JUDGMENT J.K. Tandon, J. - There is a ferry known as Dhumri ferry situate at mile 17th on Etah Aliganj Road across the river Kali Nadi in Etah district. The petitioner, who is Rai Prakash Narain, claims that the above ferry belonged to him and his ancestors through a grant made in their favour some time after 1857 and that ever since he and his family have been exercising the rights over it. On one bank of the river is situate village Dhumri, by which name the ferry is also known, and on the other bank is situate village Rajpur. These villages, according to the petitioner, did not belong to them earlier having been acquired by the family subsequently only in 1898 but the ferry belonged to them earlier also as property independent of the ownership of these villages. The purpose in making this allegation is that the ferry was in no sense a part of the Zamindari of these two villages. In support of his allegation that the ferry has nothing to do with the property in these two villages, the petitioner has further pointed out that on the income that the family earned from this ferry it had been paying income tax continuously from 1941. 2. It is well known that on the 1st of July 1952 all the Zamindaris in the State of Uttar Pradesh were acquired under the U. P. Zamindari Abolition and Land Reforms Act, 1950. According to sub-clause (i) of clause (a) of Sec. 6 of that Act one of the consequences following the acquisition of Zamindari was that all rights, title and interest of the intermediaries in every estate, as defined in that Act, including amongst other items ferries also ceased and vested in the State of Uttar Pradesh. Basing, therefore, its claim on the above provision in the U. P. Zamindari Abolition and Land Reforms Act, the State Government claimed that with effect from 1st of July 1952 this particular ferry also vested in its favour and the rights, title and interest of the petitioner ceased there in. The State also took over its possession and started leasing out the ferry. The State also took over its possession and started leasing out the ferry. The stand taken by the State, as has been asserted in the counter affidavit also, was and is that this ferry was part and parcel of the Zamindari rights of village Dhumri, as such petitioner's right came to an end under Sec. 6 (a) (i) of the Act. 3. Prior to the filing of the present petition Rai Girendra Narain, who is petitioner's uncle, moved another writ petition, being no. 610 of 1953 before this Court challenging the validity of the action of the Collector taking possession of this ferry in consequence of acquisition of Zamindaris. This petition was later withdrawn or allowed to be dismissed, as it was pointed out that certain questions of fact needed to be enquired into which could usefully be done in a regular suit only. Another fact, which has been stated by the petitioner is that his father entered into a contract to work this ferry with the District Magistrate on contract basis at the rate of Rs. 200/- per month in 1952. Later the contract money was reduced to Rs. 175/- per month. The petitioner's contention in this connection is that his father was ignorant about the true legal position when he consented to take this theka from the district authorities. In any case, his contention further is that he is in no way bound by it nor bound to make the payment agreed to by his father. Further according to the petitioner after the true position had been discovered, he wrote to the Land Reforms Commissioner to pay him compensation in respect of this ferry which the latter refused, taking the stand as it appeared that the ferry was part of the Zamindari for which compensation was determined under the U. P. Zamindari Abolition and Land Reforms Act and no separate compensation was payable. This was done on August 11, 1956. Thus having failed to get redress in this manner, the petitioner moved the present petition asking that either the ferry be restored back to his possession or the State of Uttar Pradesh be asked to pay compensation for the same. He has also asked the relief to restrain the respondents from realising the theka money for the period 1953 to 1959 which they are doing at the rate of Rs. 1751- per month. He has also asked the relief to restrain the respondents from realising the theka money for the period 1953 to 1959 which they are doing at the rate of Rs. 1751- per month. The grounds urged are that the ferry was not part of the zamindari of village Dhumri, on the other hand, was a separate property which could neither be acquired under the U. P. Zamindari Abolition and Land Reforms Act nor compensation given therefor under it. It could be acquired under the provisions of the Northern India Ferries Act but that Act also required compensation to be paid. He has also relied on Article 31 of the Constitution. 4. The position taken by the State is that the ferry in dispute is part of the Zamindari of village Dhumri which was acquired under the U. P. Zamindari Abolition and Land Reforms Act. in support, it has relied, inter-alia, on the theka obtained by the petitioner's father and, incidentally on the fact that an earlier petition presented by the petitioner's uncle was allowed to be dismissed. As regards the theka money the State's reply is that the petitioner's father having entered into the contract with the State Government the petitioner was bound to pay it. 5. In order to decide this petition one important fact which will require determination is whether the ferry in question was part of the Zamindari of village Dhumri as claimed by the State or did it form an independent item of property belonging to the petitioner's family apart from the Zamindari of village Dhumri. But before I went on to answer this question it is worthwhile to mention that Dhumri ferry is admittedly in existence since over 100 years. It again is not disputed that it used to be a private ferry belonging to the petitioner's family since at least 1859 and onwards. In the notice, dated 9th April 1950, issued by the District Magistrate, which is Annexure III to the petitioner's main affidavit, it was admitted that this ferry was an old ferry belonging to the petitioner's family. In an earlier notice by the Sub-Divisional Magistrate Aliganj dated 26th December 1948, it was again accepted that it was a private ferry though it was proposed to declare it to be a public ferry under the Northern India Ferries Act. In an earlier notice by the Sub-Divisional Magistrate Aliganj dated 26th December 1948, it was again accepted that it was a private ferry though it was proposed to declare it to be a public ferry under the Northern India Ferries Act. It may in view of these documents be taken as admitted that the ferry in question was a