JUDGMENT G.C. Mathur, J. - One Srimati Bindeshwari was the proprietor of sixteen annas share of village Chaubeypur and was the sir-holder of certain plots in that village. On November 7, 1919, she mortgaged with possession her entire interest in the village for Rs. 8,000/- in favour of Ram Autar, Balbhaddar and Munni Singh. The mortgagees were put in possession of the entire property including the sir plots. It was stipulated in the mortgage deed that, after eleven years, the principal amount and interest would be deemed to be paid up out of the usufruct of the property and the mortgagor would become entitled to redeem the mortgage without having to pay anything. On August 22, 1930, Shrimati Bindeshwari filed a suit for redemption of the mortgage. The suit was decreed on January 25, 1932. Thereafter Shrimati Bindeshwari took formal possession over the property. She died on May 3, 1932, and the petitioners are some of her successors-in-interest. Against the decree of the trial court, the mortgagees filed an appeal but the appeal was dismissed by this court on February 14, 1938. The successors of the original mortgagor then applied in execution for actual possession over the plots and, on May 18, 1940, the execution court directed delivery of actual possession. On August 2, 1940, possession was obtained. Immediately thereafter, on August 28, 1940 the successors of Shrimati Bindeshwari executed a thekanama in favour of one Ram Chaiittar Singh in respect of the entire property, but as the thekedar could not get actual possession from the mortgagees, the theka did not continue. On June 6, 1942 they executed four thekas in favour of Vishwanath Prasad in respect of thirteen annas share of the zamindari. The theka was to continue upto June 30, 1951. The thekedar took actual possession of the plots, which were at one time sir, and cultivated them. Subsequently, the thekedar purchased a seven annas share in the khewat from some of the co-sharers. We are, in this case, concerned with those plots which were originally the sir of Srimati Bindeshwari. In the basic year records, these plots were recorded as the bhumidhari and sirdari of Vishwanath Prasad and his brother Sheo Nath. In consolidation proceedings, the petitioners filed objections, claiming that the plots were their sir plots and that they had become bhumidhars thereof on the abolition of zamindari. In the basic year records, these plots were recorded as the bhumidhari and sirdari of Vishwanath Prasad and his brother Sheo Nath. In consolidation proceedings, the petitioners filed objections, claiming that the plots were their sir plots and that they had become bhumidhars thereof on the abolition of zamindari. According to them, the thekedar Vishwanath Prasad was only an asami of the plots. A counter-objection was filed by Vishwanath Prasad, stating that the plots were not the sir or khudkasht of the petitioners on the date of vesting and that he was in possession of the disputed plots as proprietor and not as thekedar on the date immediately preceding the date of vesting. He claimed that he had rightly been recorded as the bhumidhar and sirdar of the plots. The Consolidation Officer, by his order dated January 4, 1964, dismissed both sets of objections and directed the plots to be recorded in the name of Gram Samaj. Against his order, both parties filed appeals before the Settlement Officer (Consolidation) . The Settlement Officer, by his order dated December 15, 1964, allowed the appeal of the petitioners and dismissed the appeal of Vishwanath Prasad. He ordered that the names of the petitioners be recorded as Bhumidhars of the plots and that the name of Vishwanath Prasad be recorded as Asami thereof. Thereupon four revisions were filed by Vishwanath Prasad and his brother and three were filed by the Gaon Sabha. By his order dated November 23, 1965, the Deputy Director of Consolidation dismissed the revisions filed by the Gaon Sabha and allowed the revisions filed by Vishwanath Prasad and Sheo Nath Prasad. He ordered the entries made in the basic year Ithataunis in favour of Vishwanath Prasad and Sheo Nath Prasad to continue. It is against this order of the Deputy Director of Consolidation in the revisions filed by Vishwanath Prasad and Sheo Nath Prasad that this writ petition has been filed. 2. He ordered the entries made in the basic year Ithataunis in favour of Vishwanath Prasad and Sheo Nath Prasad to continue. It is against this order of the Deputy Director of Consolidation in the revisions filed by Vishwanath Prasad and Sheo Nath Prasad that this writ petition has been filed. 2. Though a large number of questions ,were canvassed before the Deputy Director of Consolidation and though he has discussed those questions also, the main find ings, on which his order is based, are :- (i) that the mortgage executed by Shrimati Bindeshwari was a usufructuary mortgage; (ii) that ex-proprietary tenancy rights in the sir plots accrued to Shrimati Bindeshwari on the execution of the usufructuary mortgage; (iii) that as Shrimati Bindeshwari did ''tom not claim possession over the plots, her ex proprietary tenancy rights became extinguished; (iv) that, on the accrual of the ex-proprietary tenancy rights, the sir right were extinguished; and (v) that, since the ex-proprietary tenancy rights were extinguished, the sit rights did not revive upon redemption of the mortgage. 