JUDGMENT K.N. Misra, J. - Both these writ petitions are directed against the same judgment and orders passed by opposite parties 1 to 3, and, as such, the same are heard together and are disposed of by this judgment. 2. The dispute in the present case relates to land of Khata Noc 36 of the basic year khetauni in respect of village Mahmadpur, Pargaoa Surhurpur, Tahsil Akbarpur, District Faizabad. The said Khata No. 36 consists of 84 plots with an area of 44 bighas, 9 biswas and 4 biswans is and it was recorded in the basic year khetauni in the names of petition's of writ petition No. 1712 of 1978, Jagdamba Singh and Ran Bahadur Siagh. An objection was filed under Section 9A (2) of the U.P. Consolidation of Holdings Act, for short 'the Act,' by opposite parties 5 to 8 namely, Tej Bahadur Singh, Ayodhya Singh, Kalap Raj Singh and Chandra Bhan Singh, sons of Ram Bachan Singh. They gave the following pedigree which was not disputed: Shital Singh Devi Singh Ram Dhani Singh (died issueless) Mata Djhal Singh Vijai Bahadur Singh Ram Baran Singh Ran Bahadur Singh petitioner No.2 Jagdamba Singh petitioner No. 1 Sukhraj Singh Ram Bachan Singh Tej Bahadur Singh (O. P. No.5) Ayodhya Singh (O. P. No.6) Kalapraj Singh (O. P. No.7) Chandra Bhan Singh (O. P. No.8) It was further asserted by opposite parties 5 to 8 that the land of the aforesaidholding, Khata No. 36, is the ancestral joint family property and that the name of petitioner and his predecessorsininterest, was recorded in the representative capacity. They further stated that they have been in possession over the land in dispute to the extent of their half share. It was also averred that the land in dispute belonged to Devi Singh, the common ancestor of the parties. They, thus, prayed that their names be recorded as cotenureholders along with the petitioners in the disputed holding and they be given half share therein. 3. The case was contested by petitioners who asserted that the land of the disputed holding is neither ancestral nor joint family property. It was acquired by their grandfather Mata Dihal Singh and he was separate from his brother Ram Baran Singh. 4. 3. The case was contested by petitioners who asserted that the land of the disputed holding is neither ancestral nor joint family property. It was acquired by their grandfather Mata Dihal Singh and he was separate from his brother Ram Baran Singh. 4. The Consolidation Officer, after taking evidence of parties, partly allowed the objection of the opposite parties 5 to 8, holding them to be cotenureholder only in respect of 36 plots out of 84 plots of the Khata in dispute. Their objection in respect of remaining 48 plots was rejected. The Consolidation Officer recorded a finding that these 36 plots of the disputed holding originally belonged to Devi Singh and those were also recorded in his name in the first settlement record of 1283 J7. In respect of 48 plots it was held that those plots did not belong to common ancestor Devi Singh nor those can be treated to be joint family property and, as such, the petitioners were held to be sole tenureholders in respect of these plots. It was also held that those plots were acquired by Mata Dihal, grandfather of the petitioners. Aggrieved by this order, both the petitioners and opposite parties 5 to S preferred appeals. The settlement Officer, Consolidation, dismissed both these appeals vide order dated 5.8.1976 and maintained the order passed by the Consolidation Officer. Still feeling aggrieved by this order, petitioner as well as opposite parties 5 to 8 filed revisions which were also dismissed by the Deputy Director of Consolidation vide order dated 13.3.1978. Petitioners have now challenged these orders passed by opposite parties 1 to 3 by preferring writ petition No. 1712 of 1978 and the opposite parties 5 to 8 have also preferred writ petition No. 2371 of 1978. 5. I have heard learned counsel for the parties and have also gone through the impugned orders very carefully. I have also perused the averments contained in writ petitions filed by the parties, as well as counter and rejoinder affidavits and the documents annexed thereto. 6. Learned counsel, Sri S.K. Mehrotra, for the petitioner Jagdamba Singh urged that the opposite parties 1 to 3 have erred in law and facts in the case in holding the opposite parties 5 to 8 to be cotenureholders in 36 plots of t he disputed holding. 