ORDER K.N. Misra, J. - This petition under Article 226 of the Constitution is directed against the order passed by opposite parties 1 to 3 in proceedings under S. 9-A(2) of the U.P.C.H. Act. 2. The dispute in this case relates to Khata No. 739 which was recorded in the basic year khatauni in the name of petitioner Sita Ram. Opposite parties 4 to 9 filed an objection claiming co-tenancy rights in the disputed holding with the allegations that it belonged to the common ancestor Gaya Din and the name of Bhoodar, father of the petitioner Sita Ram, recorded in a representative capacity as he was the eldest son. The case was contested by the petitioner with the allegation that the land was settled afresh after the death of Gaya Din with his father Bhoodar sometime in the year 1345F and ever since then he continued to be recorded as sole tenant of the land in question. It was further averred that the petitioner is the sole tenant and in exclusive possession over the land in question. 3. The Consolidation Officer, after taking evidence of the parties, allowed the objection of opposite parties 4 to 9 holding them to be co-tenure-holders in the disputed holding vide order dated 7th April 1976. It was held that Gaya Din, the common ancestor, was the statutory tenant of the land in question which has come down in the identical form and the name of Bhoodar, who was the eldest son of Gaya Din, was recorded in a representative capacity. He rejected the claim of the petitioner regarding fresh settlement of the land in dispute after the death of Gaya Din in favour of his father Bhoodar. With these findings the Consolidation Officer held opposite parties 4 to 9 to be co-tenure-holders along with the petitioner. Aggrieved by the said order the petitioner filed an appeal which was rejected by the Settlement Officer (Consolidation) vide order dated 11th Nov. 1976. He confirmed the finding recorded by the Consolidation Officer and held opposite parties 4 to 9 as co-tenure-holders in the disputed holding along with the petitioner. The petitioner filed a revision under S. 48 of the Act which too was dismissed vide order dated 19th Aug. 1977 passed by the Deputy Director of Consolidation. The petitioner has challenged the orders passed by opposite parties 1 to 3 in this writ petition. 4. The petitioner filed a revision under S. 48 of the Act which too was dismissed vide order dated 19th Aug. 1977 passed by the Deputy Director of Consolidation. The petitioner has challenged the orders passed by opposite parties 1 to 3 in this writ petition. 4. Learned counsel for the petitioner, Sri P. K. Dixit, vehemently argued that admittedly Gaya Din died during Oudh Rent Act and sometime in the year 1345F and at that time the statutory tenancy was not heritable. He further contended that the land in question was settled afresh with the father of the petitioner Bhoodar and his name was recorded continuously from 1345F. He referred to the entry of 1359F wherein the name of Bhoodar is recorded with duration of 14 years and on the strength of this entry he contended that the land in question should be deemed to have been settled afresh with his father Bhoodar, Learned counsel further contended that opposite parties 4 to 9 have not claimed any right, title or interest in the land in dispute during this long period of 57 years and, therefore, their interest, if any, in the land in dispute should be deemed to have extinguished by uninterrupted long possession of the petitioner. Several settlements intervened during this long period and as such he contended that opposite parties 1 to 3 legally erred in ordering the names of opposite parties 4 to 9 to be recorded as co-tenure-holders in the holding in dispute. I have carefully considered the aforesaid arguments but I am unable to agree with the contentions of the learned counsel for the petitioner. 5. It is not disputed that Gaya Din, the common ancestor, was the statutory tenant of the land in dispute. It is also not disputed that Gaya Din died some time in the year 1938 i.e. 1345F. Under S. 48 of the Oudh Rent Act the heirs of a statutory tenant were entitled to retain possession of the holding for a period of five years and thereafter they were liable to ejectment at the instance of the landlord. The landlord could, after the expiry of the aforesaid five years settle the land in question with one of the heirs or with all the heirs of the deceased tenure-holder. The landlord could, after the expiry of the aforesaid five years settle the land in question with one of the heirs or with all the heirs of the deceased tenure-holder. If no fresh settlement was made and the heirs continued to remain in possession for a further period of three years they became statutory tenants under the provisions of the Oudh