Shri Narayan Shukla, J.:- Heard Mr. D.C.Jain, learned counsel for the petitioner and learned Standing counsel. 2. The dispute relates to plot Nos. 2609 and 2610 situate in village Barabanki, Tehsil-Navabganj, District Barabanki. 3. The petitioner has challenged the order dated 7.1.1986 passed by Sub Divisional Officer, Barabanki for deleting the name of Raja Mahmoodabad from the revenue records of the aforesaid plots and to record it as evacuee property Government of India. The petitioner claims his owner-ship over the said land on the basis of oral gift executed by one Jubeda Khatoon in his favour. It is stated that initially the land in dispute belonged to Babu Chand Mohan Rai, Zamindar, who transferred the same in favour of Raja Amir Hasan of Mahmoodabad through a registered sale-deed dated 18.01.1900. After the death of Raja Amir Hasan his legal heirs Mohammad Amir Ahmad and his agent Rani Kaniz Abid succeeded to hold the property who executed the sale deed in favour of Smt. Jubada Khatoon wife of Sri Mustafa Kamil Kidwai. 4. The petitioner filed regular suit which was registered as Regular Suit no. 78/1984 in the court of Civil Judge, Barabanki seeking relief to declare him owner of the building together with the land situate in plot no. 2609 measuring 5 bigha 2 biswa and 10 biswansi. During the course of the said suit the Sub-Divisional Officer passed the order impugned to record the land as evacuee property on the report of Tehasildar, Barbanki. The Tehsildar by means of report dated 07.01.1986 reported that Raja Saheb Mahmoodabad-Mohammad Amir Ahmad Khan migrated to Pakistan in 1957 and took citizenship of Pakistan. He died there at. Accordingly under the Enemy Property Act, 1968 the property left in India is liable to be recorded as evacuee property. The petitioner claims that the order impugned has been passed on the basis of report of Tehsildar without issuing notice to the petitioner. It is stated that no doubt the property was purchased by Raja Saheb but subsequently it came to be recorded in the name of Mohammad Amir Ahamad Khan who sold the property to Jubada Khatoon who gifted the same in 1973 to the petitioner, accordingly the petitioner became owner of the land in dispute. It is stated that no doubt the property was purchased by Raja Saheb but subsequently it came to be recorded in the name of Mohammad Amir Ahamad Khan who sold the property to Jubada Khatoon who gifted the same in 1973 to the petitioner, accordingly the petitioner became owner of the land in dispute. It has further been pointed out that in the suit the State through it is written statement never took such plea as the land in dispute is evacuee property. 5. Through supplementary affidavit this fact has been brought on record that the aforesaid regular suit was decreed in favour the petitioner by means of order dated 23.08.1989 whereby the petitioner has been declared as owner of the plot in question. The State Government challenged the said order through Appeal No. 237 of 1989 before Additional District Judge, Barabanki which too was dismissed by means of order dated 13.11.1997. The State filed two second appeals which were registered as Second Appeal Nos. 417 of 1989 and 418 of 1998 before this court. This Court dismissed the appeals by means of order dated 16.8.1999 on the ground of limitation as the same were preferred with delay along with application for condonation of delay under Section 5 of Limitation Act but this Court reject the same. Thereafter, the State also preferred Special Leave Petition before Hon'ble Supreme Court which too was dismissed by means of order dated 18.09.2000. Accordingly he submits that his right over the land in dispute has been confirmed to the stage of Apex Court of country, therefore, there is no reason to record the land in dispute as evacuee property. 6. On the other hand, learned standing counsel Mr. G.S. Mishra submitted that the land in dispute is recorded in Mohal Sarkar in Khatauni 1356F situate in village Barabanki, Tehasil-Nawabgang, District-Barabanki. As per Khatauni Khothi of Raja Saheb, Mahmoodabad is recorded in plot no. 2609, therefore, it was ordered to be recorded as evacuee property. After recording the name of Raja Mahmoodabad an objection has been raised under Section 7 of the Administration of Evacuee Property, Act, 1950 that the order impugned is appealable under Section 24 of the Act. 7. As per Khatauni Khothi of Raja Saheb, Mahmoodabad is recorded in plot no. 2609, therefore, it was ordered to be recorded as evacuee property. After recording the name of Raja Mahmoodabad an objection has been raised under Section 7 of the Administration of Evacuee Property, Act, 1950 that the order impugned is appealable under Section 24 of the Act. 7. On merit of the case it is submitted that the petitioner has never been in possession over the land in dispute and it is always in possession of State Government, in which the Office/Godown of National High Way P.W.D. exist. This fact has been admitted in the plaint of Regular Suit Nos. 78 of 1984 and 190 of 1986 filed by the Petitioner against State of U.P. And Executive Engineer, National High Way PWD, Lucknow. In fact there exists a Khothi over plot no. 2609 measuring 1 bigha 12 biswa and appurtenant land is open land. The possession of State Government has been admitted in the plaint of Regular Suit No. 78 of 1984 filed by the petitioner but in the capacity of tenant. In the suit the petitioner sought only the relief of declaration of his right but he did not seek the relief of