6. Learned counsel, Sri S.K. Mehrotra, for the petitioner Jagdamba Singh urged that the opposite parties 1 to 3 have erred in law and facts in the case in holding the opposite parties 5 to 8 to be cotenureholders in 36 plots of t he disputed holding. It was urged that neither the holding in dispute nor these 36 plots of the holding in which cotenancy right has been given to the opposite parties 5 to 8, could be treated to be ancestral holding coming down from the time of common ancestor Devi Singh. It was pointed out that Devi Singh was recorded as tenureholder. In the year 1283 F., over 29 plots with an area of 24 bighas, 4 biswas, on an annual rent of Rs. 5969. Devi Singh, admittedly, died in the year 1891. Referring to the IInd settlement entry of 1301F., learned counsel pointed out that the petitioners' grand father Mata Dihal was recorded as a tenant of 43 plots with an area of 43 bighas, 19 biswas, 16 biswansis on an annual rent of Rs. 11763. It was pointed out that in the second settlement of 1301 F. Ram Baran Singh, the great grandfather of the opposite parties 5 to 8, was also recorded as a tenureholder on a separate holding consisting of 19 plots with an area of14 bighas, 18 biswansis on an annual rent of Rs. 3739. Learned counsel indicated that in the holding of Mata Dihal Singh recorded in 1301 F there were 43 plots with an area of 43 bighas, 19 biswas and 16 biswansis, but only 19 plots, which were recorded in the name of Devi Singh in first settlement, were included in the said khata of Mata Dihal Singh and that in the holding of Ram Baran Singh also there were 5 plots of the time of Devi Singh. He, thus, urged that the land which initially belonged to Devi Singh did not come down in the identical form in the disputed holding recorded in the name of petitioners. Mata Dihal Singh had acquired land separately while his brother Ram Baran Singh also acquired land separately and in both these holdings only some of the plots were included which initially belonged to Devi Singh. 7. Mata Dihal Singh had acquired land separately while his brother Ram Baran Singh also acquired land separately and in both these holdings only some of the plots were included which initially belonged to Devi Singh. 7. Learned counsel further pointed out that the holding of Mata Dihal Singh, recorded in 1301 F., also consists of several other plots which did not belong to Devi Singh. It was, thus, a fresh settlement made by the landlord with Mata Dihal Singh in respect of 43 plots measuring 43 bighas 19 biswas 16 biswansis on an annual rent of Rs. 11763. Similarly, 19 plots in which 5 plots of Devi Singh's time were included, were settled with Ram Baran Singh. Ram Baran Singh was subsequently ejected from his land on account of arrears of rent. It appears that ejectment suit on the.ground of arrears of rent was also filed by the landlord against Mata Dihal Singh in respect of his aforesaid landholding but he was not ejected as he had paid the arrears of rent. Suit for arrears of rent was also filed against the petitioners, by the landlord, but they were not ejected from the land in dispute as arrears of rent were paid by them. Referring to all this evidence, learned counsel pointed out that the petitioner and his predecessor Mata Dihal Sjngh were treated to be sole tenureholders of the land in dispute, by the landlord, throughout, and neither Ram Baran Singh nor his successors had any right, title or interest in the holding in dispute. 8. Learned counsel further urged that the opposite parties 1 to 3 legally erred in picking up certain plots from the holding in dispute which, were initially recorded in the name of Devi Singh in the first settlement and wrongly gave cotenancy rights to opposite parties 5 to 8, treating those plots to be ancestral property. It was contended that in order to uphold the claim of cotenancy rights it had to be established that the disputed holding has come down in identical form from the time of common ancestor Devi Singh and that there was no break in tenancy. It was contended that in order to uphold the claim of cotenancy rights it had to be established that the disputed holding has come down in identical form from the time of common ancestor Devi Singh and that there was no break in tenancy. Since the fend in dispute, which consists of 84 plots with an area of 44914, did not belong to Devi Singh and has not come down in identical form and, as such, the opposite parties 1 to 3 legally erred in giving cotenancy rights to opposite parties 5 to 8, in the aforesaid plots merely on the ground that some of these were, recorded in the name of Devi Singh in the first settlement. 9. Learned counsel further urged that the opposite parties 1 to 3 have recorded a finding upholding the possession of the petitioners over all the plots of the disputed holding but they have erred in accepting the claim of the opposite parties in respect of 36 plots of the disputed holding; on the ground that these belonged to Devi Singh, and the opposite parties 5 to 8 would be deemed to be in constructive possession, being cotenureholders in those plots along with the petitioners. Learned counsel for the petitioner urged that since cotenancy rights, as claimed by the opposite parties 5 to 8, are denied and hotly contested and, as such, the rule of constructive possession could not be invoked. This rule regarding, possession of one cotenant would be deemed to be possession of other, would hold good only in cases where cotenancy rights are admitted between the parties. Learned counsel, thus, urged that the impugned orders passed by opposite parties 1 to 3 cannot be sustained and deserve to be quashed. 