Rent Act. In Jagmohan Ahir v. Ram Kishan Misir, 1936 R D 400 : (AIR 1936 Oudh 322), King C. J. of the Oudh Chief Court held that : The heir of a statutory tenant is entitled to retain possession of the holding as a tenant for five years. After the expiration of five years the landlord may eject him under S. 53(2). Oudh Rent Act at any time within a period of three years. If the landlord does not eject him during the period of three years then the heir acquires the status of a statutory tenant. Even during the three years, during which the heir is liable to ejectment under S. 53(2), Oudh Rent Act, he is not a trespasser liable to ejectment by a Civil Court but can be ejected only in accordance with the provisions of Oudh Rent Act." I am in respectful agreement with the aforesaid view. The heirs of Gaya Din, i.e. the predecessors of the petitioners, as well as opposite parties 4 to 9 were, therefore, entitled to retain possession for a period of five years from the death of the common ancestor Gaya Din, who was the statutory tenant of the land in dispute. Having not been ejected within a period of three years they became statutory tenants of the holding in dispute which has come down, 6. It is not disputed that within the period of five years from the date of the death of Gaya Din U. P. Tenancy Act came into force on 18th Jan. 1940 and as such the heirs of a statutory tenant became hereditary tenants under the provisions of S. 29 of the U. P. Tenancy Act. The heir of a statutory tenant is himself a tenant and so whoever was at the commencement of the U. P. Tenancy Act an heir of the statutory tenant became automatically a hereditary tenant under S. 29(a). The heir of a statutory tenant is himself a tenant and so whoever was at the commencement of the U. P. Tenancy Act an heir of the statutory tenant became automatically a hereditary tenant under S. 29(a). To become a hereditary tenant it is not necessary for him to prove acquisition of statutory rights under the Oudh Rent Act. It is well settled that in the absence of proof of adverse possession, the possession of one co-tenant is possession in trust for the other co-tenant and no amount of lapse of time will operate to extinguish co-tenancy rights. 7. Learned counsel for the petitioner argued that the petitioner is in exclusive possession on the land in question for the last 57 years and as such he should be deemed to have acquired sole tenancy rights and the co-tenancy rights of opposite parties 4 to 9 shall stand extinguished. I do not find any substance in this argument. Since opposite parties 4 to 9 were co-tenure-holders along with the petitioner their tenancy rights could be extinguished only if the petitioner would have succeeded in proving ouster and adverse possession against opposite parties 4 to 9. Opposite parties 1 to 3 have concurrently held that the land in question belonged to the common ancestor Gaya Din and all his heirs and successors were entitled to the land in question. No evidence with regard to ouster or adverse possession was led by the petitioner, nor any evidence regarding ejectment of the heirs of Gaya Din was led by the petitioner. The petitioner has also not led any evidence regarding fresh settlement of the land in question with his father Bhoodar and as such even if the petitioner's father or the petitioner was in exclusive possession of the land in dispute the opposite parties 4 to 9 cannot be said to have lost their co-tenancy rights. The Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 (at p. 318) has held that : - "But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing coheir by the co-heir in possession who claims his possession to be adverse, should be made out. Ouster of the non-possessing coheir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession." 8. This Court in Om Prakash v. Bhagwan, AIR 1974 All 389 , had observed that : - "Elder brother's name being mutated in the records, his receiving of rents etc. of the property and the subsequent mutation in the name of elder brother's heirs in evidence which by itself does not prove open hostile act against the co-sharer." 9. The petitioner in the present case, as already observed above, has not led any evidence to prove his alleged adverse possession. He has not proved any overt act of hostile possession against the opposite parties and as such the opposite parties cannot be said to have lost their co-tenancy rights by adverse possession. 10. In this view of the matter I am of the opinion that the impugned orders passed by opposite parties 1 to 3 do not suffer from any infirmity nor do they suffer from any error of law or jurisdiction. 11. No other point is pressed. 12. The writ petition fails and is dismissed. Parties shall, however, bear their own costs.