3. The Deputy Director accordingly held that the petitioners, who Are some of the successors of Shrimati Bindeshwari were not sir-holders.on the date immediately preceding the date of vesting and, therefore, did not acquire any rights in the plots on the date of vesting. He further held that Vishwanath Prasad came into possession of the land initially as thekedar and cultivated the same but, on his acquiring proprietary interest in the Khewat, he became Khudkasht holder of the plot3 and, under Section 18 of the U. P. Zamindari Abolition and Land Reforms Act, he acquired bhumidhari and sirdari rights in the plots. If the view of the Deputy Director of Consolidation that the petitioners were not sir-holders on the date immediately preceding the date of vesting is correct, then the petitioners have no interest in the land and their claim has been rightly rejected by the consolidation authorities. We have accordingly heard counsel for the parties on this question and, being satisfied that the view taken by the Deputy Director of Consolidation is correct, we have not heard then on any other question. 4. The mortgage was executed in the year 1919 when the North Western Provinces Tenancy Act, 1901 (Act II of 1901) was in force. This Act did not define `Sir'. 'Sir' was defined in sub-sec. 4. The mortgage was executed in the year 1919 when the North Western Provinces Tenancy Act, 1901 (Act II of 1901) was in force. This Act did not define `Sir'. 'Sir' was defined in sub-sec. (12) of Section 4 of the North-Western Provinces and Oudh Land Revenue Act, 1901 (Act No. III of 1901) as follows :- "'Sir' means in the north-western provinces- (a) land recorded as sir in the last record-of-rights framed before the commencement of this Act and continuously so recorded since, or which but for error or omission would have been so continuously recorded; or (b) land cultivated continuously for twelve years immediately before the corn, mencement of this Act by the proprietor himself with his own stock, or by his servants, or by hired labour; or (c) land recognised by village custom as the special holding of a co-sharer, and treated as such in the distribution of profits or charges among the co-sharers : Provided that land which is sir under sub-clauses (a), (b) or (c) , shall cease to be sir when it becomes the subject of an ex-proprietary tenancy; Provided also that if an ex-proprietary tenant regains his proprietary right in the land held by him as ex-proprietary tenant, the land mentioned in the first proviso shall again become his sir." Ex-proprietary tenants were dealt with in Section 10 of Act 11 of 1901. This section was in these terms:- "I0. Every proprietor, whose proprietary rights in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, on. or after the commencement of this Act, either by sale in execution of a decree or order of a Civil or Revenue Court, or by voluntary alienation, otherwise then by gift or by exchange between co-sharers in the mahal, shall become a tenant with a right of occupancy in his sir land, and in the land which he has cultivated continuously for twelve years at the date of the transfer, and shall be entitled to hold the same at a rent which shall be four arenas in the rupee Iess than the rate generally payable by non-occupancy tenants for land of similar quality and with similar advantages in the neighbourhood. (2) An usufructuary mortgage shall be deemed to be a transfer within the meaning of this section, (3) If a part only of the share of a proprietor in a mahal or in any portion thereof is so transferred, such proprietor shall become a tenant with a right of occupancy in so much of his sir land, and of the land which he has cultivated continuously for twelve years at the date of transfer, as appertains or corresponds to such part of his share. (4) Every such tenant, and every tenant having the same rights under the corresponding provisions of Act XVIII of 1873, Act XII of 1881 or any other enactment for the time being in force, shall be called an ex-proprietary tenant, and save as otherwise expressly provided, shall have all the rights and be subjected to all the liabilities conferred and imposed upon occupancy tenants by this Act. (5) The land in which such occupancy right has been created shall be specified and the rent payable therefor shall be fixed by the collector under Section 36 of the North-western Provinces and Oudh land Revenue Act, 1901. (6) Nothing in this section shall confer a right of occupancy in any land transferred for any public or private purpose inconsistent with the existence of a right of cultivation therein." Sec. 18 of this Act, which provided for extinction of occupancy rights, stood thus:- "18. A right of occupancy shall be extinguished- (a) when the tenant dies leaving no heir entitled under this Act to inherit it; (b) in land from which the tenant has been ejected in execution of a decree or order or a court; (c) in a holding which the tenant has abandoned or surrendered after service upon the landholder of a notice of sur. render; (d) in land which has been acquired for a public purpose, or a work of public utility." Section 79 (1) upon which also some of the