JUDGMENT B.L. Yadav, J. - This petition Under Article 226 of the Constitution has been filed against the orders of the consolidation authorities. 2. The facts are few and simple. In respect of Khata No. 43 situate in village Mamarkha and in respect of Khata Nos. 76 and 345 in village Jargon, the Petitioners filed objection claiming co-tenancy rights against the Respondent Nos. 4 and 5 on the basis that the plots were ancestral acquisition and their ancestors were co-tenants from the commencement of the tenancy and since after the death of their ancestor Banshraj, Petitioners Nos. 1 and 2 are in possession. But by mistake their names were not entered in the revenue papers, hence the names of the Petitioners Nos. 1 and 2 may be entered. 3. The case of the Petitioners Nos. 1 and 2 in these khatas was contested by the recorded tenure-holders, namely, Respondents Nos. 4 and 5. It was alleged by them that they were sole tenants and the Petitioners Nos. 1 and 2 were not the co-tenants. 4. In respect of Khata Nos. 447, 448, 444, 446 and 443 etc. the Respondent No. 6 Satya Marain alias Devi Prasad riled an objection claiming co-tenancy rights on the basis that his father Sheo Murat died in 1943 and pre-deceased Banshraj, the grandfather and after the death of Banshraj the name of his uncles Beni Prasad and Shobhnath, Petitioners Nos. 1 and 2 alone were entered. Hence they were also entitled to succeed in view of Section 35 U.P. Tenancy Act, 1939 even after the death of his father. 5. The Petitioners Nos. 1 and 2 contested the case of the Respondent No. 6 Satya Narain alias Devi Prasad and alleged that he was not co-tenant in as much, as their father has two wives. From the first wife Sheo Murat, the father of Respondent No. 6 was born whereas from the second wife Petitioners Nos. 1 and 2, namely, Beni Prasad and Shobhanath were born and as Banshraj died in 1943 and Sheo Murat having pre-deceased him, hence in view of the proviso to Section 35 of the U.P. Tenancy Act, 1939, as the father of the Respondent No. 6 has pre-deceased, hence the Respondent No. 6 was not entitled to succeed. 6. The Consolidation Officer by the Order dated 29.12.1971 decided the case partly against the Petitioners, the parties preferred appeals. 6. The Consolidation Officer by the Order dated 29.12.1971 decided the case partly against the Petitioners, the parties preferred appeals. The Assistant Settlement Officer of Consolidation by his Order dated 20.09.1972 substantially maintained the order of the Consolidation Officer. Revisions were filed by the Petitioners as their claim of co-tenancy was dismissed in respect of Khata Nos. 43, 76 and 345 and further the claim of Respondent No. 6 for the co-tenancy along with the Petitioners Nos. 1 and 2 in respect of Khata Nos. 447, 448, 444, 446 and 443 etc. was allowed. The Deputy Director of Consolidation by his order dated 13.11.1975 dismissed the revision filed by the Petitioners. These orders have been challenged by the present petition. 7. Sri Radhey Shyam appearing for the Petitioners urged that in respect of khata Nos. 43, 76 and 345, the Petitioners Nos. 1 and 2 were co-tenants and their ancestor Banshraj was also entered over these khatas in 1320 Fails along with Ramdeo and Mata Dehal, the descendants of Ram Bharose. The pedigree has been given in the order of the Deputy Director of Consolidation. The name of Banshraj continued till 1333 Fails and later on it appears that it disappeared without any order of any authority or court and the plots maintained their identity. There being an arbitration proceeding between the parties to which Banshraj father of the Petitioners Nos. 1 and 2 was a party and the award was dated 13.08.1907 and even though it was not made the rule of the Court it cannot be ignored particularly when it was carried out in revenue papers and acted upon by the parties. The consolidation authorities erred in rejecting claim of Petitioners Nos. 1 and 2. Reliance was placed on Kashinathsa Yamosa Kabadi, etc. Vs. Narsingsa Bhaskarsa Kabadi, etc., AIR 1961 SC 1077 and Satish Kumar v. Surendrer Kumar AIR 1970 SC 883. Further it was urged that it was not the case of the contesting Respondent Nos. 4 and 5 etc. that they acquired plots by any separate source of earning nor any specific mode of acquisition by their ancestors has been given nor they have set up a case of ouster against the Petitioners and possession of one co-tenant was possession of all and unless plea of ouster was set up and proved the rights of Petitioners as co-tenants cannot be denied. The consolidation authorities erred in holding otherwise. 