10. In reply, the learned counsel for the opposite parties 5 to 8, Sri Hargur Charan, urged that the land in dispute was ancestral inasmuch as out of 84 plots atleast 36 plots were of the time of Devi Singh. In respect o other 48 plots of the holding, his argument was that those plots were acquired by Mata Dihal Singh in representative capacity as he ad and Karta of the joint Hindu family and, as such, in all these 84 plots of the disputed holding the opposite parties 5 to 8 are cotenureholders having half share therein. In respect o other 48 plots of the holding, his argument was that those plots were acquired by Mata Dihal Singh in representative capacity as he ad and Karta of the joint Hindu family and, as such, in all these 84 plots of the disputed holding the opposite parties 5 to 8 are cotenureholders having half share therein. He, thus, urged that the impugned orders passed by opposite parties 1 to 3 deserve to be modified to the extent that instead of giving cotenancy rights in 36 plots in the disputed holdings, the opposite parties be given cotenancy rights also in 48 plots of the disputed holding. It was, thus, urged that the opposite parties be given cotenancy rights in all the 84 plots of the holding in disputed khata No. 36. This argument was urged by the learned counsel, in support of his claim which he had raised in writ petition No. 2371 of 1978 filed by Tej Bahadur Singh and others. So f9r as the question of possession is concerns, learned counsel had urged that the opposite parties 1 to 3 have rightly applied the aforesaid principle that possession of one cotenant will be deemed possession of others because the petitioners have not claimed rights by adverse possession against, the opposite parties 5 to 8 who have been cotenants in, at least, 36 plots belonging to common ancestor Devi Singh. 11. Having heard learned counsel for the parties and on giving my most anxious consideration to the matter, I find much substance in the argument urged by the learned counsel for the petitioners, Sri S.K. Mehrotra. It is not disputed that Devi Singh had held only 29 plots measuring 24 bighas, 4 biswas, on an annual rent of Rs. 5969. He died in the year 1891. Under Section 48 of the Oudh Rent Act, the heirs of Statutory tenants were entitled to retain occupation of the holding on the rent payable by the deceased tenant, for a period of 5 years from the date of death of the statutory tenant and to receive compensation under the provisions of the Act for improvements, if any, made on the holding by his predecessorininterest, but they were not entitled to renewal of tenancy. The landlord, after expiry of five years, could settle the land with the heirs of deceased tenant or with any one of them or with a stranger. The landlord, after expiry of five years, could settle the land with the heirs of deceased tenant or with any one of them or with a stranger. If fresh settlement of land was not made by the, landlord, and the heirs continued to remain in possession even after the expiry of said statutory period of five years and they were not ejected within three years thereof by the landlord, they were to be deemed to be statutory tenants as provided under subsection (18) of Section 3 of the Oudh Rent Act. This view finds support from the decision of the Oudh Chief Court in Jagmohan Ahir v. Ram Kishen Misir (1936 RD, page 400) wherein King CJ observed: 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 Section 53 (3), 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 Section 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. 12. It is, thus, to be seen whether the holding which initially belonged to the common ancestor Devi Singh, continued in the identical form with his descendants or not. Learned counsel had referred to second settlement entries of the year 1301F. in which separate holdings were recorded in the name of Mata Dihal Singh and his brother Ram Baran Singh and in their holdings some plots which belonged to Devi Singh were included. It is, thus, evident that some of the plots which belonged to Devi Singh's landholding, were resettled with Mata Dihal Singh and Ram Baran Singh and some plots were settled with the strangers. Devi Singh had held 29 plots out of which 19 plots appeared in the holding of Mata Dihal Singh recorded in 1301 F. and 5 plots are recorded in the holding of Ram Baran Singh. The five other plots of Devi Singh were apparently settled with some strangers. Devi Singh had held 29 plots out of which 19 plots appeared in the holding of Mata Dihal Singh recorded in 1301 F. and 5 plots are recorded in the holding of Ram Baran Singh. The five other plots of Devi Singh were apparently settled with some strangers. Thus it cannot be said that the land whish belonged to Devi Singh continued in the identical form in the hands of his sons, after his death. 