JUDGMENT : SATISH CHANDRA, CJ. 1. A learned single Judge felt that the decision of this Court in Chhattrapat vs. Ram Sukhi, 1965 AWR 389, requires reconsideration. He accordingly referred the writ petition to a Division Bench. That is how the case has been heard by this Bench. 2. Nizam Uddin was co-sharer to the extent of 5 Gandas and 4 Dant in the proprietary Khata Khewat No. 5 in village Dariapur district Azamgarh. His wife Smt. Aisha Bibi also owned 1 Ganda and 1 kauri share in the said khata khewat. Smt. Aisha Bibi died on March 20, 1948. Nizam Uddin inherited her share. 3. On May 8, 1948, Nizamuddin executed a waqf Alal-Aulad of his 5 Gandas and 4 Dant share in Khata Khewat No. 5, by a registered deed. Nizamuddin had sir appurtenant to his aforesaid share in khata khewat No. 5. He continued to be recorded as sir-holder and after abolition of zamindari, as a Bhumidhar of the Sir and khudkasht plots. On March 11, 1963, Nizamuddin executed a deed of sale of his bhumidhari holding in favour of Nizam Uddin, Respondent No. 4, in this petition. Nizamuddin died in 1964. Badruddin, the present Petitioner No. 2, claiming as an heir successor of Nizamuddin, applied for mutation of his name over the bhumidhari khata. But his application was dismissed. He then filed a regular suit for declaration against Nazar Uddin which was also dismissed in default. He applied for restoration but then on May 10, 1969 a notification u/s 4(2) of the U.P. Consolidation of Holdings Act was published bringing the land in dispute under consolidation operations. 4. The Petitioners filed an objection. They claimed that the Bhumidhari khata Nos. 45 and 46 were waqf property. After the death of Nizamuddin, Badruddin was entitled to be recorded as Mutwalli of the waqf. Since sir and khudkasht were the subject matter of waqf, Nizamuddin had no title left in them. He could not transfer and the sale in favour of Nazar Uddin was void. The Consolidation Officer upheld this objection. He directed that the name of waqf Alal-Aulad under the Mutwalliship of Badruddin be recorded over khata Nos. 45 and 46. Nazar Uddin went up in appeal and succeeded. The Settlement Officer held that the waqf deed did not affect the sir and khudkasht land. The Consolidation Officer upheld this objection. He directed that the name of waqf Alal-Aulad under the Mutwalliship of Badruddin be recorded over khata Nos. 45 and 46. Nazar Uddin went up in appeal and succeeded. The Settlement Officer held that the waqf deed did not affect the sir and khudkasht land. It was confined to the proprietary interest of Nizam Uddin in the khewat. Nizam Uddin continued to be the sir and khudkasht holder and, on abolition of the zamindari, be became the Bhumidhar and, as such, he could validly transfer the land to Nazar Uddin. On these findings, the appeal was allowed and the name of Nazar Uddin was directed to be recorded over the Khata Nos. 45 and 46. The present Petitioners went up in revision, but the same was dismissed. They hence have filed the present writ petition. 5. The principal questions which require consideration in this case are: (1) Whether creation of a waqf Alal-Aulad is, in law, a gift? (2) Did the waqf deed dated May 8, 1948 affect the sir and khudkasht holding of Nizam Uddin? 6. On the first point, this Court in Allah Rabhul Alamin vs. Deputy Director of Consolidation, 1974 URC 360, had held that the creation of a waqf Alal-Aulad is a gift. If it includes sir and khudkasht rights then the executant does not become its ex-proprietary tenant. For the view that the waqf is a gift, reliance was placed on the decision of the Supreme Court in Thakur Mohd. Ismail vs. Thakur Sabir Ali, AIR 1962 SC 1922 and Mohd. Abu Zafar Mohd. Ibrahim vs. Israr Ahmad, 1971 AWR 239. It was held that the principle of those decisions was applicable to a waqf Alal-Aulad. 7. Learned Counsel for the Respondents invited our attention to a decision of the Patna High Court in Nabi Hassan and Others vs. Gajadhar Singh and Another, AIR 1974 Patna 141. In that case, it was held that a waqf, in its true nature and character, is not a Hiba or Sadaqah known in Mohammedan Law. In a gift the corpus of the property itself can be consumed whereas in a waqf only the usufruct of it can be spent. That case does not hold that a waqf is not a gift as known in general law. In a gift the corpus of the property itself can be consumed whereas in a waqf only the usufruct of it can be spent. That case does not hold that a waqf is not a gift as known in general law. It emphasizes that it was somewhat different than the concept of Hiba or Sadaqah in Mohammedan Law. This decision is not an authority that the waqf is not a gift. 8. Section 9(2) of the U.P. Tenancy Act, 1939 provides: 9(2). Sir right is not transferable except: (a) by gift to a person to whom the proprietary right in the sir is gifted. (b) by exchange; Provided that no sir holder shall exchange sir for sir in a mahal in which he is not a co-sharer unless the proprietary rights in the sir are exchanged. According to this provision, sir right is transferable by a gift to a person to whom the proprietary right in the sir is gifted. Gift as mentioned in Section 9 means transfer of rights from one person to another without monetary consideration. Waqf, according to the aforesaid decision, affects transfer of rights from the executant in favour of God. It is hence a gift within the meaning of Section 9(2) of the U.P. Tenancy Act. Sir rights can hence validly be transferred by such a gift. As held in Allah Rabhul's case, on execution of a gift covered by Section 9(2) of the U.P. Tenancy Act, no ex-proprietary rights accrue in favour of the executant. 