8. Sri Gyan Prakash appearing for the Respondents Nos. 4 and 5 urged that the nature of the tenancy was changed and it did not come in its identical form and after 1333 Fails the name of Banshraj disappeared and the Petitioners Nos. 1 and 2 did not care to get their names entered in the revenue papers hence they cannot acquire co-tenancy rights. Under the facts and circumstances plea of ouster would be deemed to have been alleged and proved as was apparent from the absence of the names of Banshraj or his descendants. Unless the award was made a rule of Court it has no value in the eyes of law. 9. After considering the arguments in respect of these three Khatas I am of the view that the submissions made by the learned Counsel for the Petitioners Nos. 1 and 2 are not without force. It is evident from the discussion of the evidence made by the Deputy Director of Consolidation (Para 3 of his order) that since 1320 Fasli Banshraj, father of Petitioners Nos. 1 and 2, was recorded along with Ramdeo father of Respondent Nos. 4 and 5 and Mata Dehal ancestor on other Respondents and his name continued till 1333 Fails but thereafter without any order of any authority or court, the same abruptly disappeared. It was not the case of the contesting Respondents Nos. 4 and 5, that any fresh settlement of tenancy was made with them nor it was their case that the Petitioners' father was ejected in any proceedings and thereafter fresh tenancy was created in their favor, under these circumstances, even though there is some change in the area of original holding oriented but that itself would not lead to an irresistible conclusion that the original holding itself was changed and fresh tenancy was created in favor of the Respondents or their ancestor. There is another aspect of the matter. The variation in area, rental or duration of tenancy is taken to be an evidence of creation of new or different tenancy only in these cases where a positive case is taken that the old tenancy changed and fresh tenancy was created and some other evidence is led to prove it. In the instant case no such plea was taken nor any other evidence was led by Respondents Nos. 4 and 5. In the instant case no such plea was taken nor any other evidence was led by Respondents Nos. 4 and 5. 1 am, therefore, of the view that just some variation in rental area or duration of tenancy alone cannot prove creation of new, different or fresh tenancy. There should have been a positive case taken by the contesting Respondents as to how the tenancy of Banshraj came to an end. u/s 45 U.P. Tenancy Act, 1939 it has been provided that how a tenancy can come to an end. There are number of modes provided. First is that the tenant dies, leaving no heir. Second is that the right of the tenant comes to an end as the land has been sold in the execution of the decree and the third is by surrender or by abandonment or the land has been acquired under the Land Acquisition Act or by merger or the tenant has been ejected and his claim has become time barred. 10. Similar modes for the extinction of the tenancy are to be found u/s 35 of the Agra Tenancy Act, 1926. In view of the aforesaid modes of extinction of tenancy it was not proved by the contesting Respondents as to how the tenancy of Banshraj came to an end. It was also not pleaded by Respondent that he was ever ejected in any proceeding nor it was alleged or proved as to how a fresh tenancy was created in the name of ancestor of contesting Respondents. Just on the basis of some variation in the area and the rental or disappearance of entries in the name of Banshraj, I am not prepared to hold that the old tenancy in respect of these khatas came to an end and a fresh tenancy was created in the name on the ancestor of the Respondent Nos. 4 and 5. 11. In Kashinathsa Yamosa Kabadi v. Narsingha Bhaskarsa Kabadi AIR 1961 SC 77, relied upon by the learned Counsel for the Petitioners, it was held that where an award was made in an arbitration out of court and was accepted by the parties and acted upon even though it may not have been made a rule of Court, nevertheless it is binding on the parties. Similarly in Satish Kumar v. Surender Kumar AIR 1970 SC 883, relied upon by the petitioner, it was held that the award given in an arbitration without intervention of the Court, even though the award may not have been make the rule of court, nevertheless it can not be taken to be a waste paper but it is admissible in evidence and is final and binding on the parties. 