13. During Oudh Rent Act, the landlord could settle the land with the heirs of the deceased tenant or with one of them or with any stranger. The legal heirs of the deceased tenant were entitled to remain in occupation for five years. They were not entitled as of a right, to renewal of tenancy as is provided under section 48 of the Oudh Rent Act. They could acquire statutory tenancy rights on the land being settled with them by the landlord or if they were not ejected within a period of three years after expiry of the statutory period of five, years daring which they could legally retain possession. Since some of the land which belonged to Devi Singh was apparently settled separately with Mata Dihal Singh and Ram Baran Singh and with strangers as well and, as such, it has to be treated to be a fresh settlement with them 'and it cannot be treated to be ancestral holding as it has not come down in an identical form, unbroken. 14. It is fairly well settled that in order to entitle a party to claim cotenancy rights in the holding on the ground of its being ancestral, the unbroken identity of the holding has got to be established throughoutthe period. If the identity has changed of the holding, the claim cannot succeed. This view has been expressed in several decisions of Board of Revenue and also of this court in the cases noted below: (1) 1943 RD, P. 567 (B R), Jodhia v. Bhikwa and others. (2) 1942 RD, P. 379 (BR), Hamid Ali v. Benares Bank & ors. (3) 1942 RD, P. 401 (B R), Mohd. Yasin v. Mohd. Shafi & ors. (4) 1945 RD, P. 122 (B R), Rajaram and ors. v. Narain Singh and others. (5) 1969 RD, P. 175 (B R), Abhai Narain v. Ram Manorath. (6) 1973 RD, P. 242 (B R), Aminuddin v. Kamruddin. (3) 1942 RD, P. 401 (B R), Mohd. Yasin v. Mohd. Shafi & ors. (4) 1945 RD, P. 122 (B R), Rajaram and ors. v. Narain Singh and others. (5) 1969 RD, P. 175 (B R), Abhai Narain v. Ram Manorath. (6) 1973 RD, P. 242 (B R), Aminuddin v. Kamruddin. (7) 1975 RD, P. 195 (B R), Ram Narain v. Buddhu. (8) 1963 RD, P. 87 (B R), Mahadeo Singh v. Sundar Kewat. (9) 1979 RD, P. 125 (B R), Balwanti v. Bhaiya Ram (10) 1983 (1) Lucknow Civil Decisions, 40 (HC) Jhagroo and another v. Deputy Director of Consolidation and others. 15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of cotenancy rights on the ground of land being ancestral, it is essential that the entire land of the holding of the common ancestor must have come down in the identical form and it must have remained unchanged and intact It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question, viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then in such event it cannot be said that there is a break in the identity of the holding in dispute. The slight change like elimination of certain plot or the increase or decrease in the area of certain plots, for the aforesaid reasons shown, would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of cotenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form and that it has not been subdivided or resettled with one or some of the heirs or with the strangers. But in order to uphold the claim of cotenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form and that it has not been subdivided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included in the present disputed holding, it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant. 16. Learned counsel for the Opposite parties had urged that in the present case there is no evidence regarding resettlement of the land with Mata Dihal Singh and, as such, the Opposite parties 1 to 3 have committed no error in giving cotenancy rights to Opposite parties 5 to 8 in those plots of the holding which initially belonged to Devi Singh. I am unable to agree with this contention. In second settlement of 1301 F. the present holding in dispute was recorded in the name of Mata Dihal Singh. Although it contained 19 plots which initially belonged to Devi Singh, but this holding consisted of 43 plots with an area of 43 bighas, 19 biswas and 16 biswansis on an annual rent of Rs. 11763. It is, thus, evident that 24 plots which did not belong to Devi Singh were also included in the holding which was settled with Mata Dihal Singh on aforesaid annual rent, by the then landlord. Similarly, in 1301 F. a separate holding is recorded in the name of Ram Baran Singh consisting of 19 plots out of which 5 plots belonged