JUDGMENT

1. This is an appeal under Section 12(2), Oudh Courts Act, by Shambhu Dutt and Ganga Prasad defendants against Iswar Din the plaintiff. The appeal relates to certain plots included in patti Suraj Bali, village Harkhapur. Jai Narain, the cousin of Shambhu Dutt and Ganga Prasad defendants 1 and 2, owned 8 pies 17 krant 70 decimal 5/6 share in this patti while the other cosharers were Shambhu Dutt and Ganga Prasad. Jai Narain executed a deed of gift in favour of the plaintiff on 22nd October 1923. Ishwar Din, the plaintiff, is a stranger to the family. There was originally a dispute as to the validity of this deed of gift, but it has been laid at rest, and the deed of gift has been upheld. On the death of Jai Narain the defendants-appellants put in an application for mutation ignoring the deed of gift. The first Court ordered that mutation should be effected in their favour, but in appeal against this mutation order Ishwar Din succeeded and his name was ordered to be entered over the share gifted to him. It appears that after the death of Jai Narain the two defendants took possession of 46 plots whose total area was 53 bighas 5 Biswas in this patti. These plots were "sir" and "khudkasht" plots which had been in the possession of Jai Narain but had become vacant on his death. Ishwar Din applied under Section 145, Criminal P.C., against Shambhu Dutt and Ganga Prasad, but he was directed to go to the civil Court. Even after the mutation had been effected in his favour he failed to get possession over these specific plots. In 1928 he brought a suit in the Rent Court under Section 127, Oudh Rent Act. This suit also failed on the ground that Shambhu Dutt and Ganga Prasad were not trespassers but were cosharers in the patti. The present suit for possession was filed by Ishwar Din on 21st October 1935, two days before the expiry of 12 years since the death of Jai Narain.

2. The legal defences raised by the defendants-appellants were that they, being cosharers, were entitled in law to obtain and remain in possession until partition took place, and secondly that they had themselves acquired rights of "sir" under the provisions of Section 3, Clause 17(d), Oudh Rent Act. None of the Courts, which have gone into this case so far, gave any finding on the second legal plea. On an application being made before the learned single Judge of this Court who tried the second appeal, he gave permission for an appeal under Section 12(2), Oudh Courts Act, in respect of this ground. Now as regards this ground we find that a distinction must be made between "sir" plots and "khudkasht" plots. With respect to "sir" plots it seems clear that Jai Narain had a perfected right which he could pass on by the deed of gift to Ishwar Din. As the learned Judge who tried the second appeal says:

As I understand it, the deed of gift extends to all the rights which Jai Narain possessed as the proprietor of that share and those rights must necessarily include the rights acquired by him in 'sir' and 'khudkasht,' and by the deed of gift those rights undoubtedly passed to the donee under the deed of gift which has been held good by the two lower Courts.

3. It seems clear then that Jai Narain's rights in the "sir" land could be, and actually were, passed on to Ishwar Din by the deed of gift which has been held valid. These rights are independent of the delivery of actual possession. They could for instance be maintained through sub-tenants. These "sir" rights would also not cease to exist merely because the land was left fallow that is because no one remained in actual cultivating possession for some time. The appellants' learned Counsel can point out no provision of law whereby these "sir" rights would cease to exist merely because they were not exercised. In our opinion, Section 3 applies to the acquisition of "sir" rights in land which is not already "sir." It has no application to the acquisition of "sir" rights by one cosharer in the "sir" of another cosharer. A c