possession over the building in dispute. It is stated that in Regular Suit No. 78 of 1984 the petitioner sought relief of declaration of his right without seeking relief of possession, whereas the possession of State over the land in dispute is admitted, though in Regular Suit no. 190 of 1996 he sought the relief of possession but only with regard to open land. Regular Suit no. 190 of 1986 was decided in terms of compromise which was collusive one as neither it was signed nor verified by the competent authority of State of U.P. The said compromise was only singed by an officer of National High Way PWD who had no right to sign thereon. Since in Regular Suit No. 190 of 1986 the dispute of possession of Kothi was not involved, there was no question to hand over the possession of said Khothi on the basis of the said compromise. On the basis of compromise the petitioner succeeded to get decree of possession in Regular Suit No. 190 of 1986 in respect of open land. Since no relief of possession was sought, the decree is also not executable. On the basis of compromise the petitioner succeeded to get decree of possession in Regular Suit No. 190 of 1986 in respect of open land. Since no relief of possession was sought, the decree is also not executable. It is further stated that Mohammad Amir Ahmad is not the son of Raja Saheb Mahmoodabad. In fact Mahraj Kunwar Amir Ali Khan alias Gulzar Hasan has executed power of attorney in favour of Rani Kaniz Abid, therefore, she had no right to transfer the property. Mahraj Kumar Amir Ali Khan moved an application for restoration against the order dated 7.1.1986, by which disputed land was recorded as government property passed in case no 390 which was renumbered as Case No. 60 (99-2000), the same was dismissed on 17.11.99. In this case Raj Kumar Haider Ali moved an objection on 11.11.1999 stating therein that Smt. Rani Kaniz Abid was never appointed general agent and she had no right to execute any sale-deed and in case any sale-deed had been executed in favour of Zubeda Khatoon wife of Mustafa Kamil Kidwai, the same was a void document. In fact, Raj Amir Ali Khan (Raja Amir Ahamd Khan) migrated to Pakistan in the year 1952 and obtained the nationality of Pakistan, who later on died in the year 1973 in Landon, therefore, whatever property belonged to Raj Amir Ali Khan that became evacuee property under section 7A (b) of the Act. Since due to over sight necessary correction could not take place, the name of Raja Mahmoodabad was ordered to be deleted. It is further stated by the respondents that since Zubeda Khatoon had not made any oral gift deed in favour of the petitioner, he had no right to claim over the same. Thus, on the basis of said gift deed mutation made in the revenue records was not binding upon the opposite parties. Opposite parties have clearly denied their capacity to hold the possession over the land in dispute as tenant as no agreement was entered into between the parties. Moreover in the suits no order of ejectment has been passed by the civil court and the court concerned has no jurisdiction to pass the order of eviction. Opposite parties have clearly denied their capacity to hold the possession over the land in dispute as tenant as no agreement was entered into between the parties. Moreover in the suits no order of ejectment has been passed by the civil court and the court concerned has no jurisdiction to pass the order of eviction. The suit filed by the petitioner is barred by section 34 of the Specific Relief Act as admittedly he was not in possession over the land in dispute, but he did not seek relief of possession, therefore it was barred by section 34 of the Act and no such decree has been passed by the court below, therefore, it is stated that decree passed by the civil court without possession is fruitless and inexecutable. 8. Copy of the judgment and decree dated 23rd August, 1989 passed in Regular Suit No. 78 of 1984 as well as 190 of 1986 has been brought on record, upon perusal of which I find that Regular Suit No. 78 of 1984 was declaratory suit and the petitioner has been declared as owner of plot no. 2609 measuring 5 bigha 2 biswa 10 biswansi, whereas Regular Suit No. 190 of 1986 has been decided in terms of compromise. It has been alleged as collusive as well as entered into by incompetent person. 9. Learned Standing counsel submitted that in case of mutation registered under the Municipal Board, Navabganj, Barabanki between Khursheed Zamal Kidwai and Smt. Jubeda Khatoon a report was submitted by the revenue officer that land no. 2609 measuring 5 bigha 2 biswa and 10 biswansi is recorded as banzar in khata no. 24. In the recovery register, the name of Raja Ali Mohammad is recorded. The term of lease expired in 1930. The name of Smt. Jubeda Khatoon wife of Mustafa Kamil Kidwai was recorded in possession. It was the report that the lease was not renewed. Smt. Jubeda Khatoon handed over the possession of the same very land, therefore, in place of Smt. Jubeda Khatoon the name of Khursheed Jamal Qidwai was ordered to be recorded by the President of Municipal Board, Barabanki on 17.12.1975. The said action was taken on the application submitted by the petitioner stating therein that Smt. Jubeda Khatoon gifted the property in dispute orally to him. The said action was taken on the application submitted by the petitioner stating therein that Smt. Jubeda Khatoon gifted the property in dispute orally to him. Thus he tried to establish that the land belongs to government, Mohammad Amir Ahmad Khan acquired the said land as lease holder which expired in 1930. The report of Revenue Officer speaks that the same was not got renewed, thus Smt. Jubeda Khatoon was only holding possession over the land in dispute, therefore, she had no right to execute the gift deed orally to the petitioner. 