JUDGMENT Satish Chandra, J. - The dispute relates to plot No. 243 in the town of Amheta, district Saharanpur. One Gokul Chand was the Zamindar of several Khewats including Khewats Nos. 23 and 299 to which this plot No. 243 appertaned. On his death his interest devolved on his two sons Raghubans Sahai and Rikhi Lal. Raghubans Sahai died in 1903 leaving his son Shambhu Nath. Rikhi Lal died in 1905 leaving behind him his widow Smt. Asha Devi, Rikhi Lal had executed a will of his half share in the family property in favour of his widow. On 17th August, 1908. Shambhu Nath and Smt. Asha Devi entered into a family settlement. Under it the lady was to get Rs. 1,300- annually, as maintenance and Shambhu Nath was to be the owner in possession of the entire property including the two Khewats to which plot No. 243 appertained. It was provided in the agreement that in case three half yearly instalments of the allowance were not paid, the lady will have a right to cancel the agreement and sue for possession. Shambhu Nath died in or about 1933 leaving a widow Smt. Cliampa Devi. Smt. Ghampa Devi committed default in payment of the instalments. Smt. Asha Devi exercised her rights under the agreement and cancelled it. She instituted a suit (No. 97 of 1935) in the Civil Court for possession over a half share of the entire family properties covered by the family settlement of 1908. The suit included Khewats Nos. 23 and 299. When the suit was instituted these two Khewats were numbered differently, namely 47 and 312. But it is agreed between the counsel that the land of these two khewats was the subject-matter of the suit. The suit was contested by Smt. Champa Devi as also by certain transferees from Shambhu Nath who were impleaded as defendants. The trial court dismissed the suit. It held that the clause for cancellation was in the nature of penalty and therefore not enforceable. The plaintiff appealed. The Court on 11th March, 1953, allowed the appeal and decreed the suit for possession on the finding that Smt. Asha Devi had a half share in the family properties and that she was entitled to cancel the agreement for default in payment of the maintenance allowance. 2. The plaintiff appealed. The Court on 11th March, 1953, allowed the appeal and decreed the suit for possession on the finding that Smt. Asha Devi had a half share in the family properties and that she was entitled to cancel the agreement for default in payment of the maintenance allowance. 2. By this time Smt. Asha Devi appears to have died and was substituted by her son Vidya Prakash, who put the decree in execution on 27th February, 1956. The execution application prayed for possession over certain properties including plot No. 243 now in dispute. Though there was some controversy during arguments on this point but it appears to he clear that this plot was the subject-matter of the execution proceedings (vide Annexure C to the Writ Petition) It appears that Vidya Prakash the decree-holder on 27th February, 1961, sold his half share in plot No. 243 in favour of Dharam Prakash and Suresh Chandra, petitioners before me. On or about 1st April, 1961, Suit. Champa Devi, Judgment-debtor, made an application to the execution court that the execution was proceeding in relation to plot No. 243 which had been sold away by the decree-holder. The decree-holder has no longer any interest in the plot. The execution is, therefore, liable to be struck off. There upon the execution appears to have been struck oil on 16th April, 1962. 3. On or about 26th April, 152, the purchasers, who are the petitioners before me, made an application to the execution court for revival of the execution, for substitution of their names in place of the decree-holder, and for execution of the decree. This application was also contested by Smt. Champa Devi. On 16th April, 1962 Vidya Prakash and Smt. Champa Devi entered into an agreement where under Vidya Prakash relinquished his share in this plot. The two petitioners thereupon filed a suit for cancellation of the agreement and for possession over the half share in this plot in 1955. That suit is still pending. Because of the pendency of that suit the petitioners made an application to the execution court for staying further proceedings in execution. The execution court granted this prayer and stayed the proceedings pending before it by an order dated 11th September, 1965. 4. At this stage consolidation proceedings commenced in the_ village where the plot is situate. Because of the pendency of that suit the petitioners made an application to the execution court for staying further proceedings in execution. The execution court granted this prayer and stayed the proceedings pending before it by an order dated 11th September, 1965. 