1. Though the value of this appeal is only Rs. 3, it involves a question of principle of some importance. The suit was one for ejectment in the Revenue Court under Section 58 read with Section 34 of the Agra Tenancy Act. Section 34 was not specifically pleaded, but the suit was clearly brought in reliance on that section as no specific contract of tenancy between the parties was either alleged in the plaint or proved.
2. The real question in dispute is whether She land is or is not the plaintiff's sir. If it is his sir, he is entitled to treat the defendant as his tenant and to eject him under Section 34, the defendant having occupied the land without the plaintiff's consent. The plaintiff's father Lohari Singh was one of four brothers who were proprietors and joint sir holders of a sir khata. The three brothers other than Lohari Singh sold their rights to the defendant. The three brothers thereby obtained ox-proprietary rights in a proportionate portion of the holding under Section 10 of the Tenancy Act, and proceedings were duly taken under Section 36 of the Land Revenue Act to demarcate the area in which these rights arose. The remaining portion of the holding continued to be sir under the definition contained in Section 4(12) of the U.P. Land Revenue Act. Under the first proviso to the section so much of the holding as became the subject of ex-proprietary tenancy ceased to be sir, but the portion of the holding in which no such rights arose clearly continued to be sir under the definition. The plot in dispute, No. 876, was a portion of the area which continued to be sir.
3. The question is whether it became a joint sir of the purchaser and of the plaintiff's father, or whether the sir rights vested exclusively in the plaintiff's father, whose share was not sold. So far as the proprietary right is concerned, the purchaser became jointly entitled to it, as the holding was undivided. This is not disputed. But sir rights, though they can only be held by a proprietor, are something beyond and apart from the mere proprietary right. The right of a sir-holder is a right to exclusive possession coupled with the fact that no parson cultivating under him can acquire occupancy rights. In a joint undivided village each proprietor may have his own separate sir although the proprietary rights in the whole village are joint.
4. The plot in suit has been recorded from the time of sale as the sir of the plaintiff's father and after him of the plaintiff. On this ground the Assistant Collector who tried the case held that the land continued to be the plaintiff's sir and that the defendant, who obtained possession of it without the plaintiff's consent was liable to ejectment.
5. The Officiating District Judge, on the other hand, held that as the defendant is a co-sharer in a proprietary right, the land must be treated as his khudkasht, and the suit for ejectment must fail. It appears to me that the learned District Judge has not sufficiently considered the question whether the land retained the character of sir. It has generally been held (there are numerous decisions of the Board of Revenue to this effect) that sir rights cannot be transferred by purchase. Where the entire sir has been sold and the purchaser obtained actual cultivatory possession, the land is treated as his khudkasht and not as his sir. In the present case the defendant in his written statement does not claim to be a Sir-holder. His claim in para. 4 of the statement is that the land is his khudkasht.
6. It appears to me, therefore, that the decree of the Assistant Collector was correct and should be restored. LohariSingh's brothers lost their sir rights by the sale to the defendant and obtained instead an ex-proprietary right in a proportionate share of the holding. Lohari Singh never sold his interest and, therefore, never lost his sir rights in that portion of the holding which was not separated off by proceedings under Section 36 of the Land Revenue Act. He is, therefore, entitled to treat the defendant as his tenant under Section 34 and to get a decree for his ejectment.
7. I, accordingly, set aside the decree of the Court below and restore that of the Assistant Collector with costs in this Court and in the Court below.