private ferry belonging to the petitioner's family for which the State was also prepared in 1948 to pay compensation under the Northern India Ferries Act. 6. To revert now to the main question, namely whether it was part of the Zamindari of village Dhumri, the petitioner has produced copy of the sale deed made in 1898 by which the family purchased village Dhumri. Earlier this village belonged to Mohd. Ali Khan and his brother Ahmad Ali Khan. But so far as the ferry was concerned it belonged to them even earlier as is evidenced by Annexure IV dated 9th July 1857. From this document it appeared that the petitioner's family was running this ferry for the benefit of itself and others even in those days. It thus followed that the ferry was not part of the zamindari of village Dhumri which at that time belonged not to this family but to other persons. There is nothing in the sale deed of 1898 either to show that the owners of village Dhumri were entitled to this ferry, much less that they transferred it to the petitioner's family as part of the zamindari of village Dhumri. On behalf of the State no document has been produced to show that this ferry was part of the zamindari of this village except the fact of its situation between that place and village Rajpur on the other side of the river. But the right of a Ferry is not necessarily appurtenant to land as was observed in Nityahari Roy v. Dhunne, I.L.R. 18 Cal. 652 This right "is wholly unconnected with the ownership or occupation of the land and it is not necessary that a ferry owner should have any property in the soil of the river over which he has a right of ferry, nor again is it necessary that he should be the owner of the landing places of the ferry, it being sufficient that they are in a public highway, or that otherwise he has a right to land upon them. The ferry owner does not occupy the highway over the river, but has merely a right to make a special use of it." 7. In the present case it is not denied that this ferry is situate on a public highway connecting Etah with Aliganj. A ferry owner has a right to make use of a highway and it does not depend, either on any right to land upon which the highway runs or of his ownership of the landing places, which right is wholly independant of the right to these lands. The fact, therefore, that village Dhumri or, for the matter of that Rajpur did not belong to the petitioner's family or he was not the owner of the road connecting Etah with Aliganj, and still the ferry belonged to him showed once again that it was not part of these villages. It cannot, therefore, be termed as any right, title or interest of the intermediaries who were entitled to village Dhumri and Rajpur. 8. Under Sec. 6 of the U. P. Zamindari Abolition and Land Reforms Act the rights, title and interest of intermediaries in the estates have alone vested. Where, therefore, a particular ferry, as the one here, is unconnected with any estate acquired under the Act, it will continue despite the acquisition of the Zamindari under Sec. 4 of the Act, to belong to its previous owner. Sub-cl. (1) of cl. (a) of Sec. 6 will not entitle the State to claim this ferry. The petitioner's grievance against taking over its possession by the State under the provisions of the U. P. Zamindari Abolition and Land Reforms Act is correct. 9. Under Sec. 4 of the Northern India Ferries Act the State may take possession of any private ferry and it can declare it to be a public ferry. Under Sec. 5 where any private ferry has been taken over under the above provision, compensation is payable to the owner of the ferry. As a matter of fact when it was proposed to take over the ferry by the State in 1949, an offer was made by the Sub-Divisional Magistrate Aliganj on 26th December, 1948 for assessment of the amount under Sec. 5. As a matter of fact when it was proposed to take over the ferry by the State in 1949, an offer was made by the Sub-Divisional Magistrate Aliganj on 26th December, 1948 for assessment of the amount under Sec. 5. What, however, appears is that after the zamindari had been acquired no further action was taken on this notice on the assumption presumably that the ferry had vested in the State of U. P. by virtue of the notification under Sec. 4 of the U. P. Zamindari Abolition and Land Reforms Act. This, however, was not correct. As stated above the ferry not being part of the estate acquired under the said Act, was not governed by the provisions in that behalf contained in the U. P. Zamindari Abolition and Land Reforms Act. The petitioner can, therefore, claim compensation in respect of it under the Northern India Ferries Act. His learned counsel also has conceded this point. In fact he has further conceded that it is not necessary to restore back its possession to the petitioner because the State was in any case entitled to take over possession of the ferry under Sec. 4 of the Northern India Ferries Act and his right now is to compensation only. 10. It may be necessary to say a few words about the petition filed by the petitioner's uncle which was dismissed and also the theka entered into with his father. No particular argument has been addressed in their connection by the Learned Standing Counsel which might have demanded specific answer, but apart from it also I do not see how the petition made in 1953 by the petitioner's uncle debarred the petitioner from claiming his right in this petition. Moreover that petition was not decided on merits. The theka obtained by the petitioner's father also cannot estop the petitioner from asserting his right to compensation which belonged to him under the provisions of the Northern India Ferries Act. At the most it can be said that in assessing the amount of compensation to be paid to him any sums realised by the petitioner or his father under and in pursuance of the theka, including any sums payable by him in respect thereof shall be taken into account. 11. In view of the above discussion this petition partly succeeds. At the most it can be said that in assessing the amount of compensation to be paid to him any sums realised by the petitioner or his father under and in pursuance of the theka, including any sums payable by him in respect thereof shall be taken into account. 11. In view of the above discussion this petition partly succeeds. The State of Uttar Pradesh, which is respondent No. I, is directed to assess the compensation payable to the petitioner for the taking over of the ferry in accordance with the provisions of the Northern India Ferries Act, keeping in view at the same time the observations made above with regard to the theka money etc. entered into with the petitioner's father. Having regard to all the circumstances I propose to make no order as to costs.