JUDGMENT S.S. Ahmed, Member. - This is a defendants' second appeal direct against the order of Additional Commissioner Allahabad Division, dated September 8, 1975, dismissing the appeal filed by Mahmood Ahmad and others, against the judgment and decree dated June 9, 1975, passed by S.D.O. Chail, Distinct Allahabad in a case u/s 167 and 206 of the U.P.Z.A. and L.R. Act. 2. The facts the case may be briefly recapitulated. The Gaon Sabha of village Asadullahpur Rohi brought a suit u/s 176 and 206 of Act 1 of 1951, for the ejectment of Mahmood Ahmad Kamta Prasad, Lalit Prasad, Radhey Shayam and Krishna Kumar from the plots in suit on the ground that Mahmood Ahmed, the sirdari of these plots had transferred them to Kamta prasad and three other contrary to the provision of U.P.Z.A. and L.R. Act with the result that his right in the said land had been lost and defendants 2 to 5, in whose favour the transfer was made, were liable to ejectment along with the transferor Mahmood Ahmad. A sum of Rs. 500/- was also claimed as damages. 3. Mahmood Ahmad and four other defendants contested the suit on the grounds that Mahmood Ahmad was the bhumidhar of the land in suit and was entitled to make such use of the land as he liked. It was denied that Kamta Prasad, Lalta Prasad, Radhey Shayam and Krishna Kumar had acquired any right or title in the land because Mahmood Ahmad had only entered into a partnership with them for the purposes of bricks business and the formation of such a partnership could not be regarded as a transfer of lease which may confer any right or title on the four defendants who had entered into partnership with Mahmood Ahmad. They also maintained that the instant suit had been filed without any valid resolution of the Land Management Committee authorizing the institution of such a suit. 4. The suit was decreed by the trial court and the five defendants went up in appeal before the Additional Commissioner who dismissed it. The defendant have now come up in second appeal before the Board. 5. I have heard the learned counsel for the appellant as well as the learned D.G.C.(R). 6. 4. The suit was decreed by the trial court and the five defendants went up in appeal before the Additional Commissioner who dismissed it. The defendant have now come up in second appeal before the Board. 5. I have heard the learned counsel for the appellant as well as the learned D.G.C.(R). 6. According to the learned counsel for the appellant, Mahmood Ahmad is not a sirdar but a bhumihdar and hence the filing of this suit under Section 167 and 206 of the U.P.Z.A. and L.R. Act is totally incorrect. 7. Next, he has contended that even though a bhumidhar is fully entitled to transfer his holding, yet in the instant case there has been no transfer either by way of transfer or a lease; and 8. Finally, he was submitted that in the absence of a resolution by the Gaon Sabha, authorising the institution of this suit, the suit is not maintainable at all. 9. The learned D.G.C. (R) has conceded that Mahamood Ahmad is not a sirdar but a bhumidhar but has pointed out that he acquired bhumidhari rights only 13 days before the lease was executed. 10. Secondly, he has argued that the bhumidhar can transfer land only in accordance with the provisions of the Z.A. and L.R. Act and that the power of transfer by sale gift etc. does not include the power to let out his holding to any person. 11. Finally, he has drawn my attention to the fact that the plaint contains an averment to the effect that the Gaon Sabha has passed the necessary resolution and it is not necessary that the resolution may be passed prior to the suit, it can be passed even after the suit has been instituted. 12. The contentions of the rival counsels may not be examined in some detail. The fact that Mahmood Ahmad was a bhumidhar on the date when he executed the so called lease, is accepted and cannot be denied. It is, thus, obvious that no suit could have been field u/ss 167 and 206 of the U.P.Z.A. and L.R. Act both of which pertain to sirdars. 13. It is the nature and contents of the so-called lease which are really important. According to the learned counsel for the appellant, this is not 'lease' but a 'licence'. It is, thus, obvious that no suit could have been field u/ss 167 and 206 of the U.P.Z.A. and L.R. Act both of which pertain to sirdars. 13. It is the nature and contents of the so-called lease which are really important. According to the learned counsel for the appellant, this is not 'lease' but a 'licence'. The difference between a 'lease' and a license has been clearly brought out in two cases of the Supreme Court, namely, Shanta Bai v. State of Bombay A.I.R. 1958 (S.C.) p. 532, and Associated Hotels of India v. R.N. Kapoor A.I.R. 1959 (S.C.) P. 1262 According to these cases, when a document creates an interest in the property, it is a lease and a lease is thus a transfer of interest in land. The interest transferred is called a leasehold interest. The lessor parts with his right to enjoy the property during the terms of the lease. On the other hand, when a document only permits another person to make use of the property of which the legal possession continues with the owner, it is a 'licence'. The learned counsel had maintained that by entering into an agreement with the other defendant into partnership for business that is, bricks business, Mahmood Ahmad has only given the partnership concern which includes the other defendant the licence to remove soil from his land for the purpose of a brick kiln but he continues to enjoy all rights and interest in the property with the result that the document execute by