ORDER K.N. Mishra, J. - This writ petition under Article 226 of the Constitution is directed against the orders passed by opposite parties Nos. 1 and 2 in revision and appeal arising out of proceedings under S. 9-A 12) of the U.P. Consolidation of Holdings Act (Thereinafter to be referred to as the Act). 2. Dispute in the present case pertains to Khata No. 145 situate in village Tribhawan Nagar Pargana Tahsil and District Gonda. In the basic year, land of aforesaid Khata was recorded in the names of Guptar. Sheo Ratan and Ram Ratan, sons of Pancham, Sant Ram and Raghu Ram sons of Kedar Nath as tenure holders. During verification of the Khatauni and partal made by the Consolidation staff, Sant Ram was reported to be dead leaving behind his widow Smt. Sukh Raji. Two sets of objections were filed. One set of objections was filed by Dhani Ram Ram Nath son of Baleshwar and Ambar Nath son of Raghunandan claiming to be co-tenure holders along with the recorded tenants in the disputed holdings. They also claimed themselves to be heirs of Sant Ram and asserted that his widow Smt. Sukh Raji, petitioner No. 2. has re-married. Another objection was filed by Ram Sahad and Vishwa Nath sons of Mohan. They also claimed co-tenancy rights in the disputed holding. The Consolidation Officer rejected the objections filed vide order dated 28th Dec., 1973, by holding that the land in dispute was neither acquired by a common ancestor nor is it coming down in the identical form. It was further held that in view of the entries in Khatauni of 1345 Fasli, it appears that the ex-intermediary had resettled the land on an enhanced rent to the recorded tenants in 1345 Fasli. Aggrieved by the said order the objectors Dhani Ram and others filed an appeal which was heard and allowed by the Settlement Officer, Consolidation, vide order dated 31-1-1975 holding that the land in dispute is ancestral coming down from the time of the common ancestor Udit whose name was recorded in 1306 Fasli. After considering the revenue record entries it was observed that the land in dispute is coming down in the identical form and the objectors are co-tenure-holders in the land in dispute. Aggrieved by the said order, the petitioners filed revision which was dismissed on 7-2-1978 confirming the finding recorded by the Settlement Officer. Consolidation. 3. After considering the revenue record entries it was observed that the land in dispute is coming down in the identical form and the objectors are co-tenure-holders in the land in dispute. Aggrieved by the said order, the petitioners filed revision which was dismissed on 7-2-1978 confirming the finding recorded by the Settlement Officer. Consolidation. 3. Learned counsel for the petitioners contended that opposite parties Nos. 1 and 2 have wrongly held that the land in dispute is ancestral and is coming down in the identical form. He urged that in the year 1345 Fasli, the period of cultivation is noted as 9 years with an enhanced land revenue of Rs. 37/9/6. Learned counsel pointed out that in Khatauni of 1306 Fasli area of the holding was 6.87 Acres with land revenue of Rs. 14/ 15/- . He thus contended that the land in dispute is not coming down in the identical form and it should be taken to have been settled afresh 9 years prior to 1345 Fasli because the rent has been changed and the period of cultivation of 9 years as referred to in Khatauni of 1345 Fasli indicates that it was settled afresh. I am unable to agree with this contention. The Settlement Officer, Consolidation, has referred to the revenue record entries in detail in the impugned judgment and has observed that in 1306 Fasli the name of Udit IS recorded along with Devi on Khata No. 133 and the area of the holding was 6.87 Acres. He also pointed out that the said land is coming down in the identical form. In 1345 Fasli, Khatauni of Khata No. 68 the disputed land with an area of 6.87 Acres is recorded in the name of Kedar son of Udit, Lachman. Bharaman. Guptar and Sheo Din. Plots of this Khata tally with the plots recorded in 1306 Fasli and, thus, the land recorded in 1345 Fasli and 1306 Fasli is identical. It has further been observed that in 1345 Fasli Khata No. 165 is recorded in the names of Kedar son of Udit, Lachman, Guptar and Sheo Din son of Devi Din. This goes to show that the land which was in the name of Udit and Devi Din in the second settlement, that very land measuring 6.87 Acres was recorded in the name of Kedar, son of Udit and Devi Din in 1345 Fasli. This goes to show that the land which was in the name of Udit and Devi Din in the second settlement, that very land measuring 6.87 Acres was recorded in the name of Kedar, son of Udit and Devi Din in 1345 Fasli. I do not find any infirmity in this finding. No doubt there is a difference in the rent in the holding recorded in 1306 Fasli and 131 Fasli, but mere difference in rent will not be taken to be a case of fresh settlement of land with the persons whose names were recorded in 1345 Fasli. 