JUDGMENT M.M. Gopal, Member. - This is a second appeal against the judgment of learned Additional Commissioner dated April 8, 1984 by which he allowed the appeal and set aside the judgment of the trial court dated September 11, 1973 by which it decreed the suit and held the plaintiff to be the co-tenant of the land in suit. 2. Heard the learned counsels and have perused the records. 3. The facts of the case are that on February 13, 1972 Chhabi Nath filed the suit against Hari Nath, Ram Dhani and others under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as Act I of 1951). It is alleged by the plaintiff that the land was ancestral property and he being a member of that family acquired right. He has also, in the alternative, pleaded that he became co-owner of the 'Sir' alongwith Ram Dhani and Hari Nath. On June 6, 1972 and on July 9, 1973 (after the amendment of the plaint) by the defendants Ram Dhani and Hari Ram written statement was filed. It is alleged that the plaintiff had no right over the land in suit. The same was acquired by them and they (Ram Dhani and Hari Nath) are the sole tenants of the land in suit. 4. At the time of the argument the following pedigree is admitted by the parties:- 5. The evidence produced by the parties has been looked into by the courts below. In Khatauni 1307 and 1309 fasli Mangru and Mangal were recorded as owners of Sir. They both belong to the branch of Dhaneshwar one of the three sons of Anant Prasad. This branch of Dhaneshwar is extinct. It has not been pleaded by the parties either in the plaint or in the written statement that any member or this branch is still alive. Ram Dhani belongs to the branch of Basant and defendant Hari Nath and plaintiff Chhabinath belong to the branch of Nageshwar. Basant and Nageshwar are the other two sons of Anant Prasad. Now since 1334 Fasli the names of Nankoo (father of Hari Nath) and Ram Dhani are recorded as owners of the 'Sir' land. Arjun father of Chhabi Nath was not recorded although he was alive at that time. 6. Basant and Nageshwar are the other two sons of Anant Prasad. Now since 1334 Fasli the names of Nankoo (father of Hari Nath) and Ram Dhani are recorded as owners of the 'Sir' land. Arjun father of Chhabi Nath was not recorded although he was alive at that time. 6. The main contention of the learned counsel for the appellant is that either the land was ancestral property or after the death of Mangru, succession opened and Ram Dhani, Nanku and Arjun father of Chhabinath were the nearest heirs and they became the owners of the 'Sir' land in dispute. Hence the question of surrender of 'Sir' right or denial of right in the proprietary right by Arjun is immaterial. The names of other co-tenants are recorded in the revenue papers since 1334 fasli. They acquired right as heirs of the extinct branch of Dhaneshwar and in the same way the plaintiff also acquired right along with them. The learned counsel for respondent has argued that the learned Additional Commissioner has mentioned in the judgment that the plaintiff has changed his plea from stage to stage and there was no consistent plea of the plaintiff. He has put up the case that it was ancestral property then again he wanted to have the same on the basis of succession and so on and so forth. As there was no evidence that it was ancestral property it has not been accepted by the lower appellate court. So far as the case of succession is concerned the lower appellate court has specifically mentioned in the last of its judgment that one of the witnesses of plaintiff named Faujdar Singh has accepted in his statement that nephews of Mangru are alive and are living in Ballia; hence the plaintiff has no case of succession also and his suit fails on this ground. Although the question of surrender or the point of admission by plaintiff Chhabi Nath in respect of the right of succession have not been raised at the time of the argument but these points have been mentioned in the judgment of the learned Additional Commissioner. 7. Although the question of surrender or the point of admission by plaintiff Chhabi Nath in respect of the right of succession have not been raised at the time of the argument but these points have been mentioned in the judgment of the learned Additional Commissioner. 7. Thus the main points to be decided in this second appeal are whether the plaintiff can acquire right on the basis of the fact that the land is ancestral 'Sir' or on the basis that on the death of last owner of the 'Sir' he alongwith defendants 1 and 2 acquired right as co-tenant; whether Arjun Singh surrendered his rights or has admitted that he has no right over the land and lastly whether the statement of a witness of the plaintiff is binding on the partly and on that ground the plaintiff not being the nearest heir loses his rights. 