12. In the instant case there was nothing on the record to indicate that the award required registration. I am in respectful agreement with the ratio in these two cases (supra; and am of the opinion that consolidation authorities erred in not relying upon the award on the grounds that it was not made rule of the court. 13. As Banshraj father of the Petitioners Nos. 1 and 2 was recorded as cotenant since 1320 Fails till 1333 Fails and thereafter disappeared without order of any authority or court, hence right of Banshraj as co-tenant could not come to an end and after his death the Petitioners, Nos. 1 and 2 became co-tenants along with Respondent Nos. 4 and 5 in these three khatas and orders of the consolidation authorities in respect of these khatas can not be sustained. 14. As regards Khata Nos. 447, 448, 444, 446 and 443 etc. it was urged on behalf of Petitioners that Respondent No. 6 did not file any objection in proceedings u/s 9(2) or u/s 9A(2), hence without any objection his case for co-tenancy could not be considered in view of Section 11A. It was further urged that Banshraj has two wives. From first wife Sheo Murat, the father of Satya Narain, Respondent No. 6 was born whereas from second wife Beni Prasad and Shobh Nath, Petitioners Nos. 1 and 2 were born, Sheo Murat, father of Respondent No. 6 died during the life time of Banshraj, the recorded tenant. Hence after the death of Sheo Murat, Banshraj died in 1943 when U.P. Tenancy Act 1939 was in force and in view of Section 35 read with its proviso it was clear that as the father of Respondent No. 6 Sheo Murat had predeceased hence Respondent was not entitle to inherit as by the time when succession opened Beni Prasad and Shobh Nath, uncle of the Respondent No. 6 were alive between him and deceased. 15. 15. Sri Amar Nath Mishra appearing for the Respondent No. 6 urged that the proviso to Section 35 of the U.P. Tenancy Act, 1939, has not been correctly interpreted on behalf of the Petitioners, inasmuch as the father of the response dent No. 6 was already dead and the Petitioners Nos. 1 and 2 being from the second wife of Banshraj, can not be deemed to be between Respondent No. 6 and Banshraj rather between Respondent No. 6 Satya Narain and the last male tenant Banshraj, only Sheo Murat (the father of Respondent No. 6) if would have been alive the Respondent No. 6 would not have succeeded. As regards the second submission on behalf of Petitioners it was urged by him that u/s 9A(1) of the Act the Assistant Consolidation Officer has to make an enquiry when objections were filed in view of Section 9(2) of the Act whereas 9A(2) provides that in case no objections are filed, in that event also the Assistant Consolidation Officer shall make an enquiry and in case he comes to the conclusion that there was some mistake in the entries he would refer the matter to the Consolidation Officer for being disposed of in the manner prescribed. In the instant case the Consolidation Officer has made enquiries to ascertain the nature of entries and referred the matter to the Consolidation Officer who has decided it hence mere absence of objection would not non suit him. He relied on Qutub Ali v. Suraj Lai 1961 RD 187, Jainulabdin v. Deputy Director of Consolidation, 1974 RD (Suppl) 162 and Ram Pal Singh v. Deputy Director of Consolidation Meerut, 1978 AWC 58 . 16. In respect of the submission on behalf of Petitioner that Respondent No. 6 did not file any objection claiming co-tenancy rights u/s 9 or 9A of the Act, hence Section 11A would operate as a bar and right of co tenancy, can not be considered. 16. In respect of the submission on behalf of Petitioner that Respondent No. 6 did not file any objection claiming co-tenancy rights u/s 9 or 9A of the Act, hence Section 11A would operate as a bar and right of co tenancy, can not be considered. Suffice it to say that if Sections 9, 9A and 11A are read together the only possible conclusion is that even in these cases where no objection has been filed, the Assistant Consolidation Officer would make an enquiry and he would refer the matter to the Consolidation Officer and he shall decide the same in accordance within the procedure prescribed particularly in view of Rule 25A(2), Rule 26 and Rule 27 of the Rules framed under the U.P. Consolidation of Holdings Act. In the instant case even though the Respondent No. 6 may not have filed any objection but as the matter was referred by the Assistant Consolidation Officer, the Consolidation Officer has been given jurisdiction to decide the case and if that has been