Satish Chandra, C. J.

1. BEING unable to agree with the views expressed by a learned Single Judge in Smt. Jagrani v. Deputy Director of Consolidation, U. P., 1972 RD 96= 1972 AWR (J) 3 the learned Judge who heard this writ petition has referred the following question of law for decision by a larger Bench :- "Whether a Sirdar could co-opt a third person as Sirdar with her and, if so, what rights the co-opted person will have during the life time of the Sirdar and thereafter ?"

2. THE co-option is alleged to have been effected in 1953 or 1954, that is to say, after the coming into force of the U. P. Zamindari Abolition and Land Reforms Act, 1951. THE law in this respect stood settled by Kalawati v. Consolidation Officer, 1968 AWR 139. In that case one of us (Satish Chandra, J.) held :-

"THE position under the Tenancy Act was well settled. A person could become a co-tenant by estoppel or acquiescence. THE reason was that transfer of a tenancy holding was prohibited. Letting was permitted with the consent of the landlord under Sec. 33 of the U. P. Tenancy Act, 1939. Interpreting those provisions, decided cases held that it was not exhaustive and a person could become a co-tenant by acquiescence or estoppel Under the Zamindari Abolition and Land Reforms Act, transfer of a Sirdari holding was prohibited, vide Sec. 153. THE interest of a Sirdar on his executing a transfer becomes extinguished under Sec. 190 (cc). Thus there was an absolute prohibition against transfers. THEre was no exception like Sec. 33 of the Tenancy Act. Hence a Sirdar could not transfer or permit another to be a co-sharer in the sirdari holding directly. He could not do it indirectly by acquiescence or estoppel."

Co-option is agreeing to have another person as a co-sharer in the tenancy or sirdari rights. In the present case the petitioners claimed a share in the holding on the ground of express co-option in 1953 or 1954 aswell as by continued co-sharing in cultivation since then. They also claimed to have acquired co-tenancy rights by estoppel and acquiescence.

3. IN view of the above decision, both kinds of claims were invalid and could not be upheld or enforced by any court of law.

4. SMT. Jagrani v. Deputy Director of Consolidation, because of which the learned Single Judge felt obliged to refer the case to larger Bench is clearly distinguishable. In that case in proceedings under Sec. 145, CrPC the parties entered into a compromise and agreed to remain in possession over half of the holding each. The learned Single Judge in that case held that the compromise was binding between the parties and both parties became co-tenure holders to the extent of half share. In that case the compromise in proceedings under Sec. 145 CrPC appears to have taken place prior to the abolition of zamindari, i.e., when the U. P. Tenancy Act was in force. This is clear from the observation of the Judge in that case that "the landholder, i. e., the then zamindar, has never challenged the co-option of the respondent no. 4 as a co-tenant by the petitioner".

As observed in Kalawati's case, the position under the Tenancy Act was that a person could become a co-tenant by estoppel or acquiescence. There is, however, no way in which a person could become a co-tenant by Co-option or acquiescence or estoppel under the Zamindari Abolition Act in so far as the sirdari holdings are concerned. Smt. Jagrani's case is clearly distinguishable.

5. LEARNED counsel for the petitioners, however, argued several other points which are not strictly within the purview of the question of law referred by the learned Single Judge. Since we have had to hear counsel, we propose to give our opinion on these points. This necessitates a short statement of facts of the case.

6. ONE Brij Lal was the original tenant of the holdings in dispute. He died in 1947. He was succeeded by his only son Jugal Kishore. Subsequently his brother Baura died in 1951 issueless. His holding was also inherited by Jugal Kishore. Ju