10. He submits that in the case of Satya Narain Kapoor Vs. State of U.P. and others (1998 (16) LCD-72) the Division Bench of this Court has well discussed regarding status of lease as to what is Nazul land and what is affect of Nazul land of Government. After well discussion the Division Bench of this Court concluded the matter in the following manner, para 83 of which is reproduced hereinunder: “On what has been held above and the reasons given the Court summarises that:- A. Character of nazul estates cannot be changed. B. Perpetual leases on nazul estates cannot be granted except to educational and charitable institution, recognised by law and in accordance with accepted nazul concepts that if the institutions cease to exist or the lease is misused for a purpose other than the grant, it would be resumed. C. Freehold cannot be created out of nazul estates. It may be created from other government properties which are not nazul, provided the law permits. D. Every transfer, whether under Nazul Shop Rules, or the Nazul Manual, where 'freehold' was granted out of nazul estates will be the subject matter of visitation by the Principal Accountant General, Uttar Pradesh. The Principal Accountant General will be entitled to audit by visitation and the State Government will be obliged to deliver information to the Accountant General on demand. E. The status of all 'freeholds' made out of nazul estates., repeat nazul estates only, shall continue as grants under Government Grants Act, F. Wherever outdated municipal markets exist, the government is obliged to revise the rent every five years at market rates and fresh settlement of shops are to be made by public auction and the matter reported to the Accountant General, Uttar Pradesh. G. Whenever the original allottee or the sitting allottee dies and heirs seek substitution as their entitlement under the Nazul Shop Rules, the applicants must get reception on heir request for substitution, by the administration within one month, as for as possible, provided due proof is submitted to the local administration in-charge of nazul whether by succession certificate or letters of administration or a probate from a court of competent jurisdiction certifying the right to hold the lease, in the present case under the Nazul shop rules or the Nazul Munual, as the case may be. H. Where the local administration does not accept the petitioners as heirs within the meaning of Nazul shop Rules as they are not in the line of succession under the rules nor within the rule of primo geniture (Rule13), their prayer for receiving an allotment under the aforesaid rules does not arise. I. In so far as fresh grants are concerned, within the meaning of the Nazul shop Rules, any eligible person, may apply and the applicant will be considered on the basis of criteria laid down, that is to say, allotment by public auction. The right to participate in a public auction for seeking an allotment remains. J. as land settlements are recorded, Nazul as an estate finds mention in the Settlements (Bandobast) of each district. The government, which includes the local administration, is obliged to keep track and monitor nazul estate sand keep the nazul records upto date. Nazul estates are to be preserved and their conforming uses retained,for example, commercial for commerce, market for bazars and shops, residential for residences, institution usages for schools, colleges, universities, hospitals, administrative blocks, town halls, greens for gardens and parks, etc. as the list is not exhaustive.” 11. Learned Standing Counsel claims the land in dispute, after migration of Raja Saheb Mahmoodabad-Mohammad Amir Ahmad Khan in 1957 became enemy property and now it is an evacuee property. He cited a decision rendered in the case of Purshottam Dass Tandon and others Vs. State of U.P. and Lucknow and others, AIR 1987 Allahabad 56, in which the term of evacuee property has been considered. Relevant para 23 is reproduced hereinunder: para 23..............that the evacuee interest which included lessee's interest vested in the Central Government. Division of property into property of Dominion and State is recognised by Article 294 of the Constitution of India. State of U.P. and Lucknow and others, AIR 1987 Allahabad 56, in which the term of evacuee property has been considered. Relevant para 23 is reproduced hereinunder: para 23..............that the evacuee interest which included lessee's interest vested in the Central Government. Division of property into property of Dominion and State is recognised by Article 294 of the Constitution of India. Under Government of India Act, 1858 the entire property of company vested in Her Majesty under section 39. It continued under section 28 of Government of India Act, 1915 but under section 72 of Government of India Act, 1935 the property vested in Her majesty for Government of India or province. The same scheme continued under the Indian independence (Rights) Property and Liability Order, 1947 except that property vested now in Governor General. Therefore, Central and State Governments were two different persons in whom different interest vested. As regards Central Government what vested in Custodian its representative was 'property' of an evacuee. That is