argument turns, provided:- "79 (1) A tenant ejected, otherwise then in accordance with the provisions of this Act, may sue his landholder- (a) for recovery of the possession of the holding; (b) for compensation for wrongful dispossession; and (c) for compensation for any improvement he may have made: Provided that, if the tenant would not have been entitled to remain in possession after the expiry of the agricultural year in which the decree is given, the decree of the court, whether of first instance or of appeal, shall not be for recovery of possession, but for costs only, or if compensation has been claimed and found to be due, for compensation and costs only." 5. Shri Shankar Sahai Verma, learned counsel for the petitioners, has challenged the finding of the Deputy Director of Consolidation that the sir rights of Srimati Bindeshwari were exitnguished. The first ground raised by him is that the mortgage of 1919 was not a usufructuary mortgage, as contemplated in sub-Sec. (2) of Section 10 of Act II of 1901, and, therefore, there was no question of ex-proprietary tenancy rights accruing and the sir rights being extinguished. The mortgage deed is not on the record. The Deputy Director of Consolidation has held, upon an examination of the mortgage deed, that it was substantially a usufructuary mortgage. We see no reason to differ from this conclusion. By this mortgage possession was transferred to the mortgagees and the principal amount and interest was to be notified out of the usufruct of the property. These are the essential features of a usufructuary mortgage. Even if there was some term in the mortgage deed, empowering the mortgagees, in case their possession was disturbed, to realise the money through sale of the other property of the mortgagor, the usufructuary character of the mortgage did not change. In fact, that contingency never arose and the mortgage remained purely a usufructuary mortgage did not change. In the judgment of this Court in the appeal preferred by the mortgagees against the decree for redemption, this mortgage was described a, a usufructuary mortgage. We are unable to accept this contention of Sri Verma. 6. In fact, that contingency never arose and the mortgage remained purely a usufructuary mortgage did not change. In the judgment of this Court in the appeal preferred by the mortgagees against the decree for redemption, this mortgage was described a, a usufructuary mortgage. We are unable to accept this contention of Sri Verma. 6. The other ground, on which Sri Verma contends that sir rights of Srimati Bindeshwari were not extinguished, is that ex-proprietary tenancy rights did not actually accrue to Srimati Bindeshwari as, under sub-Sec. (5) of Section 10 of Act II of 1901, the land, in which ex-proprietary tenancy rights were to accrue, was not specified and the rent payable, therefore, was not fixed by the Collector. This contention is also without any force. Under Section 10 ex-proprietary tenancy rights accrues automatically by operation of law immediately on the mortgage deed being executed and possession being transferred to the mortgagee. The accrual of the rights was not dependent upon specification of the land or fixation of rent under sub-Sec. (5) . The specification of the land and fixation of rent follow the accrual of the rights. A similar contention, though arising under the Agra tenancy Act (III of 1926) was rejected by a Full Bench of this Court in Jokhu Mal v. Gopi Mal, A.I.R. 1952 Alld. 251 (FB). The relevant part of Section 14 of Act III of 1926 was in these words:- "Every landlord, whose proprietary rights in a mahal or in any portion there of ........ are transferred either by fore closure or sale in execution of a decree or order of a civil or Revenue Court, or by voluntary alienation otherwise than (a) by gift, or (b) by exchange between co-sharers in the mahal shall become a tenant with a right in occupancy of his sir ............................... " The Full Bench held : "As the mortgage was executed in 1928 when the Agra tenancy Act III (3) of 1926 was in force, the case is governed by the provisions of that Act. Section 14 deals with the accurate of ex-proprietary rights when proprietary rights are transferred. Upon the transfer (including a usufructuary mortgage) of proprietary rights in any mahal or any portion thereof or in any share therein or in any specific area thereof the mortgagor becomes an ex-proprietary tenant in the Sir land appertaining to the share transferred. Sub-sec. Section 14 deals with the accurate of ex-proprietary rights when proprietary rights are transferred. Upon the transfer (including a usufructuary mortgage) of proprietary rights in any mahal or any portion thereof or in any share therein or in any specific area thereof the mortgagor becomes an ex-proprietary tenant in the Sir land appertaining to the share transferred. Sub-sec. (3) of Section 3 provides that : 'Where there are two or more co-sharers in sir and one of them becomes an ex-proprietary tenant in it under this section, his previous share in it shall be divided off by the officer empowered to fix the rent of the holding under Section 36, U. P. Land Revenue Act, 1901 and his interest as ex-proprietary tenant shall be limited to such share.' This sub-section does not have the effect of staying the accrual of ex-proprietary rights till the demarcation of the area of the ex-proprietary tenancy under Section 36, Land Revenue Act. The proceedings under Section 36, Land Revenue Act, are merely for purposes of fixing the rent payable by the ex-proprietary tenant and of marking off the specific area of which he shall be deemed to be an ex-proprietary tenant. But this ex-proprietary tenancy arises as soon as the transfer is made out, in the case of a usufructuary mortgage, when possession is delivered." It thus appears that the Deputy Director of Consolidation was right in holding that the sir rights of Shrimati Bindeshwari were extinguished upon her executing the mortgage deed and handing over possession to the mortgagees. 