JUDGMENT Om Prakash, J. - This is a second appeal by the defendant no. 1 against the judgment and decree dated 14-11-1975 of the IV Additional District and Sessions Judge, Varanasi (briefly, the A.D.J) affirming the judgment and decree of the trial court decreeing the suit of the plaintiff. 2. The plaintiff filed a suit for permanent injunction that the defendants be restrained from interfering with his possession over the disputed plots nos. 38/1, 38/3 and 38/4 having a total area of 1.25 acres. The facts can be better appreciated from the following pedigree as set out in the plaint, 3. The plaint case was that the disputed plots were Sirdari land of Katwaru and Chhannu, that after their death, the plaintiff and defendant no. 3 became Sirdars by succession, that both of them obtained Bhumidhari Sanad by having deposited 20-times of land revenue/that they remained in possession of the disputed plots thereafter as Bhumidhars, that the defendant no. 1 has no right, title of interest to the disputed plots and he interfered with the possession of the plaintiff illegally and hence the suit for permanent injunction. 4. The defendant no. 1 contested the suit stating that Katwaru and Channu had become tenants of the suit plots under the Patta Istamrari dated 27-8-1925 (Ext. A1), that under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 (briefly,'the Act') they having possessed a right to transfer the holding by sale, became co-bhumidhars of the suit land, that Chhannu had gifted his half share under the gift-deed dated 21-12-1970 (Ext. A6) to his daughter and daughter's son, that the donees then transferred their share to the defendant no. 1, that after the sale-deed, the defendant no. 1 took possession over the vended property and, therefore, he was entitled to continue in possession as co-bhumidhar. 5. The trial court framed several issues and held that the gift-deed was invalid, because the suit land was Sirdari land in respect of which no gift-deed could have been executed. This was why the trial court took the view that no valid title was passed on the defendant no. 1, It was held that the suit land was Sirdari land and the plaintiff and defendant no. 3 became Bhumidhars thereof by the Sanad dated 19-8-1971, (Ext. A3). The suit of the plaintiff was, therefore, decreed. This was why the trial court took the view that no valid title was passed on the defendant no. 1, It was held that the suit land was Sirdari land and the plaintiff and defendant no. 3 became Bhumidhars thereof by the Sanad dated 19-8-1971, (Ext. A3). The suit of the plaintiff was, therefore, decreed. On appeal, the A.D.J. found that the suit holding could not constitute Bhumidhari of Katwaru and Chhannu, as under the Patta Istamrari Ext. Al, no absolute right of transfer-vested in Katwaru and Chhannu, but that right was conditional, as no sale could have been made without the permission of the Zamindar and in the event the successors of the Zamindar preferred to purchase the suit plots. The learned A.D.J. therefore, negatived the Bhumidhari right of the predecessors of the defendant no. 1 under Section 18 of the Act. He held that the suit plots were Sirdari land of Katwaru and Chhannu and that the plaintiff and defendant no. 3 had become Bhumidhars thereof under the Sanad Ext. A3. 6. The question for consideration is whether Katwaru and Chhannu who were the tenants of the suit plots under the Patta Istamrari (Ext. Al), acquired Bhumidhari rights under Section 18 of the Act ? According to the plaint case itself, Katwaru and Chhannu were Sirdars of the suit plots. The case of the plaintiff is that the branch of Chhannu was not at all entitled to the suit plots and only he and defendant no. 3 i.e. the branch of Katwaru alone acquired Bhumidhari rights under Sanad, Ext. A3. It is nowhere explained as to how the branch of Cahannu was deprived of its right in the suit plots and how the branch of Katwaru alone acquired Bhumidhari rights under the Sanad Ext. A3. The main question is as to how the Patta Istamrari Ext. Al is to be construed. The learned A.D.J. was of the view that no absolute right of transfer vested in Katwaru and Chhannu who were the tenants under the Patta Istamrari and, therefore, the suit holding could not be their Bhumidhari under Section 18 of the Act. A3. The main question is as to how the Patta Istamrari Ext. Al is to be construed. The learned A.D.J. was of the view that no absolute right of transfer vested in Katwaru and Chhannu who were the tenants under the Patta Istamrari and, therefore, the suit holding could not be their Bhumidhari under Section 18 of the Act. This view was taken by him, because the Patta Istamrari stated that the right to transfer was exercisable with the permission of the Zamindar and that in the event the successor of Zamindar preferred to purchase the land then 'the right to transfer would be lost. In my opinion, the right to transfer of the holding vested in the tenants, namely, Katwaru and Chhannu under the Patta Istamrari Ext. Al. The only effect of the recital in the Patta that right to transfer was exercisable with the permission and there will be no right of transfer if the successors of the Zamindar preferred to purchase, will be that if any sale was made by the tenants without the permission of the Zamindar then the sale transaction was voidable at the option of the Zamindar, otherwise the sale transaction would continue to remain valid. Simply because the Patta Istamrari stated that the right of sale was subject to permission of the Zamindar, it could not be said that there was no right to transfer. Section 18 of the Act cannot be construed so that it refers to an absolute right of transfer. Clearly, the tenants under the Patta had a right of transfer. The right to transfer even if it is exercisable with permission of the Zamindari, will remain as a right of transfer. It is here, the learned A.D.J. committed an error of law. For the reasons, I hold that the tenants having possessed right to transfer under the Patta, the suit holding had become their Bhumidhari under Section 18 of the Act, and, therefore, Chhannu was entitled to execute a gift-deed in favour of his daughter and daughter's son, who in turn, validly transferred them share to the defendant no. 1. So the position of the defendant no. 1 is of a co-bhumidhar and not of a trespasser. No suit for injunction could be brought against defendant no. 1. The learned A.D.J. ought to have considered the circumstances in entirety. 1. So the position of the defendant no. 1 is of a co-bhumidhar and not of a trespasser. No suit for injunction could be brought against defendant no. 1. The learned A.D.J. ought to have considered the circumstances in entirety. He himself held that Katwaru and Chhannu both were Sirdars of the suit plots. That being so the question was as to how the branch of Katwaru alone acquired Bhmidhari rights under the Sanad and how Chhannu or his branch was deprived of its right. It not having been explained by the plaintiff, the preponderance of probabilities was more in favour of the appellant. 7. In the result, the appeal is allowed, the judgment and decree of the courts below are set aside and the suit of the plaintiff is dismissed. However, the parties will bear their own costs at this appeal.