him cannot be regarded as a lease it is only a license. More or less the same view has been held by the Allahabad High Court in the case of Kubar Nath Kandu v. Gorakh Prasad. The learned D.G.C. has urged that these cases are clearly distinguishable from the instant suit because they pertain to the produce of the property. In the present case the propose of the partnership was to remove the solid from the land which cannot be said to be produce of soil. According to him the document executed by Mahmood Ahmad, defendant amounted to a lease and not a licence. In support of his view, he referred to the case of Tak Chand v. Deputy Director of Consolidation. According to him the document executed by Mahmood Ahmad, defendant amounted to a lease and not a licence. In support of his view, he referred to the case of Tak Chand v. Deputy Director of Consolidation. On perusing this case carefully, I find that instead of going in favour of Gaon Sabha it goes against it in so far as it has been held that the rights of the bhumidhar are not extinguished, if he executes a lease for the purposes of digging earth and establishing a brink-kiln. In this case the distinction between a lease and a licence has not been discussed and I do not find any authority to support the contention of the D.G.C. (R) that if a person who is also a bhumidhar entered into any transaction in the nature of lease for the setting up of brick-kiln., the right of that bhumidhar will be extinguished and he will be liable to ejectment. It has been shown above that no suit is maintainable u/ss 167 and 206 of the U.P.Z.A. and L.R. Act because Mahmood Ahmad is a bhumidhar and not a sirdar. This suit could be held to lie u/s. 165 read with Section 164 of the U.P.Z.A. and L.R. Act but when examined carefully, it will be found that even this is not a correct interpretation of this provisions of Act 1 of 1951. Section 142 of the U.P.Z.A. and L.R. Act lays down that a bhumidhar shall subject to the provision of this act, have the right to the exclusive possession of all land in respect of which he is a bhumidhar and to use it for any purpose whatsoever. The words which are highly significant in this section are 'to use it for any purpose whatsoever'. The restrictions on the unlimited and exclusive possession of his holding by a bhumidhar are of two types. Firstly, those which imposes certain constraint on his right to transfer or let out his land and secondly, those which prescribe conditions for the use of this land. The restricts of the former type are envisaged in Section 154, 155 and 156 of the U.P.Z.A. and L.R. Act and the case of Allahabad High Court, referred to by the learned D.G.C. (R) Tek Chand v. Deputy Director of Consolidation, in fact pertains to these restrictions. The restricts of the former type are envisaged in Section 154, 155 and 156 of the U.P.Z.A. and L.R. Act and the case of Allahabad High Court, referred to by the learned D.G.C. (R) Tek Chand v. Deputy Director of Consolidation, in fact pertains to these restrictions. Section 157 relates to lease by a disabled bhumidhar with which we are not concerned in the instant case. The other type of restrictions are those which pertains to the use of the land. A bhumidhar is supposed to use his land for agriculture and allied purpose, namely, Agriculture, Horticulture, Animal Husbandry, Pisciculture and poultri forming. In case the bhumidhar want to use it for industrial or residential purpose, he has to obtain a declaration to the effect from the Assistant Collector-in-charge of the sub-division, as laid down in Section 143 of the U.P.Z.A. and L.R. Act. Section 144 of the same Act contemplates the eventuality when a bhumidhar utilises his holding for any purpose other than Agriculture, Horticulture etc. According to this Section the bhumidhar is not to penalised in any manner but it is the person other than the Bhumidhar in possession of the plot included in the bhumidhar's holding who is liable to penal consequences. In other words, the right of a bhumidhar will not extinguish in his holding and he will not be liable to eviction if he himself uses the land for any purpose other then Agriculture, Horticulture etc. This interpretation of section 143 and 144 is fully borne out by the wording of Sections 189 and 190 of the U.P.Z.A. and L.R. Act. Section 189 and 189 lays down the conditions in which the interest of a bhumidhar shall be extinguished. Section 190 spells out the conditions in which the interest of a sirdar in this holding shall be extinguished. A comparison of sub-section (aa) of section 189 and sub-section(cc) of section 190 will go to show in a very unambiguous manner as to what has been the intent of the legislature is this regard. According to sub-section (aa) of Section 189, the interest of a bhumidhar in his holding shall be extinguished when the holding or part thereof has been 'transferred or let out' in contravention of the provisions of this Act. According to sub-section (aa) of Section 189, the interest of a bhumidhar in his holding shall be extinguished when the holding or part thereof has been 'transferred or let out' in contravention of the provisions of this Act. Sub-section (cc) of Section 190 provides that the interest of a sirdar shall be extinguished when the holding or part thereof has been 'transferred, let out or used' in contravention of the provisions of this act. It is highly significant to note that while the word 'used' has been incorporated in sub-section (cc) of Section 190, it is conspicuous by its absence in sub-section (aa) of section 189 of the U.P.Z.A. and L.R. Act. There can be no better