decided by him, the technical objection that no objection was filed by a co-tenant, can not prevail. A bare reading of Section A makes it crystal clear that this section enacts a rule of estoppels and res-.iudicata for subsequent stages of the consolidation proceedings. In case no objection was filed u/s 9 etc. at that stage, but in the present case effect at subsequent stage was not considered rather it was the same stage of Sections 9 and 9-A, the bar contemplated by Section 11A would not accordingly apply. Further from perusal of the order of the Consolidation Officer, it transpires that issue Nos. 13, 16, 21, 31 and 32 etc. were framed in respect of claim of co-tenancy of Respondent No. 6. It means either objection would have been filed by Respondent No. 6 or on the report of Assistant Consolidation Officer, these issues would have been framed. 17. In Jainulabdin v. Deputy Director of Consolidation (supra) this Court held that even a co-tenant may not have filed any objection but his claim can be decided if he was made a party. Further in Ram Pal Singh v. Deputy Director of Consolidation, Meerut (supra) it was held that the mere non filing of objection does not debar a person from contesting the claim advanced by the Other side. Further in Ram Pal Singh v. Deputy Director of Consolidation, Meerut (supra) it was held that the mere non filing of objection does not debar a person from contesting the claim advanced by the Other side. I am in complete agreement with the view taken in these cases and I am of the opinion that even though Respondent No. 6 who was a co-tenant, might not have filed an objection but still a reference was made by the Assistant Consolidation Officer to the Consolidation Officer his claim can be still decided by the consolidation authorities. 18. As regards the second submission of Sri Radhey Shyam that in view of the proviso to Section 35 of the U.P. Tenancy Act, 1939 as Petitioners Nos. 1 and 2 were alive when succession opened, after the death of Banshraj in 1943, Respondent No. 6 Satya Narain alias Devi Prasad who was the son of Sheo Murat, the pre-deceased son of Banshraj, hence Respondent No. 6 can have no right of succession as his father was then not alive and the Petitioners Nos. 1 and 2 being his uncle were alive, it is useful to set out the relevant statutory provisions of Section 35 as follows: 35. Succession to a male tenant When a male tenant, other than a tenant mentioned in Section 34 dies, interest in his holding shall devolve in accordance with the order of succession given below (a) male lineal descendant in the male line of descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive; 19. A bare reading of this provision makes it clear that if no male descendant between the last tenant and the person succeeding is alive the person so succeeding, can not have a right of succession. But in the instant case between the Respondent No. 6 and Banshraj deceased, Sheo Murat, the father of Respondent No. 6 was the person who would have obstructed the inheritance of Respondent No. 6 in essay Sheo Murat would have alive but as Sheo Murat was dead hence the Respondent No. 6 would succeed as grand son of Banshraj as between him (Respondent No. 6) and deceased tenant (Banshraj) there was no body alive. Further it can not be the intention of the legislature to deprive a grand son from inheritance in case his father predeceased his grand father. I accordingly do not find any merit in this submission of the learned Counsel for the Petitioners. 20. In the result the orders of the consolidation authorities are manifestly erroneous as regards plot in Khata No. 43 in village Monarchal and Khata Nos. 76 and 345 of village Jargons are concerned. The Petitioners Nos. 1 and 2 are held to be co-tenants along with Respondent Nos. 4 and 5. The orders of the consolidation authorities are accordingly quashed to this extent whereas in respect of the remaining khatas Nos. 447, 448, 444, 446 and 443 etc. the orders of the consolidation authorities are perfectly correct. 21. In the result the petition succeeds in part and the impugned orders of the consolidation authorities are quashed to the extent--they are in respect of Khata Nos. 43, 76 and 345. The Petitioners Nos. 1 and 2 are held to be the co-tenants to the extent of 1/2 share and the remaining 1/2 share would be of the Respondents Nos. 4 and 5. In respect of remaining hates the writ petition fails and is dismissed. In view of the partial success and failure of the writ petition, there shall be no orders as to costs.