to Devi Singh. These two holdings were thus apparently settled by the landlord separately with these persons, Mata Dihal Singh and Ram Baran Singh. This entry is 90 years old and it is practically impossible to produce direct evidence on the question regarding settlement of land by the landlord with these persons. These two holdings were thus apparently settled by the landlord separately with these persons, Mata Dihal Singh and Ram Baran Singh. This entry is 90 years old and it is practically impossible to produce direct evidence on the question regarding settlement of land by the landlord with these persons. The entry itself affords the evidence regarding settlement with these persons, especially when all those plots which belonged to Devi Singh had not come down in identical form in none of these holdings, which came to be recorded separately in the name of Mata' Dihal Singh and Ram Baran Singh. In this view of the matter I do not find any substance in the aforesaid arguments of the learned counsel for the opposite parties. It is not disputed before me that the suits for ejectment and arrears of rentwere filed by the landlord against Mata Dihal Singh and also against Ram Baran Singh in respect of the landholding which s ere recorded in their names. Admittedly, Ram Baran Singh was ejected in the suit filed by the landlord for arrears of rent and ejectment, as he could not pay the arrears of rent outstanding against him. The grandfather of the petitioner, Mata Dihal Singh, was not ejected as rent was paid by him. Landlord had also filed suits for ejectment in respect of the holding in dispute against the petitioners. It is thus evident that the petitioners and their predecessors were always treated separate tenureholders of the land in dispute by the landlord. 17. Thus, in this view of the matter, I find that neither the disputed holding nor any portion thereof could be held to be ancestral holding coming down from the time of common ancestor Devi Singh as it has not come down in the identical form and as such, the opposite parties could not be declared to be cotenureholders by picking up certain plots from the holding in dispute and treating them to be ancestral on the ground that those initially belonged to Devi Singh. 18. Learned counsel for the opposite parties had contended that the opposite parties 1 to 3 cannot be said to have fallen in error in giving hare in those plots of the disputed holding which belonged to Devi Singh. I am unable to agree with this contention as well. 18. Learned counsel for the opposite parties had contended that the opposite parties 1 to 3 cannot be said to have fallen in error in giving hare in those plots of the disputed holding which belonged to Devi Singh. I am unable to agree with this contention as well. Where the holding of the common ancestor, as already observed above, has not come down intact in identical form, the claimant cannot be granted cotenancy rights only in some of the plots of the disputed holding merely on the ground that those initially belonged to the common ancestor. This question cropped up for consideration before Board of Revenue In Mohd. Yasin v. Mohd. Shafi and others (1942 RD 401) (BR) wherein Sathe, J. observed: The mere fact that land comprised in several holding belonged to a common ancestor is not enough to hold that it belongs to all the descendants of the common ancestor. One essential thing which is necessary for this is that the identity of the holding must have continued unbroken. If the land was divided between two branches of the family by a family arrangement and some holdings are entered in the name of ont branch or the other and some jointly, it will be inequitable to pick out some of the resultant holdings and say that they belong to both the branches as they belonged to one ancestor. 19. In Udal Singh v. Hardayal, (1973 RD 242) (BR), it has been observed: It was more than clear that the holding had not come in the identical form from the ancestor. The holding may have been acquired by the plaintiffs ancestor in 1872 or thereabouts and it appears to have continued in that form until 1924 or thereabouts, but then it changed hands and while part of the old plots were retained some additions and alterations were made and instead of occupancy a new hereditary tenure was created in favour of the new lessees. It is obviously, therefore, not possible to hop back to the year 1900, and then assume inspite of the lack of continuity that since the ancestors were cotenureholders in the year 1900, they should be regarded as cotenureholders in any new settlement made with some of the members of the family. It is obviously, therefore, not possible to hop back to the year 1900, and then assume inspite of the lack of continuity that since the ancestors were cotenureholders in the year 1900, they should be regarded as cotenureholders in any new settlement made with some of the members of the family. Similar view was expressed by Board of Revenue in Ram Narain v. Buddhu (1975 RD 195), wherein it was held: Where the original holding of the common ancestor has not come down in intact form the plaintiffs cannot claim cotenancy in respect of only one part of common ancestor's holding. 