4. Mere change of rent or duration in the Khatauni of 1345 Fasli does not necessarily indicate that the holding was settled afresh as there was no bar of enhancement of the rent by the landlord. The nature and character of the holding cannot be taken to have changed because of enhancement of rent by the landlord which could be done by him under S. 38 of Oudh Rent Act which provides that : - S.38:- " (1) A landlord may enhance the rent of a statutory tenant or of a person who succeeds as an heir of a statutory tenant under S. 48. either by written agreement by notice as hereinafter provided." Sub-s. (2) of S. 38 provides that : "(2) provided that, where rent is paid in kind, the proportion of produce paid as rent by a tenant shall not be subject to increase except in accordance with an established custom of the pargana in which the land is situate". 5. S. 39 provides that:- S. 39 : "(1) If a landlord desires to enhance the rent of a statutory tenant on the expiration of the statutory period, or at any subsequent time if the rent was not enhanced on the expiration of the statutory period or at any time during the currency of the tenancy in the case mentioned in S. 50 he may cause a notice to that effect to be served under section 42. "(2) Notwithstanding anything in S. 48, if a landlord desires to enhance the rent of a person who succeeds as an heir of a statutory tenant under S. 48 he may cause a notice to that effect to be served upon the said person under S. 42 : "(a) at any time within the period for which the said person is entitled to retain occupation of the holding under S. 48, if the statutory period of the deceased tenant had expired before the date of his death, and if the rent of the deceased tenant was not enhanced on the expiration of that period or at any subsequent time before the date of his death, or "(b) on the expiration of the statutory period of the deceased tenant or at any subsequent time, within the period for which the said person is entitled to retain occupation of the holding under S. 48, if the statutory period of the deceased tenant had not expired before the date of his death." 6. In sub-s. (1) of S. 48 it was provided that : S. 48 : "(1) When a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy : Provided that a person who succeeds as an heir of a deceased tenant to whom clause (c) of sub-s. (1) of S. 62-A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for the unexpired portion of the statutory period of the deceased tenant." 7. On a perusal of these provisions of Oudh Rent Act, it would be evident that the heirs of a statutory tenants were entitled to retain occupation of the holding on a rent payable by the deceased for a period of five years from the date of the tenant's death. The landlord could increase the rent of the statutory tenant as provided under Sections 38 and 39 of the Oudh Rent Act. The landlord could increase the rent of the statutory tenant as provided under Sections 38 and 39 of the Oudh Rent Act. Thus, enhancement of rent of the holding could not necessarily be taken to be a case of fresh contract in respect of the land in dispute. In absence of proof of a fact that after expiry of the statutory period of five years, as provided under S. 48, the heirs of the statutory tenant were either ejected or the land was resumed and let-out afresh with some of the heirs, it cannot be assumed that the holding was settled afresh merely on the enhancement of rent of the holding. The period of cultivation is noted to start from the time the rent is enhanced because within statutory period of ten years the rent could not be subsequently enhanced by the landlord of a holding of a statutory tenant as was provided under S. 36 of Oudh Rent Act. Therefore, whenever the rent was enhanced the period of cultivation, apparently on specified rent of the holding, was recorded as one so as to count the statutory period of ten years within which the landlord could not enhance the rent of the statutory holding. 8. In this view of the matter I do not find any substance in the argument of the learned counsel for the petitioners that since in the year 1345 Fasli enhanced rent was recorded and the period of cultivation was noted to be 9 years and as such the holding should be treated to have been settled afresh with the persons whose names were recorded in 1345 Fasli. The opposite parties Nos. 1 and 2, thus, rightly held that the holding in dispute is coming down from the time of the common ancestor in the identical form and I find that the change in rent or in period of cultivation cannot be taken to be a case of fresh settlement of the holding by the landlord with the recorded persons in the year 1345 Fasli. 9. It is well settled that in an ancestral and joint family holding, the members of the family cannot lose their rights merely because their names have not been recorded. 