8. Before coming to the case of the plaintiff here I mention the plea taken by the defendants Ram Dhani and Hari Nath. They claimed to be the sole Sir-holders but this fact has not been accepted either by the trial court or by the lower appellate court. In other words their case of self acquired tenancy or in any other way acquiring the right over the land belonging to Mangal and Mangru has not been accepted by the courts below. No doubt the case of the plaintiff succeeds on its own strength and the defendants pleadings or evidence do not prove the case of the plaintiff if they denied the right of the plaintiffs. But here when there is in evidence that the land was 'Sir', the members of one branch of the family of the plaintiff and defendants, were recorded over the same since 1334 fasli, the relevancy of the entry of revenue papers becomes material and if nothing else has been shown or if there is nothing else on the basis of which it can be said that entry has been made, or there will be presumption that the same land belonging to the other branch of the family was acquired by the existing nearest heirs of last owner of the land. The defendants have not filed any appeal or cross-objection in respect of their case which has not been accepted by the lower appellate court. 9. The defendants have not filed any appeal or cross-objection in respect of their case which has not been accepted by the lower appellate court. 9. It is an accepted principle of law that in the case of 'Sir' land the succession is on the basis of the personal Hindu Law before the enforcement of U.P. Act I of 1951. It is also an accepted principle that the proprietary right of 'Sir' cannot be transferred in any way except by way of registered gift or exchange. Hence if there is any point of surrender or denial of the right by one of the owners of the 'Sir', it cannot have any effect; hence the observations made by the learned Additional Commissioner in his judgment in this respect are against the provisions of law. So far as the case under Section 175 of the U.P. Tenancy Act (suit for ejectment) is concerned it is against a so-called tenant, in such cases the rights of owners of the 'Sir' land are not to be decided, hence it cannot be said that the title of the owners of the 'Sir' has been decided in such suit, if any. This aspect of the reasoning is also baseless. Lastly the learned Additional Commissioner has relied on the statement of P.W. 2 Faujdar Singh just to oust the succession of the plaintiff. Here it will not be out of place to mention that it is neither the case of the plaintiff nor of the defendants that there was any nephew or any other heir of Mangru who is still alive. Hence this question is out of pleadings and there is no relevancy of considering this aspect which has been asserted by a witness in his cross-examination. Moreover, a fact alleged by a witness is not binding on a party. It has got its independent effect. In my opinion under such circumstances such a strange position cannot be inferred or cannot be given any effect to in the present case. 10. On the basis of the reasons given above I, therefore, hold that so far as the question of the land being the ancestral land is concerned it has not been proved by the plaintiff and at the time of argument also the learned counsel has not shown any evidence on the basis of which it can be said that it belonged to the ancestor of the parties. On the other hand admittedly the land belonged to Mangal and Mangru members of one of the three branches of the ancestor of plaintiff and defendant i.e. Anant Prasad; Mangru, admittedly died in the year 1914. After that his nearest heirs as shown in the pedigree Ram Dhani and Nanku were recorded as the owners of the 'Sir'. Non-assertion of the right by Arjun or not taking any step for recording his name over the land in suit, will not take away his right. If Ram Dhani and Nanku acquired the right being nearest heirs of Mangru (as no other plea or evidence has been relied by the courts below), Arjun had also right over the land of Mangru in the same way because he stood in the same position. As discussed above the surrender or admission in respect of proprietary right in 'Sir' land is immaterial and on any unwarranted statement of a witness the case of the plaintiff cannot be disbelieved. It appears that the learned Additional Commissioner has given his judgment not only against the provisions of law but has based his judgment on the basis of irrelevant considerations. 11. I, therefore, allow the appeal, set aside the judgment of the learned Additional Commissioner dated April 8, 1984 and decree the suit of the plaintiff holding him co-tenant alongwith Ram Dhani and Hari Nath. Under the circumstances of the case the parties shall bear their own costs.