JUDGMENT

Mukerji, J. - The facts of the case are given in the judgment of the learned single Judge of this Court against whose judgment this appeal is.

2. It appears that there was once a single proprietor Mohammad Husain of khewat No. 29 which consisted of an area of 14 bighas and 10 biswas. Mohammad Husain held 12 bighas and 1 biswa, as his sir land. In course of time Mohammad Husain's property devolved on his heirs and some of the heirs transferred their shares. The appellant before us, Syed Abu Jafar, is one of the heirs of Mohammad Husain while the respondent Syed Mohammad Kazim is the purchaser of the shares of the remaining co-sharers. Some time ago there were three co-owners in khewat No. 29, viz. Abu Jafar, owning 2/16th, Mt. Muti Fatma owning 1/16th and Mohammad Kazim owning 13/16th share of the khewat.

3. When Mohammad Kazim purchased the shares of the co-sharers owning 13/16th share, the vendors relinquished their right as exproprietary tenants in favour of Mohammad Kazim. Mohammad Kazim went before the revenue Court and asked that his name should be recorded in respect of 13/l6th share of the sir lands. As already stated the major portion of the area of the khewat consisted of sir lands. To the misfortune of Mohammad Kazim, the highest revenue Court took the view that as the vendors of Mohammad Kazim had relinquished their exproprietary rights in the sir lands, Abu Jafar became the sir-holder of the entire area. This view was undoubtedly wrong and is wrong for the following reasons.

4. To start with, according to the definition of sir lands as given in Section 4 of the N.W.P. and Oudh Land Revenue Act, 1901, sir land as described in Clauses (a), (b) and (c), Sub-clause (12) ceases to be sir land when it becomes the subject of an exproprietary tenancy. When the vendors of Mohammad Kazim relinquished their exproprietary tenancy, the portion of the area which they held as sir land ceased to be sir land and Abu Jafar could not be the sir-holder of the entire area, for the simple reason that the 13/16 of the area ceased to be sir land. The second reason against this view would be that the sir-holders were not tenants, so that it might be said that when some of the tenants died, the surviving tenants became the tenants of the entire holding. Sir lands are held by proprietors and not by tenants. The particular privileges under which a particular proprietor is allowed to hold certain portions of the land in the khewat are summed up in the phrase "sir land." When the proprietor loses the right of a proprietor, he acquires the right to hold the lands on certain easy terms, This privilege he may give up. When he does so, the whole body of co-sharers become entitled to hold the land. But none of the proprietors can hold the land as their sir.

5. To continue the history of this litigation, Mohammad Kazim being unsuccessful in the highest revenue Court, instituted a suit in the civil Court to obtain a declaration that Abu Jafar was not holding the entire area as sir-holder. The civil Courts, up to this Court, on appeal, gave him a decree to that effect. The result was that Abu Jafar was held to have got sir rights only over 2/16th share of the entire land viz. 12 bighas 1 biswa. Mohammad Kazim purchased the 1/16th share of Moti Fatma. Thus he has been entitled to 14/16th share out of the entire khata. Mohammad Kazim again went to the revenue Court to have the khatauni corrected, in accordance with the judgment of the civil Court. The revenue Court again refused to accede to his request.

6. There the matter stood, when Abu Jafar made an application to the revenue Court for an imperfect partition of the khewat. His object clearly was that he should be recorded as sir-holder of 2/16th of the area and as an exproprietary tenant of the remaining portion of 12 bighas and 1 biswa. Mohammad Kazim objected to this application and the question arose whether Abu Jafar was the sir-holder of the 12 bighas and 1 biswa, so that the provisions of Se