whatever interest the evacuee had and since the evacuee had lessee's interest only this was capable of vesting in Custodian. Further by vesting of property in custodian, who as the word itself indicates had only the custody of property nature of property could not change and it continued to be property of evacuee, therefore, when sale was made it could be of evacuee interest only (see Mohd. Ali V. Bhagirath, 1964 Andh Pra 126, and Mohd, Ebrohim V. Essak Haji Ali Mohammad, AIR 1962 Bom. 169 ). Apart from it, it cannot be disputed that whole property did not become evacuee property as interest of widow of Sri Sulaiman was separated. Therefore, what vested in the custodian was the interest in the house of heirs of late Sri Sulaiman, who had migrated to Pakistan, minus the interest of his widow as is clear from Pirdhandas Parsumal v. Hajrabai Mohd. (1968) 9 Guj LR 24 but what was sold to petitioner was the entire bungalow that is the interest of evacuee and non evacuee. Thus the claim of petitioner that his father became absolute owner stands negatived. But the petitioner had automatic right of renewal of lease for 25 years. Allegation in paragraph 11 of the Writ Petition remains uncontroverted. And that probably was responsible for such a fabulous price for a building the lease of which was going to expire just in seven years. But the petitioner had automatic right of renewal of lease for 25 years. Allegation in paragraph 11 of the Writ Petition remains uncontroverted. And that probably was responsible for such a fabulous price for a building the lease of which was going to expire just in seven years. Since lessee's interest vested in custodian who transferred it to petitioner's father on explicit condition of automatic renewal for 25 years it shall be deemed as one of the conditions stood added to lease. The opposite parties, therefore, were bound to renew lease of petitioner for 25 years a automatically without charging any premium from them. Since in other respects petitioner's case is similar to others fresh lease shall be executed in his favour but no premium shall be charged for first 25 years.” 12. He also cited a decision rendered in the case of Nagar Palika Bulandshahr Versus Hanuman prasad and another RD 1996 (87) 202 (Allahabad High Court), in which this court has held in paragraphs 14 & 15, which are reproduced hereinunder: Para 14- It is settled principle of law that no right can accrue to any individual on Nazul land which is a Government land unless the said right is so conferred by the Government. The plaintiff has completely failed to demonstrate as to how the said right was conferred on the plaintiff. Para 15- In accordance with Nazul Manual only a lease could have been executed in favour of the plaintiff. The lessee can enjoy the lease as per terms of grant, however, the plaintiff has not come forward to plead or prove any such case. Even otherwise no Bhumidhari right can accrue on the basis of any such lease. The entry of bhumidhari right of the plaintiff respondent No. 1 on the said plot was patently illegal and the plaintiff cannot succeed in his suit on the basis of the said entry. 13. Thus, learned standing counsel submits that since property in dispute is evacuee property, no right of ownership could be declared upon this land. However, the petitioner succeeded to get an order of declaration by this Court as well as to the stage of Hon'ble Supreme Court absolutely on concealment of facts. It was pointed out before the Court that the property in dispute is evacuee property, therefore in this manner he cannot seek the execution of order passed by the court below. However, the petitioner succeeded to get an order of declaration by this Court as well as to the stage of Hon'ble Supreme Court absolutely on concealment of facts. It was pointed out before the Court that the property in dispute is evacuee property, therefore in this manner he cannot seek the execution of order passed by the court below. He further submitted that since the petitioner succeeded to get an order to some extent by this Court absolutely on concealment of fact, that can be said fraudulently, therefore, he is not entitled to any relief sought in the writ petition and the writ petition deserves to be dismissed. 14. It is not in dispute that Raja Saheb Mohamoodabad Md. Amir Ahmad Khan was lease holder which expired in 1930 without renewal. Only on the basis of possession the name of Smt. Jubaida Khatoon had been found recorded in the revenue records, who executed oral gift deed to the petitioner, but it is not disputed that nature of the land remained same as after migration of Raja Saheb Mahmoodabad-Mohammad Amir Ahmad Khan to Pakistan the property in dispute became evacuee property as no body was there behind him in his family to inherit it. Therefore, in terms of the decision rendered in the case of Satya Narain Kapoor (Supra), I am of the view that nobody has right to get declare himself as owner of the said property. Under the judgment of the suit also the petitioner has not claimed for possession over the land in dispute, therefore, I am also of the view that only declaration of right is not enough to hand over the possession of the property in dispute to the petitioner unless it is sought for. The compromise which is said to have been collusive also does not create any right in favour of the petitioner as the fraud vitiates the proceeding of compromise. Therefore, I am of the view that the same cannot be given effect to. 15. In the result, the writ petition is dismissed.