vest in the defendant-appellant, but the two ownerships shall not be separated from each other and none of the parties can transfer the ownership of his individual property. The agreement will remain in force for ever and be binding not only on the parties but their successors also.
2. After the abolition of Zamindari the defendant-appellant alone started realising rents from the tenants of these shops and appropriating those amounts to himself without paying any share to the plaintiffs-respondents. The plaintiffs-respondents, therefore, filed a suit for recovery of their half share in the rents so realised by the defendant-appellant
3. The suit was contested by the defendant-appellant on the ground that the plaintiffs' ownership in the site of these shops vested in the State Government under Section 6 of the U. P. Zamindari Abolition and Land Reforms Act and thereafter the same shall be deemed to have been settled with the appellant under Section 9. whose shops stood on that land. As such, the plaintiffs could not recover any share of the rent from the appellant in pursuance of this agreement, which could be enforced, if at all, by the State Government through Gaon Sabha under Clause (vi) of Rule 26 of the U. P. Zamindari Abolition and Land Reforms Rules,
4. The trial Court held that both the shops, existing on the land in question, belonged to both the parties and as such their site shall also be deemed to be settled with both of them under Section 9. On this finding the plaintiffs' claim for half the share in the rent was decreed against the defendant-appellant.
5. On an appeal filed by the defendant-appellant, the lower appellate Court disagreed with the finding of the trial Court that the shops in question belonged to both the parties. According to the learned Civil Judge, in view of the specific terms contained in the agreement dated 24-9-1951, the shops belonged exclusively to the defendant-appellant and only their site belonged to the plaintiffs, but he was of the opinion that the shops shall be deemed to be held by both the parties within the meaning of Section 9 and as such both the parties were still entitled to share their rent half and half according to the terms of the agreement. The appeal was accordingly dismissed.
6. It is against this decision that the defendant-appellant has come before this Court by filing this second appeal.
7. I heard the learned counsel for the parties and also perused the agreement dated 24-9-1951. I agree with the lower appellate Court that under the terms of this agreement the land, on which these shops were constructed, belonged exclusively to the plaintiffs, while the shops, constructed on that land belonged to the defendant-appellant and that both the parties could not be held to be the joint owners of the shops or the land. Once it is found that these shops belonged to the defendant, their site would be deemed to be settled with them under Section 9. If a building is found to belong to a person, the question of its being 'held' within the meaning of Section 9 does not arise. Ordinarily, a building is held by the same person to whom it belongs. If, however, it belongs to one person but is held by another the latter would hold it either by virtue of an inferior right granted to him by the owner, for example, as a tenant or he would hold it adversely against the owner. In either case the settlement shall not be deemed to be made with him within the meaning of Section 9. The tenant holds it for and on behalf of the owner and not in his own right for the purpose of Section 9; while the holding of the trespasser is no holding in the eye of law for the purpose of Section 9 as was held by a Full Bench of this Court in Budhan Singh v. Nabi Bux (AIR 1962 All 43) which decision was confirmed in appeal by the Supreme Court also in Budhan Singh v. Nabi Bux (AIR 1970 SC 1880). In this case the respondent had built a house as Riyaya on the land of the appellant who was the Zamindar of the village with his permission. He lived in this house till 1947 when he temporarily left it due to communal disturbances without any intention to abandon it. He returned in 1948 after normal conditions were restored. But in the meantime the appellant had entered in possession of that house which was in a dilapidated condition on the land in his own house which adjoined this house and constructed a new house on it. The respondent filed a suit for recovery of possession against the appellant sometime in 1950 or 1951. It was decreed by the trial Court on 19-1-1952. The defendants filed an appeal which was dismissed by the Civil Judge on 17-7-1952. By this time the U. P. Zamindari Abolition and Land Reforms Act had come in force with effect from 1-7-1952. When the case came in second appeal before this Court a Full Bench of this Court repelled the contention of the appellants that since on 1-7-1952 he was in possession of the site and the new house built on it belonged to him. the land shall be deemed to be settled with him under Section 9. The Bench ruled that the word 'held' in Section 9 means lawfully held. The Supreme Court was of the view that though the new house had been built by the defendant-appellants after pulling down the old dilapidated house of the plaintiff-respondent, that new house shall in the eye of law be deemed to belong to the plaintiff-appellants as a substitute for the old one. The defendants-appellants who entered in wrongful possession of the house could not be deemed to be holding the house within the meaning of Section 9 when the owner had filed a suit for possession against him within limitation which was pending on the date of vesting.
