JUDGMENT Sudhir Narain, J. 1. The present writ petition is directed against the order dated 12-5-87 passed by the Settlement Officer (C) and the order dated 8-6-1992 passed by the Dy. Director of Consolidation, respondent Nos. 2 and 3 respectively in consolidation proceedings. 2. The dispute between the parties relate to Khata Nos. 120, 71 and 20 situate in village Sitalpur Birecha, Pargana Haveli Tahsil Sadar Maharajganj district Gorakhpur. There is no dispute that the parties are related to each other and the relations as given in the following pedigree is not disputed : Nooran Denga Chotkan Ramzan --|----------| | Fattu Rahman ] Died issueless | Rasul | ---|--------|_ | Chhokat Muslim | P-l P-2 1 -----------|-----|------|--_ Habib Bhola Abbas fth Mukhtar Chirag AH R-4 R-6 R-5 R 7 R-8 Ancestors of the parties had proprietary rights in the village and they had sir and khud-kast. In 1321-Fasli sons of Nooran had 10.77 acres sir, 2.23 khudkast Zimam II 1.31 acres land Zimam II, total 20.31 acres. The three sons of Nooran, namely, Denga, Chhotkan and Ramzan each had equal share and according to the calculation it comes to 6, 76 acres for each of the sons. 3. Denga and his son Rahman and grand-son Rasool executed sale deeds and simultaneously with the sale deeds they also executed surrender deeds surrendering their rights in the sir and khudkast land sold by them. Details of sale deeds are as under. Name of transferor Area transferred Name of vendee Date of sale. DENGA 1 Acre Chotkan 6-6-1919 DENGA 1. 66 Acres Karamat X DENGA 1. 21 Acres Abbas X Rahman 1. 15 Acres Karamat 27-6-1935 Rasool .25 Acre Karamat X 4. Result of the sale deeds is that Denga and his descendants sold 5 63 acres of land out of 6i 76 acres of land which was their share in sir and khudkast land. The sale deeds which were executed in favour of Karamat by three separate sale deeds ; one by Denga, other by Rahman and the 3rd by Rasool, Karamat took possession of the said land got his name mutated and got separated his khata and there is no dispute with regard to the said land. Denga had executed one sale deed in favour of Chotkan, his own brother and Abbas Ali son of Chhotkan. Denga had executed one sale deed in favour of Chotkan, his own brother and Abbas Ali son of Chhotkan. Consolidation proceedings started in the village and in the basic year Khatauni the name of Habib, Abbas Ali and Chirag Ali, sons of Chhotkan alone were recorded in Khata No. 120 in Khata No. 71 names of the petitioners Chokat and Muslim were recorded and Khata No. 20 was jointly recorded in the names of both parties. The contesting respondent and the petitioners both filed objections before the Assistant Consolidation Officer. The petitioners claimed that they have half shares in khata No 120 and their names should be recorded Respondent find objection stating that they were co-bhumidhars in khata No 71 and as regards khata No. 20 the dispute was regarding the shares of the parties. The Consolidation Officer partly allowed the objection of the petitioners by order dated 22 3-1982 The petitioners as well as respondents both filed appeals against the order of the Consolidation Officer before the Settlement Officer (Consolidation) who held that the sale deeds ware executed by Danga and his descendants regarding the sir and kudkast land and to the extent the area covered by the sale deeds their rights in the land extinguished with the result that the petitioner had only (0.8 decimal area in khata Nos. 71 and 20 and had no share in khata No. 1120. The petitioners filed revision before the Dy. Director of Consolidation He affirmed the findings recorded by the Settlement Officer (C) and dismissed the revision by order dated 8-6- 1992 The petitioners have challenged these orders. 5. I have heard Sri G. N. Verma learned counsel for the petitioner' and Sri R N. Singh, learned counsel appearing for the contesting respondents at length 6. There are two main submissions of the learned counsel for the petitioners. He urged that the sale deeds were executed between the period 1916 to 1935 when the provisions of the North Westers Provinces Tenancy Act, 1901 and The Agra Tenancy Act, 1926 were applicable Zamidars had proprietary rights and the land in which Sir or Khudkast rights had accrued to them, they were entitled to continue to cultivate and occupy such land. Section 10 (I) of North Western Provinces Tenancy Act, 1901 reads as under :- 10. Section 10 (I) of North Western Provinces Tenancy Act, 1901 reads as under :- 10. Exproprietary tenants (1) Every proprietor, whose proprietary in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, or after the commencement of this Act either by sale In execution of a decree or order of a Civil Or Revenue Court, or by voluntary alienation, otherwise than by gift or by exchange between co-sharers in the mahal, shall become a tenant with a right of occupancy in his sir land, and in