4. At this stage consolidation proceedings commenced in the_ village where the plot is situate. The present petitioners filed an objection under Section 9-A of the U. P. Consolidation of Holdings Act claiming a half share in plot No. 243. the Consolidation Officer upheld the claim. The Settlement Officer (Consolidation) dismissed the appeal of Smt. Champa Devi. He found that this plot, No. 243, belonged to Gokul Chand and was in the family since then. Both the parties would have a half share in it. The plot was not the self acquired property of Shambhu Nath. The High Court decree having become final would operate and under it Vidya Prakash was held entitled to a half share of the family properties and to their possession. Consequently, the objectors, who were successors-in-interest of Vidya Prakash, had a half share in this plot. He held that eN en though the plot may in part be a grove and in part a sir or Khudkasht, the possession of Shambhu Nath would be deemed to be on behalf of the entire body of co-sharers. His exclusive possession would not extinguish the title of Vidya Prakash. It has also held that the compromise dated 16th April, 1962, between cut. Champa Devi and Vidya Prakash was valueless because Vidya Prakash had prior to it transferred his title in favour of the petitioners. He had no interest left in this plot which he could surrender. 5. Aggrieved Smt. Champa Devi filed a revision before the Deputy Director of Consolidation and succeeded. The Deputy Director of Consolidation held that tho civil suit related to zamindari property and house property which did not specifically include the plot now in dispute. The zamindari rights vanished under the U. P. Zamindari Abolition and Land Reforms Act. The bhumidhari rights were fresh rights conferred on those who held individual plots as their sir or khudkasht or grove. Smt. Champa Devi alone had held the plots as her sir. Khudkasht and grove. She alone would get bhumidhari rights. The zamindari rights vanished under the U. P. Zamindari Abolition and Land Reforms Act. The bhumidhari rights were fresh rights conferred on those who held individual plots as their sir or khudkasht or grove. Smt. Champa Devi alone had held the plots as her sir. Khudkasht and grove. She alone would get bhumidhari rights. Vidya Prakash could not be deemed to have a half share in the bhumidhari rights created by the U. P. Zamindari Abolition and Land Reforms Act. Consequently the petitioners could not claim a half share in the bhumidhari rights in this plot. On these findings the petitioners' claim was rejected. 6. It is true that in view of the decision of the Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., 1961 A.L.J. 716 the position is that the U. P. Zamindari Abolition and Land Reforms Act created fresh rights in the nature of bhumidhari. The previously existing rights were extinguished. Section 18 of the U. P. Zamindari Abolition and Land Reforms Act seeks to settle certain lands with intermediaries and cultivators as bhumidhars. Under clause (a) all lands in possession of or held or deemed to be held by an intermediary as sir, Khudkasht or intermediary's grove on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary c r cultivator and such person will be entitled to take or retain possession as a bhumidhar thereof. Under this provision a person who not only was in possession but also persons who will be deemed to be intermediaries and as such deemed to have held the plot as sir. Khudkasht or an intermediary's grove, would also become bhumidhars. In order to find whether a person acquires bhumidhari rights it has to be seen whether he was in possession or could be deemed to have held the plot as sir, khudkasht or grove on the date immediately preceding the date of vesting. The rights as on 30th June, 1952, would determine the acquisition of rights under Section 18. 7. The High Court decree decided that both the parties had a half share in the family estate. That declaration was made in a suit filed in 1935, by a decree passed in March, 1953. The rights as on 30th June, 1952, would determine the acquisition of rights under Section 18. 7. The High Court decree decided that both the parties had a half share in the family estate. That declaration was made in a suit filed in 1935, by a decree passed in March, 1953. In view of that decree it will have to be taken that both the branches of Gokul Chand's family had a half share in the family properties on 30th June, 1952. If Smt. Champa Devi or his successor Vidya Prakash had a half share in this plot on 30th June, 1952, they would under the statute acquire a half share in the bhumidhari rights that were conferred by Section 18. The plot will be deemed to be settled with all those persons who ha:l rights in it on 30th June, 1952, by virtue of which bhumidhari rights came into, existence. 