20 I have carefully gone through these decisions and in my opinion the Board of Revenue has taken a correct view on the point that in.order to uphold the claim of cotenancy rights on the ground that the holding in dispute is ancestral property, it is necessary that the holding should have come down intact in the identical form without any break and it ' would not be open to pick up few plots of the holding which initially belonged to common ancestor and declare them to be ancestral property, giving a share to the claimant on that ground. The claim of cotenancy rights cannot be upheld in respect of certain plots of the holding but the claim is to be considered and is to be accepted or rejected in toto in respect of the holding and not in respect of any portion thereof. In this view of the matter I find that the opposite parties 1 to 3 committed error in granting cotenancy rights to the opposite parties 5 to 8, in 36 plots of the disputed holding, merely on the ground that these plots initially belonged to Devi Singh and are, therefore, ancestral property. This view is absolutely erroneous and in view of what has been said above, the said plots in question. cannot be held to be ancestral holding so as to give cotenancy rights to the opposite parties 5 to 8 in those plots. In my opinion no cotenancy rights could be legally granted in respect of a part of the holding and, as such, the impugned orders passed by opposite parties 1 to 3, granting opposite parties 5 to 8 cotenancy rights in respect of the part of the holding (36 plots), cannot be legally sustained. 21. In my opinion no cotenancy rights could be legally granted in respect of a part of the holding and, as such, the impugned orders passed by opposite parties 1 to 3, granting opposite parties 5 to 8 cotenancy rights in respect of the part of the holding (36 plots), cannot be legally sustained. 21. Learned counsel for the opposite parties, Sri Hargur Charan, however, urged that even if the claim of the opposite parties 5 to 8 cannot be sustained on the ground that the disputed holding is ancestral, yet their claim is sustainable on the ground that the entire land of the disputed Khata No. 36 is joint family property and the name of Mata Dihal Singh was recorded in the representative capacity, as he was head and Karta of the joint family. His further contention was that even if it be held that the holding in dispute consisting of 84 plots with an area of 44 bighas, 9 biswas, 14 biswansis was settled afresh by the landlord with Mata Dihal Singh, the same would be deemed to be joint family property as at the time of acquisition he was head and Karta of the family being elder brother. Learned counsel pointed out, that the opposite parties 1 to 3 have recorded a finding to he effect that at the time of second settlement in the year 1301 F. both these brothers Mata Dihal Singh and Ram Baran Singh formed joint family and on the basis of this finding learned counsel urged that even if land of the disputed holding was acquired by Mata Dihal Singh, but the same would be treated to be joint family property and the opposite parties 5 to 8 would get half share in all the plots of the disputed holding Khata No. 36. I am unable to agree with this contention as well. 22. It is well settled that the creation of tenancy in respect of agricultural land is a matter of contract between the landlord and the tenant. Even in the joint Hindu family, a member of the joint family could acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity and for the benefit of the family, it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members. Even a Karta of joint Hindu family can acquire land in his name for his own benefit and it cannot be treated to be joint family property merely because he happens to be Karta of the family at the time of the alleged acquisition of the property. It has to be positively proved that when the land was acquired by the Karta of the joint family he had acquired it in the representative capacity, for the entire body of coparceners and it is treated as such by the members of the family. 