the land which he has cultivated continuously for twelve years at the date of transfer and shall be entitled to hold the same at a rent which shall be four annas in the rupee less than the rate generally payable by non occupancy tenants for land of similar quality and with similar advantages in the neighbourhood." Similar provision was also incorporated in Section 14 (1) of Agra Tenancy Act, 1926 which reads as under: Ex-proprietary tenants- (1) Every landlord whose proprietory rights in a mahal or any portion thereof, whether in any share therein, or in any specific area thereof, are transferred either by foreclosure or sale in execution of a decree or order of civil or revenue court, or by voluntary alienation otherwise than (a) by gift, or (b) by exchange between co-sharers in the mahal, shall become a tenant with a right in occupancy of sir and in the land which he has cultivated continuously for ten years at the date of transfer and shall be entitled to hold the same at a rent which shall, subject to the provisions of Section 49, be two annas in the rupee less than the rate prescribed for occupancy tenants in Section 59 " 7. It was urged that ex-proprie1ary tenancy rights could not be surrendered by the transferors and surrender deeds, executed by Denga, his sons and grand- son along with the execution of sale deeds regarding sir and khudkasht land was void. It was urged that ex-proprie1ary tenancy rights could not be surrendered by the transferors and surrender deeds, executed by Denga, his sons and grand- son along with the execution of sale deeds regarding sir and khudkasht land was void. There was specific bar in Section 20 (2) of the North Western Provinces Tenancy Act, 1901 which reads as under ( (2) The interest of an ex-proprietary tenant, an occupancy tenant, or a non-occupancy tenant other than a thekedar is, subject to the provisions of this Act heritable, but is not transferable, in execution of a decree or a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom as co-sharers in the tenancy such right originally arose or who have become by succession co-sharers therein." 8. The dispute was raised in various cases and finally provision was engrafted under Section 15 of Agra Tenancy Act, 1926. Relevant provision of Section 15 (1) reads as under: 15. Effect of relinquishment of ex-proprietary rights: (1) Except as provided in sub-sections (2), (3) and (4) no sals of sir or agreement, relinquishment or other transaction having the effect of a surrender or relinquishment of exproprietary rights, executed or carried out within six months Immediately proceeding or succeeding a transfer of proprietary right, shall affect or detract from the rights created by Section 14." Learned counsel for the petitioners placed reliance upon Iqram Ullah Khan v. Moti Chandra, 1911 (8) ALJ 826. In this case the Zamindar had executed sale deed In favour of the plaintiff whereby they purported to sell their zamindari property together with sir and khudkast land and further covenanted to execute the deed of relinquishment in respect of their exproprietory rights in the holdings Subsequently, they executed relinquishment deeds in accordance with stipulation in the sale deed but they did not move application before the revenue Court surrendering the holding and possession of the sir and khudkast land nor they delivered possession to the transferees. The sale deed contained stipulations that in the event of delay in delivery of possession or objection to surrender the exproprietary rights the vendee shall pay damages at the rate of Rs. 16/- per Bigha. The vendees on the failure of the Zamindar to deliver possession and surrender may file suit for damages for failure to deliver possession of sir and khudkasht land. 16/- per Bigha. The vendees on the failure of the Zamindar to deliver possession and surrender may file suit for damages for failure to deliver possession of sir and khudkasht land. It was held by this Court that the agreement to relinquish] the ex-proprietary rights in the land was contrary to law and as such unlawful agreement could not be enforced under the law. The suit was dismissed. The said judgement was affirmed by the Privy Council, AIR 1916 P C. 59. The Privy Council held : "All such devices, arrangements and agreements in contravention of the policy are illegal and void and could not be enforced by the vendee in any Civil Court or in any Court of Revenue." 9. The aforesaid case, however, does not deal with the case where either the sir or khudkasht holder has voluntarily delivered possession of the sir and khudkasht land of which he was in possession to the vendee. The agreement that one should surrender or relinquish the exproprietary tenancy rights or deliver possession could not be enforced under law but if sir or khudkasht holder delivers possession and does not claim exproprietary tenancy rights, the effect of such possession of vendee, would be to extinguish the exproprietary tenancy rights Such a case was itself distinguished in Eqram Ullah Khan's case (Supra) while considering the case of Bharath Singh v. Debi Dayal Singh, (1909) 6 ALJ 555. 