JUDGMENT M.M. Gopal, Member- This is a second appeal against the judgment of Additional Commissioner in case u/s 229-B of the U.P.Z.A. & L.R. Act. 2. I have heard the learned counsel and have perused the records. 3. The suit was filed by Dashrath etc. against Sri Niwas and others for a declaration of co-tenancy as the plaintiffs and defendants were of the same family and according to pedigree they were members of joint family. The land in suit was acquired by the ancestores of the parties by the registered sale deed dated 28/6/1912. One set of defendants contested the suit. Defendants set no. 1 Sri Niwas and others denied the allegation of the plaint and alleged that their ancestors were in possession of the land in question and the ancestor was recorded in 1345 fasli, no objection was ever raised by the plaintiffs or defendants set no 2, hence they are the sole tenants and no question of co-tenancy arises. The suit was dismissed by the Assistant Collector 1st Class by his judgment dated 3/4/1969 and appeal was filed and in this appeal learned Additional Commissioner set aside the judgment of the trial court and allowed the appeal by his judgment dated 12/6/1972. In the operative portion of his judgment he has written that as the ancestors of parties had purchased the land on 28/6/1912 through a sale deed and the Zamindari was transferred, hence the land in suit which was the 'Sir' of the transferor Zamindars became the 'sir' of all the transferees and it cannot be said that it was the only 'sir' of Raghubir who was recorded in subsequent years. 4. The learned counsel for the appellant has argued that the inference drawn by the Additional Commissioner was not in accordance with the provisions of law and it should be set aside because the 'sir' could not be transferred by the Zamindars and the moment the 'sir' is transferred it looses its nature as 'sir' and notional ex-proprietary tenancy arises, if ex-proprietary tenancy right is not exercised, in other words if the possession has not been taken by the transferor Zamindars, the land belongs (to "Khud Kast" of) transferee Zamindars in cultivatory possession. The learned counsel for the opposite party has contended that it was within the rights of the Zamindar to transfer their 'sir' rights and if it was transferred along with whole Zamindari, all the transferees will become the 'sir holders' of the land in suit although it was in the name of one of the transferees or was in one of the transferee's possession and he tried to support the judgment of Additional Commissioner. 5. From the above discussion it is clear that the relevant facts are practically admitted by the parties. Originally the land was the 'sir' of the transferor Zamindar, Zamindari was transferred through sale deed in the year 1912, the sale was executed and the names of the parties were recorded over other properties, over the land in suit only the name of Raghubir or the members of his branch were recorded. At first I want to discuss the relevant provisions of law and the facts. In the year 1913 the relevant law was North West Provinces Tenancy Act of 1901. The relevant portion of section 10 is as follows :- "Every proprietor, whose proprietary right are transferred .... by voluntary alienation, otherwise than by gift or by exchange between cosharers in the mahal, shall become a tenant with a right of occupancy in his sir'land shall be called as exproprietary tenant." 6. From this section it is clear that by the transfer of proprietary right in 'mahal' through sale deed the 'sir' land is not transferred. There is an exception of this general rule that 'sir' rights or land can be transferred by way of gift or by exchange but in this case it was a transfer through sale deed. Hence the transferor-zamindars became the ex-proprietary tenants of the 'sir' land and it cannot be said that all the transferes became the owner of the 'sir' land or that the 'sir' land became the 'sir' of transferee zamindars. 7. Admittedly only Raghubir was recorded in 1333 fasli Khasra and 1345 fasli Khatauni. It is also admitted that in 1912 the 'Khewat' was transferred to Ram Lal, Ram Nagina, Deo Raj, Raghubir, Hira and Jawahar and in that 'Khewat' the land in dispute was included. Ram Lal & others in execution of the sale deed gave an application for recording their names in relevant papers by the order dated 30/6/1913 the application was allowed. Ram Lal & others in execution of the sale deed gave an application for recording their names in relevant papers by the order dated 30/6/1913 the application was allowed. Hence in other relevant property the names of all the parties were recorded and there was no dispute between the parties. 8. But so far as the 'sir' land is concerned it was recorded in the name of Raghubir and it continued to be recorded in the name of his branch that means Raghubir was in cultivatory possession of the 'sir' land in which the ex-proprietary tenant was the transferor-Zamindar but he did not take possession of the 'sir' land, hence one of the transferee Zamindars i.e. Raghubir cultivated it and his name was recorded in revenue papers since long. Under the latter provisions of law it became the 'Khudkast' or 'sir' of Raghubir only and not of all the transferees Zamindars who were not in cultivatory possession. It is clear from section 4 of Agra Tenancy Act 1926. The relevant portion of the section is as follows:- "Sir' means.....(d) land which at the commencement of this Act was being cultivated by the landlord or permanent tenure-holder himself and which was recorded as the KHUDKASHT OF THE LAND LORD, permanent tenure-holder ..." That means the landlord who was actually in possession whose name was recorded as 'khudkast' became the 'sir' holder of the land. In other words the Zamindar who is recorded as 'khudkast' holder of the land becomes the 'sir' holder. It is thus the 'sir' of the landlord who is recorded in possession. Hence the contention that all the transferee Zamindars became the owner of the previous 'sir' land is not correct. Only the Zamindar who was in possession and whose 'khudkast' was recorded is only the owner of the land and it is only his 'sir'. Hence the observation or inference drawn by the Additional Commissioner is against the provisions of law. 9 The learned counsel for the opposite party tried to draw my attention towards some pronouncements of the High Court. According to him in Chhatrapal v. Smt. Ram Sakhi & others, 1965 R.D. page 176 it was held that the 'sir' rights also passed along with transfer of proprietary rights. 9 The learned counsel for the opposite party tried to draw my attention towards some pronouncements of the High Court. According to him in Chhatrapal v. Smt. Ram Sakhi & others, 1965 R.D. page 176 it was held that the 'sir' rights also passed along with transfer of proprietary rights. In my opinion there is no doubt about this proposition of law but the learned counsel has forgot to note that it was a transfer by gift and the transfer by gift of 'sir' right is permissible. Under North Western Provinces Tenancy Act, 1901 as mentioned above or Agra Tenancy Act 1926 section 6 is as follows:- "6. Transfer of Sir right.-sir right is not transferable except- (a) by gift of the sir to a person to whom the proprietary interest in the sir is gifted, or (b) by exchange of sir between co-sharers in the mahal." But in the present case it is not transferred by gift but by sale deed, hence the ruling is not applicable. In the same way he tried to draw my attention towards Allahtala v. D.D.C, 1979 A.W.C. page 705 but in this case also it was a case of gift, hence both the rulings are not applicable in this case. 10. I, therefore, hold that by the transfer of the proprietary rights 'sir' cannot be transferred through sale deed. This means that ex-proprietary rights arise automatically by operation of law but if the vendor allows the land to pass into the possession of transferee, the ex-proprietary tenancy extinguished by lapse of time without any assertion of right. In other words the land ceases its nature of 'sir' and it becomes the exproprietary tenancy of the vendor or khudkast of the transferee in possession. It can never be the 'sir' of all the transferees. Hence no question of co-tenancy in the present case arises. Raghubir was in cultivatory possession. He was recorded on the relevant years and it was his khudkast hence it was his 'khudkast' land and he was the land holder. 11. I, therefore, allow the appeal and set aside the judgment of Additional Commissioner dated 12/6/72. The suit is accordingly dismissed with costs.