23. It appears So be fairly well settled that when joint family is possessed of sufficient nucleus and the Head or Karta of the family had, as a matter of fact, in his possession Joint family funds, while acquiring certain property in his own name, the onus would lie on him to prove that it was his selfacquired property and that it was not acquired with the aid or assistance of the joint family funds. But even this rule cannot be always pressed in service in the matter relating to acquisition of agricultural tenancy lands because no premium (Najrana) can be legally charged by the landlord while letting the land to the tenant. It, therefore, cannot be assumed that in every case while obtaining lease of agricultural land the tenant must have paid some premium (Najrana) to the landlord and that too room the joint family funds. In Bhagirathi Devi Kumar Rani Saheba v. Agricultural Income Tax Revision Board (1910 RD 365), while considering this question, the Division Bench of this Court held: No doubt a presumption arises in Hindu law that property standing in the name of a member of the Hindu undivided family must be presumed to have been acquired from Hindu undivided family funds, and, therefore, to be Hindu undivided family property, where the member of the family does not possess sufficient funds of his own for the purposes of acquiring the property. But in a case where acquisition of the property does not require any expenditure of funds, the presumption cannot be raised. In the instant case, no funds were required because payment of Nazrana for the acquisition of tenancy lands had been declared illegal by law. 24. But in a case where acquisition of the property does not require any expenditure of funds, the presumption cannot be raised. In the instant case, no funds were required because payment of Nazrana for the acquisition of tenancy lands had been declared illegal by law. 24. Thus in this view of the matter and also in the absence of any positive evidence, I find it difficult to assume that Mata Dihal Singh while acquired land of the disputed holding had paid some premium to the landlord and that too from the joint family funds. In the present case it was neither asserted nor proved that the land m dispute was acquired by Mata Dihal Singh with the aid or assistance of the joint family funds, and, as such, simply Because the land in dispute was recorded in the name of Mata Dihal Singh it cannot be assumed to be joint family property, because even in a joint family any member or even a Karta of the joint family can acquire land in his name for his own benefit. It has to be shown positively that it was either acquired in the representative capacity by the Karta of the joint family or that it was blended as joint family property and was treated as such and that all the members of the joint family were in possession over it. But where no such case was set up nor established, the claimants cannot get cotenancy rights merely because the disputed holding is recorded in the name of the Karta of the joint family or in the name of any member of the joint family. The claim of cotenancy rights in such land by unrecorded member of the joint family can only be accepted if it is established that the land in dispute was acquired in the representative capacity and was blended as joint family property and was treated as such. The burden of proof that the land was acquired by the recorded tenureholder in the representative capacity, lies heavily on the person who asserts that it was acquired as such. 25. The burden of proof that the land was acquired by the recorded tenureholder in the representative capacity, lies heavily on the person who asserts that it was acquired as such. 25. In the present case it is very well evident that both Mata Diha Singh and his brother Ram Baran Singh had separately acquired land and their names are recorded as separate tenureholders on different holding in second settlement of 1301 F. So, even if they formed joint family at that time, the land recorded in their names could not be treated to be joint family property because it is well settled that any member of the joint family or even a Karta can acquire land in his own name for his own benefit and it will not become a joint family property merely because he happens to be a member of the joint family at the time of acquisition of that land. (See Satto and others v. Deputy Director of Consolidation and others, WP No. 2417 of 1979, decided by me on 15101981). Similar view was expressed in 1977 AWC Page 418. Dildar Husain v. Ali Husain and others, wherein it was observed that there could be no bar to the acquisition of land by an individual even though he might be joint in estate with his other brothers but by virtue of this fact they could not automatically become cotenants with that individual who had obtained acquisition in individual name. 26. In view of the above, I am unable to accept the contention of the learned counsel for the opposite parties that the land which was recorded in the name of Mata Dihal Singh was acquired in the representative capacity or that it was a joint family property. Ram