10. There is another aspect of the matter that sub-section 1 of Section 15 of Agra Tenancy Act, 1926 provided that no sale of sir or agreement relinquishment or other transaction having effect of surrender or relinquishment of exproprietary rights executed or carried out within six months immediately preceding a transfer of proprietary right, shall affect or detract from the rights created by Section 14. This provision contemplates that after the period of six months exproprietary tenancy rights could be surrendered and if any surrender or relinquishment deed is executed within six months it shall take effect after the expiry of six months. Even otherwise, exproprietary tenancy rights extinguish if the vendee continues in possession and the right to recover possession from such person extinguishes by not recovering possession within period of limitation. Even otherwise, exproprietary tenancy rights extinguish if the vendee continues in possession and the right to recover possession from such person extinguishes by not recovering possession within period of limitation. I he vendors had delivered possession to the vendees Section 35 (1) (f) of Agra Tenancy Act, 1926 provided that the interest of a tenant shall be extinguished where tenant has bees, deprived of possession and his right of possession is barred by limitation. The petitioners have never filed suit for ejectment against the vendees and the exproprietary rights of the petitioners extinguished under law The next submission of the learned counsel was that the respondents and the petitioners are co-sharers and in case transfer of sir or khudkasht land is made in favour of the co-sharers, the same will be valid so far proprietary rights in the mohal is concerned but so far sir and khudkasht land is concerned the possession of one of the co shorers will enure for the benefit of other co-sharers This argument pre-supposes the possession of the co-sharers treating the entire transaction of surrender of possession by vendors as void. The status of transferor, however, after sale of sir and khudkasht land is district from another co sharers who has not sold their rights in sir or khudkasht land. This aspect of the matter was considered in detail by Full Bench of this Court in Jokhumal v. Gopimal, 1952 Alld. 251. It was held that when a co-sharer transfers his rights in a sir and khudkasht land, he looses his sir rights, acquires exproprietary rights and retains special rights of cultivatory possession over the plots in his new capacity of exproprietary tenant and when he does not exercise his exproprietary rights before the period of six months had expired, he cannot claim right in sir land as a co-sharer or joint sir. It was observed ; "One essential feature of the right of joint tenancy is that all the joint tenants must hold the joint property in the same capacity and in the same right. Once there is differentiation in their capacities or in the nature of their rights there could be no Joint tenancy and there can be no survivorship." 11. It was observed ; "One essential feature of the right of joint tenancy is that all the joint tenants must hold the joint property in the same capacity and in the same right. Once there is differentiation in their capacities or in the nature of their rights there could be no Joint tenancy and there can be no survivorship." 11. The person who purchases sir and khudkasht land and retains possession of such land and right to recover possession is barred of exproprietary rights otherwise extinguishes, the land is known as 'khalsa land" or in other words as "non-sir land" It becomes Khudkasht land of such person who cultivates the land on purchases of sir and khudkasht land. The vendee admittedly retains the character of proprietor of such land and on cultivation of such khalsa land he himself becomes Khudkasht holder qua the share of transferor. The fact that such vendee is stranger to the family of vendor or he may be a co sharer prior to the transfer is hardly relevant. The character and status of such vendee is entirely different and he cannot be treated as co-sharer of joint sir or khudkasht holder with regard to the said land which he had purchased from the co-sharer. In Smt Lachminia v. Board of Revenue, 1964 RD 47, where the sir land was mortgaged with possession and the mortagor tried to take forcible possession on the ground that they were entitled to exproprietary tenancy rights which automatically accrued to him, the Court held that after possession was delivered and the right to recover possession was delivered and the right to recover possession become barred by limitation, rights of mortgagor extinguished and such land ceases to sir and