JUDGMENT H.N. Agarwal, Member - This is a second appeal against the judgement and decree dated September 23, 1976 of the Additional Commissioner, Allahabad Division, allowing appeal No. 14 of 1974-75 and setting aside the order and decree dated January 15, 1975 dismissing the suit No. 155 of 1973-74 of the Assistant Collector 1st Class, Kanpur. 2. I have heard the learned counsel for the parties, and have gone though the record. 3. Respondent No. 1, Durga, had filed a suit, claiming to be a co-sirdar of the land in suit to the extent of share alongwith one Mohan Lal. He alleged that the defendant-appellant, Jagannath got 20 times of land revenue deposited in his (Durga's name) in a fictitious and Farzi manner and thereafter got a fictitious and Farzi sale deed in his favour. He sought the ejectment of Jagannath. Jagannath contested the suit, by claiming that Durga after depositing 20 times land revenue had executed a registered sale deed in his favour and had delivered possession to him. He denied that there was any fraud. The trial court dismissed the suit, but the Additional Commissioner has set aside the judgement of the trial court and decreed the suit. Jagannath has now come up in second appeal. 4. The grounds taken in the second appeal are firstly that the judgement of the lower appellate court is hasty and cursory and it has set aside the judgement of the trial court on invalid ground; secondly that the plaintiff-respondent had admitted the transfer of possession over the land in suit to the appellant and the learned Additional Commissioner has recorded no finding on possession, thirdly, that the order of cancellation of Sanad behind the back of the appellant is not binding upon him and lastly that even if the Sirdari right was sold the plaintiff-respondent is not entitled to a declaration. 5. The record shows that Mohan Lal and Durga was recorded as co-Sirdars of the land in suit. There is on record registered sale deed executed by Durga by which he has transferred the share in the land in suit to Jagannath. The report of the Finger Print Expert, which is on record, shows that the sale deed in genuine and has been executed by Durga himself, though he denied it. There is on record registered sale deed executed by Durga by which he has transferred the share in the land in suit to Jagannath. The report of the Finger Print Expert, which is on record, shows that the sale deed in genuine and has been executed by Durga himself, though he denied it. In the sale deed, it is described that Durga was Bhumidhar of the land in suit to the extent of share. There is, however, also on record the copy of the order of the Tahsildar dated March 23, 1971 which shows that Durga had first moved an application before the Tahsildar for depositing 10 times of land revenue and for being made Bhumidhar, but subsequently he made another application that he had not made any deposit and did not wish to be Bhumidhar. It has been hotly debated whether or not Durga had in fact deposited twenty times of land revenue and had applied for Bhumidhar certificate, but the report of the Finger Print Expert leaves no doubt at all that Durga had executed the sale deed in respect of the land in favour of Jagannath. It is not possible for a person to sell his cakes and to have it too. It is, therefore, also not possible for Durga to execute a sale deed of the land professing to be a Bhumidhar and therefore to seeking a declaration of his right in that very land and also try to eject the vendee. 6. The learned counsel for the appellant in this connection has cited Desh Raj v. Lal Sahai Singh 1974 R.D. 92. in which a learned Bench of the Allahabad High Court consisting of Honourable Satish Chandra and P.N. Bakshi, JJ. has observed as follows:- "In the present appeal it was argued that since Sirdari rights were not transferable and since by Section 166 of the Zamindari Abolition Act such a transfer was declared void no interest whatsoever could accrue to the transferees by the sale deed in question. The submission is based upon a fallacy. It has been found by the learned Additional Commissioner that the transferees described themselves as Bhumidhars. The Additional Commissioner was justified in interfering from assertion that the transferors had been made a presentation that they were Bhumidhars and had as such a transferable interest. This finding shows that the sale deed was not in fact of Sirdari rights. It has been found by the learned Additional Commissioner that the transferees described themselves as Bhumidhars. The Additional Commissioner was justified in interfering from assertion that the