8. These decisions on which reliance is placed on behalf of the plaintiff-respondent are of no help to them. The decision of the Supreme Court shows that under Section 9 the site shall be deemed to be settled with the person to whom the house existing thereupon belongs or is deemed to belong. The only possible case in which it may be deemed to be settled with the person who is in possession of the building is when it does not belong to any other person or when the person to whom it belonged has allowed his remedy to recover possession of it to be barred by limitation bv the date of vesting, that is. 1-7-1952. In such a case the owner can be said to have lost his title under Section 28, Limitation Act and the trespasser to have acquired title by adverse possession.
9. It is not the case here. In this case there is a categorical finding of the lower court that the shops belonged exclusively to the defendant-appellant and not jointly to him and the plaintiff-respondents. That being so. the settlement under Section 9 shall be deemed to have been made with him and not with the persons holding them, assuming they are different persons. I am unable to agree with the learned Civil Judge that the shops shall be deemed to be jointly held within the meaning of Section 9 by the plaintiff-respondents and the defendant-appellant, simply because the former by virtue of their ownership of the site of those shops, were entitled to receive a share in the rent of these shops. If a building exclusively belonging to one of the partners is used for the business of partnership and as such it is in the occupation of the partnership firm, its site cannot be deemed to be settled with the firm simply on the basis of this occupation, but it shall be deemed to be settled only with the individual partner to whom it belongs within the meaning of Section 9. The view taken by the lower court on this point is erroneous.
10. It was next argued on behalf of the plaintiffs that the proprietary rights and other rights which the plaintiffs had in the land on which these shops were constructed under the terms of the agreement shall not vest in the State Government under Section 6 of the U. P. Zamindari Abolition and Land Reforms Act and as such the plaintiffs were entitled to recover their half share from the defendant-appellant. The contention of the learned counsel for the plaintiff-respondents is that the expression 'abadi sites' used in Sub-clause (i) of Clause (a) of Section 6 refers only to vacant sites and not to the sites on which some buildings were standing at the time of vesting. This contention cannot obviously be accepted because there are no qualifying words before this expression 'abadi sites' and as such it would govern both the vacant sites as well as the sites covered by buildings. If the sites covered by the buildings had not vested in the State Government, there was no occasion for the State Government to settle them with the owners of the building under Section 9. As held by the Supreme Court in AIR 1970 SC 1880 (supra) there was first vesting of sites under Section 6 and then their settlement under Section 9. In my opinion Section 6 is all inclusive and all the right, title and interest which the plaintiffs had in the site of these shops vested in the State Government under Section 6. The plaintiffs were entitled to receive half share in the rent of these shops in terms of this agreement only so long as they were the owners of the site. As soon as their right, title and interest in the site vested in the State Government under Section 6. they were no longer entitled to receive any share of the rent payable by the tenants of these shops. This share in the rent was in fact in the nature of rent payable to the owner of the site under the terms of the agreement. After the abolition of the Zamindari, it is the Gaon Sabha which can claim it under Rule 26 (vi) of the U. P. Zamindari Abolition and Land Reforms Rules.
11. Accordingly, I allow this appeal, set aside the judgment and decree passed by the courts below and dismiss the plaintiffs' suit. In the circumstances of the case, the parties are left to bear their own costs.