7. Sri Verma next challenges the finding of the DDC that the ex-proprietary tenancy rights of Shrimati Bindeshwari were extinguished. The DDC has taken the view that, Since Shrimati Bindeshwari did not file any suit under Section 79 of Act II of 1901 within the period of six months prescribed therefor, she lost her ex-proprietary tenancy rights in the plots. It is contended that Section 79, which has already been quoted above, could not apply to the facts of this case as Shrimati Bindeshwari was not a tenant who had been ejected otherwise than in accordance with the provisions of that Act and she could not have sued under Section 79. Under Section 10 of the Act Shrimati Bindeshwari became a tenant with a right of occupancy in her sir land and became entitled to hold the same at a favourable rent. Under Section 10 of the Act Shrimati Bindeshwari became a tenant with a right of occupancy in her sir land and became entitled to hold the same at a favourable rent. If she was deprived of possession over the land, she was entitled to regain possession thereof. A suit to regain possession under Act II of 1901 could only lie under Section 79. It, therefore, appears to us that. if Shrimati Bindeshwari did not file a suit .within time to regain possession, her ex-proprietary tenancy rights were extinguished and, therefore, the view taken by the DDC appears to be correct. Even if Sri Verma's contention be accepted that Section 79 was not applicable and the ex-proprietary tenancy rights of Shrimati Bindeshwari were not extinguished by any provision of Act II of 1901, the rights were clearly extinguished when the Agra Tenancy Act (Act III of 1926) came into force. Section 26 of this Act provided for the extinction of tenancies and clause (1) of sub-Sec. (I) laid down that "the interest of a tenant shall be extinguished where the tenant has been deprived of possession and his right to recover possession is barred by limitation." Possession could be recovered under Section 99, which provided for a suit by a tenant or rent free grantee ejected from or prevented from obtaining possession of his holding or any part thereof otherwise then in accordance with the provisions of the Act. In Jokhu Mal v. Gopi Mal, a similar question arose for consideration. In this case also, the mortgagor had handed over possession of the sir, plots to the mortgagee and had not taken any steps to recover possession. It appears that, subsequently, the mortgagor's equity of redemption was also sold at an auction on 10-2-1937. The Full Bench observed:- "The mortgagor lost his right of redemption, and if he did not attempt to recover possession of the plots as an ex-proprietary tenant within six months. it could not be said that he was not deprived of possession or prevented from obtaining possession within the meaning of Sections 35 and 99, Agra Tenancy Act. It must, therefore, be held that the ex-proprietary rights were lost at least after the expiry of six months from 10-2-1937 and the plaintiffs, who are transferees of the equity of redemption, have no right to recover exclusive possession of the plots in dispute ................... It must, therefore, be held that the ex-proprietary rights were lost at least after the expiry of six months from 10-2-1937 and the plaintiffs, who are transferees of the equity of redemption, have no right to recover exclusive possession of the plots in dispute ................... " Following the Full Bench decision, Manchanda, J. held in Shrimati Lachhmina v. The Board of Revenue, 1964 RD 47 that, when a plot shown to have been in the exclusive possession of a co-sharer since a long time is mortgaged and cultivators possession parted with by the sir-holder and he does not exercise his statutory right by claiming the ex-proprietary tenancy which automatically accrued to him, the ex-proprietary rights stood extinguished and the sir character of the holding was lost. Applying the principle of the Full Bench case to the present case, it cannot be said that Shrimati Bindeshwari was not deprived of possession or prevented from obtaining possession within the meaning of Sections 35 and 99 of the Agra Tenancy Act. Her ex-proprietary tenancy rights were extinguished as she did not file a suit for recovery of possession within the period prescribed. 