transferors had been made a presentation that they were Bhumidhars and had as such a transferable interest. This finding shows that the sale deed was not in fact of Sirdari rights. There is no allegation or proof that the transferees knew as a fact that the transferor were Sirdars only. The Additional Commissioner as well as the learned Single Judge have proceeded on the basis that the transferees were misled by the representation of the transferor that he was a Bhumidhar and on that basis contemplate the transaction of sale. It is further clear that the sale was not in fact of Sirdari rights. Section 166 of the Zamidhari Abolition and Land Reforms Act prohibits the sale of Sirdari rights. Bhumidhari rights are transferable in case where land is sold on the professed representation that the seller has Bhumidhari rights, such a sale cannot be held to be of Sirdari rights." 7. Another decision cited by the learned counsel for the appellant is Bala Prasad v. Thakur Das 1979. R.D. 47. in which the following principle has been laid down:- "In consequence of transfer of the interest of Sirdari made by the plaintiff in contravention of the Act, the transferee became liable to ejectment on the suit of the Gaon Sabha but not on the suit of the suit plaintiff. Thus, as a consequence of a void transfer the interest of the plaintiff as the original. Sirdar is liable to be extinguished under Section 190. A careful reading of Section 167 and Section 190 makes it clear that only the Gaon Sabha and not the original Sirdar who has made the transfer in contravention of the Act, is competent to bring suit for ejectment of the transferee or any person who may have obtained possession of the land." Thus, even if it was held that Durga had not become Bhumidhar of the land, it is not open to him to file the present suit for the ejectment of the vendee as a trespasser. Such a suit can be filed only by the Gaon Sabha. 8. The learned counsel for the respondent Durga has cited two decisions Patram v. Ganga Prasad 1968 R.D. 159. Such a suit can be filed only by the Gaon Sabha. 8. The learned counsel for the respondent Durga has cited two decisions Patram v. Ganga Prasad 1968 R.D. 159. and Mohammad Yusuf Khan v. Abdul Latif 1969 R.D. 110., wherein the Board of Revenue had taken the view that acquisition of Bhumidhari rights is optional and refund of ten times amount deposited by the Sirdar can be done on his request. This view, however, no longer represents the correct law. It has been laid down by the learned Full Bench of Allahabad High Court in Bansidhari v. Smt. Dhiradjhari 1971 R.D. 371., as follows:- "Once as Sirdar qualified to acquire Bhumidhari right under Section 134 voluntarily elects to acquire such rights, makes the necessary application and deposits the requisite sum, it is not open to him to retract. Such right to withdrawn the application and to seek refund of the deposit can be conceded only on the hypothesis that until accepted it remains an offer only. If any such right is conceded, it will be necessarily have to be that the granting of the Bhumidhari rights to a Sirdar is itself a discretionary act on the part of the State Government. To hold so would be to allow infiltration of riders which the legislature has not provided for in the material sections viz Section 124 to 139. Except as provided in Section 137-A for cancellation of certificate and refund of deposit under the circumstances mentioned therein, there, is no provision for refund of deposit, Further, whatever may be legal position otherwise be, it is not possible to hold that an applicant or his heir is still possessed of any right to withdraw the application and to ask for refund of the deposit even after the Assistant Collector acting under Section 137 (1) has granted a certificate that he is satisfied that the applicant is entitled to a declaration that he has acquired Bhumidhari rights." 9. As a result of the above discussion, I hold that the trial court had rightly, dismissed the suit of the plaintiff-respondent and the learned Additional Commissioner has erred in law in setting aside the trial court's order. The correct position of law is that the plaintiff-respondent could not claim any rights in the land in suit unless he goes to the civil court and gets the sale deed executed by him cancelled. The correct position of law is that the plaintiff-respondent could not claim any rights in the land in suit unless he goes to the civil court and gets the sale deed executed by him cancelled. I, therefore, allow the second appeal set aside the order of the lower appellate court and restore the order of the trial court.