indication of the fact that while the interest of the sirdar will be extinguished if he uses his land for any purpose other that Agriculture, Horticulture etc., the interest of a bhumidhar will not be extinguished even if he uses the land for the purposes other than Agriculture Horticulture etc. It will thus be very, obvious that as long as the bhumidhar retains the land in his own possession, he may use it for whatever purpose he likes and his interest in the holding will not be extinguished merely by the fact that he is not putting his holding to its proper use. 14. Judged by the above criteria, the case of Mahmood Ahmad is absolutely unassailable and he cannot be accused of misusing his land and thus rendering himself liable to eviction from his holding. There is on e other aspect of the case which has to be viewed in the same light. It pertains to the transfer or letting out his land in contravention of the provisions of the act. It has formed a partnership with the other defendants in the suit, is not a lease it can be described as a licence. In view of the fact, however, that Mahmood Ahmad himself is a partner in the brick making business even this licence cannot be said to be of a type which may amount to some sort of transfer. As long as Mahmood Ahmad retains his holding in his own name as a bhumidhar, it is absolutely immaterial, for the purpose of this Act as to what business he carries on there and in whose partnership. As long as Mahmood Ahmad retains his holding in his own name as a bhumidhar, it is absolutely immaterial, for the purpose of this Act as to what business he carries on there and in whose partnership. It will be other provisions of there enactments which may impose restriction on the use of his holding but surely the U.P.Z.A. and L.R. Act does not envisage any penal consequences so long as the bhumidhar is himself in possession of his holding. Thus, for instance if a bhumidhar wants to set up a brick on his land, he will not be able to get a license under the Brick-Control order, unless the authorities concerned have satisfied themselves that the putting up of such a brick kiln will be hazardous to the fruit crops of the neighbouring orchards. Similarly, in case the bhumidhar wants to set up a temporary Cinema House on his holding, he will not be able to get the required licence under the Indian Cinematograph Act without satisfying the authorities that the necessary conditions for a licence under that Act have been complied with. Or taking still another example if a bhumidhar want to set up a Sugarcane Crusher on his holding, he will be perfectly at liberty to do so in case he is able to get the required licence from the Came commissioner. All these instances have been cited to show that the interest of a bhumidhar will not be extinguished as a result of the fact that he uses his holding for purposes other than Agriculture so long as he retains possession of his holding and that unless his interest is extinguished in accordance with Section 189 of the U.P.Z.A. and L.R. Act, he will be liable to ejectment from his holding. 15. In the end on last plea of the appellants may be considered. Their learned counsel has contended that this suit could not have been brought against them without a proper resolution from the Gaon Sabha. The passing of such a resolution, has been pointed out, is mandatorily required by para 128 of the Gaon Samaj Manual. Non-compliance with this para, will be a fatal defect in the maintainability of this suit. For this proposition, the learned counsel has relied on the case of Sardar Khan v. Gaon Sabha R.D. 1975, 287. The passing of such a resolution, has been pointed out, is mandatorily required by para 128 of the Gaon Samaj Manual. Non-compliance with this para, will be a fatal defect in the maintainability of this suit. For this proposition, the learned counsel has relied on the case of Sardar Khan v. Gaon Sabha R.D. 1975, 287. The learned D.G.C. (R.) pointed out that in view of the averment contained in the plaint, such a resolution must have been passed. However, no such resolution is on the record of this case. There is no doubt that one resolution was passed by the Gaon Sabha and it is on the record of this case but it does not authorise the Pradhan or anybody else to file a suit on behalf of Gaon Sabha. According to this resolution, the setting up of a Brick Kiln in that area was likely to cause injury to the agriculture crops and the produce of groves and hence the S.D.O. was requested that suitable steps may be taken to ensure that the Brick Kiln is not set up. In pursuance of this resolution, the S.D.O. should have contacted the D.S.O. (The Prescribed Authority under the Brick Control Order) to ascertain if these was any truth in the allegation that the setting up of this brick kiln was likely to jeopradize the well being of agricultural and horticultural crops in that vicinitly and, if so, the D.S.O. would have certainly refused the required licence. By no stretch of of language can this resolution be taken to mean that it empowered the Pradhan or any other person to lunch the legal proceeding contained in the instant suit. I am, thus, fully satisfied that the compliance of the mandatory provision of Para 128 of the Gaon Samaj Manual has not been done and hence the suit cannot be regarded as maintainable. 16. In view of these facts, I find that the appeal must succeed and is according allowed. The judgments and orders of the trial court as well as the first appellant court are hereby set aside and the suit will stand dismissed throughout. 17. However, the parties will bear their own costs.