8. The question would be whether this plot was sir, Khudkasht or grove of both the parties on 30th June, 1952. For the respondents Mr. G. N. Verma relied on Rama Kant Singh v. Dy. Director of Consolidation, 1965 A.L.J. 313. In that case a Division Bench held that it is not correct to say that cultivators possession of a co-proprietor is cultivators possession of all co-proprietors. Khudkasht rights are derived from cultivators possession and not from possession over proprietary rights. It is legally and factually possible for one out of several co-proprietors to be in cultivators possession of joint land and only that co-proprietor, who was in cultivators possession, becomes Khudkasht-holder. Possession over proprietary right does not by itself confer khudkasht-holder's rights. Bhumidhari rights are derived from Khudkasht rights. Only those cultivators who are in cultivators possession can claim bhumidhari rights now. This case does not really go to support the case of the respondents. Khudkasht rights are acquired by a proprietor by virtue of his cultivators possession. In that Act of cultivation the other co-sharers in the proprietary rights are not automatically included. The proprietor who cultivates, by that act acquires khudkasht rights in relation to that plot. But once a proprietor becomes a khudkasht-holder of a given plot, and then he dies, the entire body of his heirs at that time would together become the Khudkasht-holder. His khuclkasht rights will devolve on the heir whosoever he may be. The proprietor who cultivates, by that act acquires khudkasht rights in relation to that plot. But once a proprietor becomes a khudkasht-holder of a given plot, and then he dies, the entire body of his heirs at that time would together become the Khudkasht-holder. His khuclkasht rights will devolve on the heir whosoever he may be. If the Khudkasht-holder dies leaving two sons both of them would become khudkasht-holders of that plot. Thereafter one of the two cultivators may alone cultivate the land, but nonetheless both of them will remain the Khudkasht-holders unless the ouster of one of them is established. The law propounded in Raina Kant Singh', case does not deal with the situation of succession on the death of a Khudkasht-holder. 9. In the present case the finding of the Settlement Officer (Consolidation) which has not been set aside by the Deputy Director of Consolidation was that the hint was the grove of Gokul Chand. He has also found that if some portions be held as sir or Khudkasht, they will be treated to be the sir or Khudkasht of Gokul Chand. On his death those rights will devolve on the entire body of his heirs in accordance with personal law. Admittedly bath the sons had a half share. That share will continue. 10. In 1908 when the family settlement was entered into both the parties would have a half share in the sir, Khudkasht or grove plots as well. Under the settlement Smt. Asha Devi surrendered her rights in lieu of maintenance allowance. On cancellation of that agreement, as contemplated by itself, the preexisting rights whatever they were, revived. The agreement mentioned that a will was executed by the husband of Snit. Asha Devi. Since a dispute had arisen a family settlement was made. That settlement did not finally decide whether the will was good or bad. On the cancellation of the family settlement the parties will have the same rights which they had on the date preceding the date of its execution. 11. For the respondents it was urged that both the branches being joint add the property being ancestral on the death of Rikhi Lal his share would pass by survivors hip to Shambhu Nath who was the next male relative. 11. For the respondents it was urged that both the branches being joint add the property being ancestral on the death of Rikhi Lal his share would pass by survivors hip to Shambhu Nath who was the next male relative. This plea cannot now be sustained because it stands negatived by the High Court's judgment in the previous civil suit which operates as res judicata between the parties. 'I he High Court did not expressly decide that the principle of survivorship would or would not apply, but it did declare that Smt. Asha Devi had a half share and that she was entitled to it on the cancellation of the agreement. In view of,that decree it is no longer possible to investigate the question whether the family was joint or whether the principle of survivors hip was applicable. 12. The position, therefore, appears to be that on 30th June, Smt. Asha Devi, and after her death Vidya Prakash, had a half share in this plot. The plot was either grove or sir or khudkasht. All persons who had a share in it, would become bhumidhar in relation to their pre-existing shares. 13. It was then urged by Mr. Verma (who presented his case with ability) that assuming that the respondents became the bhumidhars on 1st July, 1952, their title extinguished because the petitioners being in adverse possession all through became sirdar's under Section 210 of the U, P. Zamindari Abolition and Land Reforms Act after six years of the decree in March, 1953. In the Civil Suit. A Bench of this Court had held that the question whether the plaintiff would or could not be put in actual possession would be decided in the execution proceedings. The decree was for possession over a half share of this blot. The plaintiff could not demand actual possession over any specific portion of the plot till it was partitioned. The execution court could deliver formal possession over the decreed half share. Thereafter if the defendant refused partition, I he plaintiff could have a cause of action for division of the holding and for actual possession over the portion of the plot allotted to her. Such a suit would be under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act and not under Section 209. 