becomes khalsa land in which all the proprietors have share In a similar situation in Jaganath Tewari v Dy Director of Consolidation, 1971 AWR 5, where one of the cosharers had transferred sir land, it was held that sir of such co-sharers becomes his exproprietary tenancy and if such co-sharer does not claim exproprietary tenancy within time and transferees enter into possession, the land ceases to be the sir qua the share of transferor and becomes khalsa land and the transferee continuing in possession over the share of transferor becomes himself khudkasht holder and the transferor' cannot claim any right over such land. He may himself acquire sir rights independently under section 4 of the Act Such co-sharer cannot claim arty right over the land so transferred by him In Ganpat Singh v Commissioner and Director of Consolidation, 1973 ALI 216, where the contract was entered into by the proprietor regarding sir and khudkasht land and under such, compromise the possession was transferred. It was hell that as the terms of the compromise stipulated that the sir holder will have no right to cultivate the land at all and at any time in future to regain possession of land rights of such sir holder extinguished and it became non-sir or khalsa and the person who cultivated the land it became his khudkasht land. 12. In view of various decisions, it is clear that after execution of the sale deed by Denga his son and his grandson their rights extinguished in the land. They were not in possession and their exproprietary rights extinguished and it became khudkasht and sir land of the vendees The fact that such vendees were brothers or nephews of Denga did not in any way change their status and character. The last submission of the learned counsel for the petitioners was that possession of one co-sharer is possession of other co-sharers. The sale deed was executed by Denga and his sons; and grand-son in favour of his brother or nephews and they were already co sharers. In the first place it may be noticed that some of the sale deeds were executed in favour of one Karamat who is not admittedly member of the family of the parties nor co-sharers at any time. There is no argument advanced regarding rights which accrued to Karamat. The argument is confined only to such sale deeds which had been executed in favour of brothers and nephews who were already co-sharers. 13. As discussed above, the mere fact that the sale deeds were executed in favour of brothers and nephews their independent character was not lost on the strength of sale deeds. The vendors not only executed the sale deeds also executed surrender deeds and the respondent and their purchasers continued in possession not because they were co-sharers of sir and khudkasht land but on the strength of the execution of the sale deeds, surrender deeds and thereafter transfer of possession. The vendors not only executed the sale deeds also executed surrender deeds and the respondent and their purchasers continued in possession not because they were co-sharers of sir and khudkasht land but on the strength of the execution of the sale deeds, surrender deeds and thereafter transfer of possession. The learned counsel for the petitioner relied upon two decisions of the Supreme Court, Kaliash Rai v. Jai Ram, 1973 SC 893, and Kaviraj Basudeva Nand v. Harihargir, 1974 SC 1991. The Supreme Court took the view that even if if a co- sharer is not in actual physical possession he shall be treated as in constructive possession the principles laid down by this Supreme Court is not disputed but on the facts of the present case they are not applicable. Possession of the respondents over the land which they had purchased was not in the capacity of a co-sharer. The case was distinguished in Prabhu Singh v DDC, 1979 RD 158. Similar view was taken in unreported decision in writ petition No. 3863 of 1971, Amar Singh and others v. Naubat Singh and others. In that case where all the joint Khudkasht holders let out the land to other tenants, the rights of such khudkasht holders extinguished. Subsequently one of the original khudkasht holder who was a party to a joint lease acquired rights from such tenants. On his acquiring rights, other original khudkasht holders claimed rights over such land on the ground that they are co-sharers. Their claim was negatived by the High Court, holding she other co sharers having lost right, could not claim rights as against other co-sharers who independently acquired rights 14. In view of the findings that the; respondents and their predecessors in interest were cultivating the land independently in their capacity as a purchaser of land, the petitioners cannot claim any right on the basis that originally their predecessor-in-interest were co-sharers of such land. No other point has been pressed. In the result, the writ petition is dismissed. Parties shall, however bear their own costs. Petition dismissed.