9. It is well settled that in an ancestral and joint family holding, the members of the family cannot lose their rights merely because their names have not been recorded. An heir of statutory tenant or his successors can claim co-tenancy rights provided they successfully prove that the land in dispute was acquired by their common ancestor and it has come down in an identical form and there had been no ejectment or resettlement of the holding with the recorded persons. If aforesaid facts are established, a claim of co-tenancy rights cannot be rejected merely on the ground that the names of the claimants were not recorded on the holding in dispute as co-tenants after the death of the common ancestor. 10. Heavy burden would lie on him who will assert that although the land in dispute initially belonged to common ancestor. but it was resettled with him or with his predecessor alone after expiry of statutory period of five years within which heirs of statutory tenants were entitled to remain in occupation and could not be ejected as was provided under S. 48 of the Oudh Rent Act. No doubt it is correct to say that the heirs of statutory tenants besides having right to retain occupation of the holding for five years from the date of death of statutory tenant on same rent, were not entitled to renewal of tenancy. But in view of S. 3 (18) of said Act, if after expiry of said period of five years they were not ejected within a period of three years thereafter nor fresh settlement of the land was made with the heirs or with any one of them and they continued to remain in occupation of the land without being ejected, they would be deemed to be statutory tenants themselves. (see 1936 R. D. 444 (CC). 11. Learned counsel for the petitioner however contended that the absence of entry of the names of the opposite parties and their predecessor would indicate that after death of the common ancestor, all his heirs did not remain in actual occupation of the land in question and only the petitioners' predecessors were in cultivator possession and as such statutory rights would be deemed to have accrued alone in their favour under section 3(18) of the said Act and the opposite parties cannot be held to be co-tenure-holders. I am unable to agree with this contention. It is well settled that possession of one co-heir is possession of all the heirs. In P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 it has been held that (at p. 318):- "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 co-heir 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 the 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-heir's 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." 12. In this view of the matter since in the present case it is not established that after death of common ancestor, all other heirs of Udit were not in possession and that they were ousted by some overt act of dispossession by the predecessor of the petitioner, who was one of the heirs of Udit, hence exclusive possession of predecessor of petitioner, even if established, would be deemed to be of all heirs and they all would be deemed to be in occupation of the land in question and consequently statutory tenants in the absence of their ejectment or evidence of re-settlement of land by the landlord with the predecessor of the petitioner within three years after expiry of statutory period of five years, although their names were not recorded. 13. In the present case concurrent finding of fact has been recorded by opposite parties Nos. 13. In the present case concurrent finding of fact has been recorded by opposite parties Nos. 1 and 2 to the effect that the land in dispute is coming down in the identical form from the time of common ancestor Udit and I do not find the said finding to be wrong or perverse. Thus, the enhancement of rent by the landlord, which was his statutory right, could not be taken to be a case of fresh settlement of the holding with the predecessor of the petitioners in the absence of any other evidence regarding letting out of land in question by the landlord. 14. In this view of the matter I find no substance in the aforesaid arguments of the learned counsel for the petitioner that because of change in rent or slight change in the area of the holding or change in the period of cultivation, it would make the - holding a fresh settlement with the recorded tenure-holders by the landlord. In the present case concurrent finding has been recorded by the opposite parties Nos. 1 and 2 to the effect that the land in dispute is Coming down in the identical form from the time of the common ancestor. In this view of the matter. I do not find any error of fact, law or jurisdiction in the impugned orders holding the objectors to be co-tenure-holders along with the petitioners. 15. In the result, the writ petition fails and is accordingly dismissed. The parties are, however, directed to bear their own costs. The stay order dated 17-8-1978 is hereby vacated.