14. The decree declared that the plaintiff had it half share. Such a suit would be under Section 176 of the U. P. Zamindari Abolition and Land Reforms Act and not under Section 209. 14. The decree declared that the plaintiff had it half share. It necessarily involved the further declaration that the defendant was the owner of the other half share. The defendant would hence be deemed to be in possession over the entire plot in his capacity of a co-sharer. His possession would be on behalf of all the co-sharers. If his possession qua the plaintiff's share was adverse, then the plaintiff's title would have been declared as extinguished. But the decree was to the contrary. The defendant cannot be heard to say that his possession was adverse to the plaintiff during the pendency of that suit. That suit was decided in March, 1953. There is no allegation or finding that the defendants did any avert act thereafter to oust the plaintiff from her share, so as to change the pre-existing nature of his possession. His possession remained in the status of a co-sharer. On the analogy of Section 116 of the Evidence Act the defendant could not change the character of his possession until he had restored possession to the plaintiff and had again taken it forcibly. His possession, therefore, never became otherwise than in accordance with the provisions of law. So, a cause of action for a suit for ejectment under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act never accrued to the plaintiff. Further, it cause of action for a suit under Section 209 arises when a person takes or retains possession without the consent of the plaintiff. Here the plaintiff's name had actually been mutated in the revenue records on the basis of Rikhi Lal's will in her favour prior to 1908. The defendant took possession over the plaintiff's share under the agreement of 1908. It was with her consent. He continued in possession as such. Now after the decree the plaintiff could demand ejectment only after obtaining a division of the holding. Till then the defendant's possession would not be without the plaintiff's consent. The co-sharer could continue in possession for ever without giving rise to a cause of action for a suit for ejectment under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. Till then the defendant's possession would not be without the plaintiff's consent. The co-sharer could continue in possession for ever without giving rise to a cause of action for a suit for ejectment under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. For all these reasons Section 209 of the U. P. Zamindari Abolition and Land Reforms Act was not attracted and so the consequences under Section 210 would not ensue. The defendant cannot claim to be sirdar, This position would continue at least till 16th April, 1962, when the execution was struck off. 15. Thereafter the petitioners applied for revival of the execution. But since that application has not been granted it could not be urged that the execution which had been struck off was really revived. But that will not affect the matter at all. The consolidation proceedings appear to have commenced somewhere in 1966. So, even if it be assumed that the possession of Smt. Champa Devi became otherwise than in accordance with the provisions of the law for the time being in force in April 1962, she would acquire sirdari rights only after being in possession for over six years. But before six years could expire the consolidation operations commenced in 1966. In Smt. Shakuntala Devi v. Dy. Director of Consolidations, Civil Misc. Writ No. 475 of 1967, decided on 13.03.1968. I have held that on the publication of a notification under Section 4 of the U. P. Consolidation of Holdings Act the continued possession would not ensure for maturing any title because on that date Sections 209 and 210 of the U. P. Zamindari Abolition and Land Reforms Act would be deemed to have stood repealed, so that no suit could have been filed and no consequence mentioned in Section 210 could accrue. On the (late of the notification under Section 4 of the U. P. Consolidation of Holdings Act Smt. Champa Devi did not mature any title as sirdar. Her subsequent possession was irrelevant. 16. In my opinion the Settlement Officer (Consolidation) was right in accepting the claim of the petitioners. 17. The petition, therefore, succeeds and is allowed. The impugned order of the Deputy Director of Consolidation is set aside and that of the Settlement Officer (Consolidation) restored. The petitioners will he entitled to their costs.