JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment dated September 6, 1968 passed by Sri R.K. Garg, Addl. Commissioner, Faizabad Division, dismissing the appeal No. 987 and confirming the judgment and decree dated August 14, 1967 of the Asstt. Collector, 1st Class, district Pratapgarh in suit No. 374/309/181/795 under Section 229-B, Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The appellant, Ram Kripal, had filed a suit claiming the declaration of Bhumidhari rights in certain plots of village Pura Kharag Rai. The trial court held that the plaintiff was co-Bhumidhar of the land in suit along with the defendants 6 to 8, Ram Sunder, Sarjoo Prasad and Lalta Prasad. The lower appellate court has upheld the order of the trial court. Ram Kripal has now come up in second appeal before the court. 4. The first ground taken by the learned counsel for the appellant is that there is an error apparent on the rate of the record that while the trial court held under issue No. 6 that the defendants 6 to 8 were declared be co-Bhumidhars along with plaintiffs, yet the suit in its operative portion of judgment stands decreed, while actually it stands dismissed. A perusal of the judgment of the trial court shows that it is indeed so. The trial court has held that both the plaintiff and defendants 6 to 8 were co-Bhumidhars of the land in suit and were in possession of the land in suit as such. This was however not the case of the plaintiff who had claimed declaration of sole Bhumidhari rights. There is glaring contradiction between the two portions of the judgment of the trial court which vitiate the entire judgment. 5. The learned counsel for the appellant has also contended that the lower appellate court erred in law in ignoring the entries of 2nd and 3rd settlement which are in the favour of the appellant as against the entries of the first settlement. He has further argued that the trial court erred in law in thinking that the land belonged to an area where Agra Tenancy Act was in force, that in fact Oudh Rent Act was in force where the land in suit is situated. He has further argued that the trial court erred in law in thinking that the land belonged to an area where Agra Tenancy Act was in force, that in fact Oudh Rent Act was in force where the land in suit is situated. He has also argued that even the first settlement entry which has been the basis of an adverse finding against the appellant does not describe the land as grove, that Mafi under the Oudh Rent Act under the first settlement was held at the sweet will of grantor-landlord and there was no presumption of its continuity and inheritance by the heirs of the Mafidar and that the village record entries of 2nd settlement running over the period of half a century in favour of the appellant have been set at naught by the lower appellate court by misplacing the onus of proof. A perusal of the record shows that in the first settlement the plots in dispute are recorded in the name of Hanuman as Sankalpdar. In the 2nd settlement the plots are recorded in the name of Sheodutta son of Hanuman and in the 3rd settlement the plots are recorded in the name of Basudeo son of Hari Prasad. The pedigree filed by the defendants 6 to 8 shows that Hanuman had 3 sons, Sheodutta, Sheetlabux and Mata Gulam. Sheodutta had a son Kanhaiya Bux who had sons Umadutta and Hari Prasad. Basdeo, Gaya Prasad and Baij Nath were the sons of Hari Prasad and the plaintiff-appellant, Ram Kripal is the son of Basdeo, Mata Gulam had died without any issue. Sheetalbux had 3 sons Balibhadra, had 3 sons. Ramshunder, defendant No. 6, Sarjoo Prasad, defendant No. 7 and Jagannath who is father of Lalta Prasad defendant No. 8. Basdeo, Gaya Prasad and Baij Nath were the sons of Hari Prasad and the plaintiff-appellant, Ram Kripal is the son of Basdeo, Mata Gulam had died without any issue. Sheetalbux had 3 sons Balibhadra, had 3 sons. Ramshunder, defendant No. 6, Sarjoo Prasad, defendant No. 7 and Jagannath who is father of Lalta Prasad defendant No. 8. The learned counsel for the appellant has referred to Krishana Murai v. Mahadeo and others, 1941 R.D. 1028 in which the Board of Revenue has held as follows:- "Since non-occupancy holdings under the Oudh Rent Act were not heritable it cannot be presumed that a certain plot is the ancestral holding of a person merely because the plot was entered in the name of his father in the settlement of 1892." The learned counsel for the respondent has on the other hand referred to Balbhadhar v. Bhagwandin and others, 1942 R.D. 448 in which the Board of Revenue has held as follows:- "The rights of a co-tenant can be extinguished either by transfer, surrender or adverse possession. In the absence of evidence of any of these three, the mere fact that the name of a co-tenant was not entered in the papers for a long period during which a settlement intervened does not extinguish his rights for the principle that the possession of one co-tenants is possession of all co-tenants prevails." He also referred to 1942 R.D. 512 in which the following observations have been made:- "When a person is shown to have acquired some title to a holding, the fact that his name has not been shown in the Patwari papers for a large number of years can be held to have extinguished his rights only if it is shown (1) that the party has relinquished his rights or (2) that he has lost them by separation or (3) that he has lost them by adverse possession. The possession of one-co-tenant is the possession of one co-tenants unless it is shown that the possession is openly adverse." He has also referred to Puran Lal v. Chunni and others, 1948 R.D. 161 in which the Board of Revenue has laid down the following principle:- "It is a well established principle of law that the possession of one cotenant is the possession of all co-tenants. In the case of an ancestral have not appeared in the papers or that they have not been in possession for some time does not do away with their rights as co-tenants. In the absence of evidence of ouster or openly adverse possession their rights cannot be held to be lost by adverse possession." 6. The principle that the possession of one co-tenant is the possession of all co-tenants and therefore the rights of co-tenants in an ancestral holding are not extinguished merely because that they are not in possession is not in doubt. However, it has to be seen that the co-tenancy itself has to be established rather than presumed. The contention of the learned counsel for the appellant that as Hanuman was the Sankalpdar of the land in suit during the first settlement, the tenancy could not have been inherited under Oudh Rent Act is legally correct. Thus the subsequent entry of the plots in dispute in the name of Sheodatta and thereafter of Basudeo do not mean that the holding was an ancestral one and was inherited by all the descendants of Hanuman. On the other hand it merely established that the Mafi land was being held at the sweet will of the grantor landlord and that after Hanuman Sheodatta alone became its Mafidar. In the absence of any evidence to the contrary it cannot be presumed that all the sons of Hanuman inherited the land. The learned Addl. Commissioner has taken an erroneous view in holding that because the land was given in Sankalp to Hanuman both the sons of Hanuman should be entitle to succeed to this property even though only the name of one son was recorded in the 2nd settlement. It may be further observed that Ramsunder, defendant No. 6, has admitted in his cross examination that after the death of Hanuman there was partition amongst his sons. In view of this admission, the case of a co-tenancy continuing in the land in suit in spite of the entries being exclusively in the name of plaintiff-appellant, Ram Kripal or his father and fore-father alone, fails to the ground. The judgments of the courts below holding that the plaintiff appellant and defendants 6 to 8 were co-Bhumidhars of the land in suit are based not on evidence on record but on presumption and on an erroneous view of law. 7. The judgments of the courts below holding that the plaintiff appellant and defendants 6 to 8 were co-Bhumidhars of the land in suit are based not on evidence on record but on presumption and on an erroneous view of law. 7. The result is that I allow, the appeal, set aside the judgment of the courts below and other plaintiffs suit to be decreed in to-to.