10. That leads us to the second point whether the waqf deed in question covered the sir rights of Nizam Uddin. The waqf deed related to the 5 Gandas and 4 Dant share owned by Nizam Uddin in the khewat. It is not disputed that it did not cover the 1 Ganda 1 Kauri share inherited by Nizam Uddin from his wife. 11. The relevant portion of the waqf deed runs as follows: In order to attain merit in the eyes of God. I have created a waqf Alal-Aulad in respect of the aforesaid property together with all the zamindari rights. Having withdrawn my possession and title, I, having endowed the property in favour of God Almighty, have put the same in His possession and ownership through the Mutwallis as per the conditions laid down below. 12. I have created a waqf Alal-Aulad in respect of the aforesaid property together with all the zamindari rights. Having withdrawn my possession and title, I, having endowed the property in favour of God Almighty, have put the same in His possession and ownership through the Mutwallis as per the conditions laid down below. 12. The subject-matter of the transaction was the land mentioned along with the entire zamindari rights. The land mentioned was 5 Ganda 4 Dant of Khata Khewat No. 5. Admittedly Nizam Uddin was sir-holder of a holding appurtenant to his aforesaid proprietary share in the Khewat. The question is whether sir rights are part of the entire zamindari rights of a proprietor. The decision of this Court in Chhattrapat vs. Ram Sukhi (supra) is in point. It was held that Sir rights were a legal incident of the proprietary rights of a sir-holder. Sir plots appertained to and formed an integral part of proprietary rights in a village. In that case the gift deed related to half of the proprietary interest of the executant in the village and it was stated in the deed that all rights appertaining to zamindari were being transferred to the donee. Sir rights were appurtenant to the proprietary interest and so they passed to the donee along with the proprietary rights. Gangeshwar Prasad, J. discussed in detail the status of sir rights qua proprietary interest and held that sir rights formed an integral part of proprietary rights. Since sir rights could be transferred by way of gift provided proprietary rights in the sir are also gifted to the same person, vide Section 9(2) of the U.P. Tenancy Act, the gift of proprietary rights along-with all rights appurtenant to the zamindari meant gift of sir rights as well. The learned Judge held that Section 8 of the Transfer of Property Act was also applicable and, under it also, sir rights which were a legal incident of the proprietary rights, would pass. In our opinion, this decision lays down correct law and we respectfully agree with it. In the present case, the proprietary interest was transferred with all zamindari rights. In the eye of law, the sir rights of Nizam Uddin were also the subject matter of the waqf Alal-Aulad created by him in 1948. In law, he remained in possession of the sir holding as a Mutwalli of the waqf. In the present case, the proprietary interest was transferred with all zamindari rights. In the eye of law, the sir rights of Nizam Uddin were also the subject matter of the waqf Alal-Aulad created by him in 1948. In law, he remained in possession of the sir holding as a Mutwalli of the waqf. In the waqf deed Nizam Uddin had indicated that after his death Badruddin shall be Mutwalli of the waqf. After the death of Nizam Uddin, Badruddin was entitled to be recorded over the sir holding, which had, by then, become Bhumidhari. 13. Nizam Uddin executed a deed of sale of the Bhumidhari holding on March 11, 1963. He, in his personal capacity, was not the Bhumidhar. He, as such, could not pass any interest in Bhumidhari holding to the vendee. There is nothing to indicate that he executed the deed of sale as Mutwalli of the waqf. As observed in Allah Rabhul's case the fact that the executant was recorded in the revenue papers as an ex-proprietary tenant would not destroy the title of the waqf. There was no period of limitation for recovering the waqf property. In the present case, Nizam Uddin was recorded as sir holder and then as Bhumidhar of the sir holding. The record would be deemed to be in the capacity as Mutwalli, and after his death, the successor Mutwalli, namely, Badruddin was entitled to be recorded. 14. For the Respondents, it was urged that Badruddin had filed a declaratory suit in the revenue court. The same had been dismissed for default of prosecution. But an application for restoration had been filed and the same was pending on May 10, 1969 when the notification u/s 4(2) was issued. Thereafter the dispute was taken up in the consolidation proceedings. None of the consolidation authorities have decided the rights of the parties on the basis of the declaratory suit in the revenue court. That suit was dismissed for default. Apparently no findings were recorded on the merits. An ex-parte decree prevents institution of a fresh suit, on the same cause of action. Proceedings under the Consolidation of Holdings Act are not suits. They are hence not barred. The consolidation courts rightly disposed off the objection on the merits. 15. In the result, the position is that the Petitioners were entitled to be recorded over the Bhumidhari holding of 5 Gandas and 4 Dant. Proceedings under the Consolidation of Holdings Act are not suits. They are hence not barred. The consolidation courts rightly disposed off the objection on the merits. 15. In the result, the position is that the Petitioners were entitled to be recorded over the Bhumidhari holding of 5 Gandas and 4 Dant. Consequently, the writ petition succeeds and is allowed. The orders of the Deputy Director as well as of the Settlement Officer are set aside and that of the Consolidation Officer restored in so far as they relate to Khata Nos. 45 and 46 to the extent of 5 Gandas and 4 Dant. The Petitioners will be entitled to costs.