Baran Singh had also separately acquired the land which was recorded in his name in the second settlement of 1301 F. In these circumstances it cannot be said that Ram Dihal Singh acted in representative capacity when he acquired land which was recorded in his name in the second settlement of 1301 F. If he was acting as Karta of the joint family there was no occasion for separate acquisition of land by Ram Baran Singh and recording of his name on a separate holding in the second settlement. Thus, even if it be held that both these brothers formed joint family at the time of the second settlement, that holding in dispute cannot be held to be joint family property so as to give a share to the opposite parties 5 to 8 on that ground. It is well settled that where a member of the joint family has been recorded as a sole tenant even during the last settlement and there is nothing to show that the holding was leased out to him or to his predecessorininterest in the representative capacity, there would be a presumption, though rebuttable, that the settlement entry is correct and the other members of the family cannot claim to be cotenants merely on the ground that they were members of the joint family. 27. The acquisition of land in the representative capacity either by the Karta or a member of joint family can be established by the evidence led directly to establish the fact that the landlord had settled the land with him in the representative capacity for all the other members of the family as well and that all the members of the joint family came into possession over the land which was blended and treated as joint family property. The evidence establishing the fact about joint possession of all the members of the joint family, on the land of holding till it remained undivided or over specific plots of the holding by members of the family to the extent of their respective shares, by way of mutual partition in the event of separation in the family and the payment of land revenue by them either directly to landlord or through the recorded person, would, no doubt, be very material circumstance and a piece of admissible corroborative evidence to establish the fact regarding acquisition of land in the representative capacity by the recorded person. It may, however, be expressed to clarify that merely by being in possession over certain plots would alone be not enough to establish that the land was acquired by the recorded tenant in the representative capacity because no amount of common living and the use and enjoyment of the land jointly or severally would make the claimant a cosharer in the holding or for treating it to be joint family property acquired in representative capacity. It has to be established by cogent evidence that the land was, in fact, acquired by the recorded person as Karta in the representative capacity for the benefit of all the members of the joint family and it was blended and always treated as joint family property by the recorded persons without any objection by the landlord to it and that the claimants have remained in possession over the land of the holding to the extent of their share in it and paid its rent. It be also shown that the possession of claimants over the land of the disputed holding was in their own right and not by way of any arrangement as licensee on behalf of the recorded tenant or for any other consideration on his behalf. 28. In the present case I find that the opposite parties 5 to 8 have not been able to prove their possession and their claim regarding cotenancy has been upheld on the basis of constructive possession which, in my opinion, is altogether erroneous view. The doctrine of possession of one cotenant as that of all cotenants, can only be invoked where cotenancy is either admitted or established. In the present case the petitioners have seriously refuted the claim regarding cotenancy rights asserted by opposite parties 5 to 8 and have also failed to establish it on merits, as already observed above. Thus the impugned orders passed by opposite parties 1 to 3 cannot be sustained and deserve to be quashed. 29. No other point was pressed before me. 30. In the result, the writ petition No. 1712 of 1978 filed by Jagdamba Singh and another is allowed and the impugned Borders dated 13d 1978 passed by the Deputy Director of Consolidation, Faizabad Order dated 5.8.1977 passed by the Assistant Settlement Officer, Consolidation, Faizabad and the order dated 22.2.1975 passed by the Consolidation Officer, Circle Bhiyaon, Tahsil Akbarpur, District Faizabad are quashed and the basic year entry in the names of the petitioners Jagdamba SingKand Ran Bahadur Singh over Khata No. 36 is maintained. The writ petition No 2371 of 1978 filed by Tej Bahadur Singh and others, is dismissed. No order as to costs. (Petition allowed)