8. Apart from this, we are also of opinion that, by handing over possession to the mortgagees over the sir plots, Shrimati Bindeshwari waived or relinquished her ex-proprietary tenancy rights and, on that account, her rights were extinguished. A Division Bench of this Court in Tolai Misir v. Muneshar Koeri, 22 ALJ 463 had to consider a similar case. There the defendant executed usufructuary mortgage of sir and khudkasht plots in 1914 in favour of the plaintiff. He allowed the mortgagee to take possession of the plots and did not claim ex-proprietary tenancy rights for six years. It was held : "....... but upon its execution there arose in favour of the defendants, by operation of law, an ex-proprietary tenancy in the sir plots ... but it was open to them to abandon them. Under the circumstances........... they must be considered to have done so." In Rani Raj Singh v. Rajendra Singh, A.I.R. 1943 Alld. It was held : "....... but upon its execution there arose in favour of the defendants, by operation of law, an ex-proprietary tenancy in the sir plots ... but it was open to them to abandon them. Under the circumstances........... they must be considered to have done so." In Rani Raj Singh v. Rajendra Singh, A.I.R. 1943 Alld. 247 (FB), it was observed by lqbal Ahmad, C. J. : "The propositions set out above lead to the irresistible conclusion that in the event of a transfer by one of several joint sir-holders of his interest in a joint sir plot, the transferee acquires the proprietary interest of his transferor in the plot and the transferor, by operation of law, becomes entitled to claim ex-proprietary rights. If he does claim ex-proprietary rights, the law (Sec. 36, Land Revenue Act) provides the method by which the area in which he has acquired such rights are to be demarcated. It is, however, open to a person to forego his rights and, therefore, if the transferor does not claim ex-proprietary rights those rights are extinguished." It thus appears to us that, by handing over possession to the mortgagees and not claiming ex-proprietary tenancy rights, Shrimati Bindeshwari lost the rights which had accrued to her. 9. Even if it could be held by some stretch of imagination that ex-proprietary tenancy rights of Shrimati Bindeshwari were not extinguished, her sir rights, in the circumstances of the present case, did not revive upon redemption of the mortgage. At the time of redemption, the Agra Tenancy Act was in force. The first proviso to Section 7 of the Agra tenancy Act, which provided for extinction of sir rights, was as follows :- "Provided, first, that if an ex-proprietary tenant regains his proprietary right in the land held by him as ex-proprietary tenant, such land shall again become his sir." Under this proviso, sir rights revive only if, at the time the ex-proprietary tenant regains the proprietary right, he still holds the land as an ex-proprietary tenant. It is necessary that the ex-proprietary tenant should be holding the land as ex-proprietary tenant before he can claim the benefit of this proviso. In the present case, Shrimati Bindeshwari, who had given up possession of her sir plots and had made no attempt to regain possession, could not be said to have been holding the plots as an ex-proprietary tenant. In the present case, Shrimati Bindeshwari, who had given up possession of her sir plots and had made no attempt to regain possession, could not be said to have been holding the plots as an ex-proprietary tenant. 'Holding' here means being in actual cultivatory possession of the sir plots as ex-proprietary tenant. A sir-holder possesses two rights, a proprietary right in the land and a special right of cultivators possession over the land. Sir rights are special cultivatory rights of the proprietor of a land; they cannot exist independently of proprietorship. If the proprietary rights are transferred, the law provides for the extinction of sir rights in certain cases. Upon such a transfer, the law permits the transferor to retain special cultivatory rights by becoming an ex-proprietary tenant of the land. Ex-proprietary tenancy rights are special rights of cultivatory possession of the sir-holder minus the proprietary right. If the transferor regains his proprietary right while he is still in the enjoyment of the special cultivatory right, his sir rights will revive as both the proprietary right as well as the special cultivatory right will again come to vest in him; but, if he does not retain the special cultivatory right either because he did not claim any ex-proprietary tenancy rights or because he lost them on account of subsequent events, the sir rights will not revive upon his regaining proprietary right. In the present case, Shrimati Bindeshwari never claimed and never exercised the special cultivatory rights known as ex-proprietary tenancy rights. Therefore at the time when she regained her proprietary right by redemption, she was not enjoying the special cultivatory right and, therefore, her sir rights could not revive. We are accordingly of the view that Shrimati Bindeshwari had lost her sir rights and never regained them. The petitioners, who are her successors-in-interest, were not sirdars on the date immediately preceding the date of vesting and could not acquire any rights in the disputed plots under the Zamindari Abolition and Land Reforms Act. The decision of the Deputy Director of Consolidation rejecting the claim of the petitioners is fully justified. The writ petition is without merit is dismissed with costs.