JUDGMENT M.M. Gopal, Member. - This is a second appeal against the judgment dated 2-5-1981 of the learned Additional Commissioner by which he allowed the appeal and held 1/15th share of the plaintiff in whole of the land. The trial court by its order dated 18-9-1972 decreed the suit in respect of bhumidhari land in between the plaintiff and his brothers defendants No. 1 to 4 i.e. Nirbhai, Ram Dass, Shyam Lal and Pragi Lal. In respect of other lands the plaintiff's share was held 1/15th and the defendants No. 5 and 6 and 7 Roop Lal, Surat and Khuman have also been allotted share. 2. Heard the learned counsels for the parties and have also seen the relevant documents. 3. The facts of the case are that a suit under Section 176 of the U.P. Act I of 1951 was filed by Bhaiya Lal against Nirbhai and others. The suit was in respect of bhumidhari land as well as sirdari land and it was claimed by the plaintiff that he had 1/15th share in respect of sirdari plots along with the other co-sharers, i, e., defendants No. 5 to 7 who represented the branch of Pyare Lal and Brij Lal (brothers of his father Dulley). 4. So far as the bhumidhari land was concerned, it was acquired by his father Dulley and hence only the plaintiff and his brothers defendants No. 1 to 4 have got share in that land and other defendants (i.e. , who represented the branch of Brij Lal and Pyare Lal) had no share. 5. The trial court has admitted the case of the plaintiff and debarred by the defendants No. 5 to 7 Roop Lal, Surat and Khuman having any share in the bhumidhari land. It is also held that all the defendants had share in the sirdari land and has specified the share of the parties. In other words, the trial court has given ?rd share to Pyare Lal or his branch, ?rd share to Brij Lal or his branch, ?rd share to Dulley or his branch all these three arc the sons of Durga). 6. The trial court has held the sirdari land as the ancestral property and allotted the shares of the parties accordingly. In other words, the trial court has given ?rd share to Pyare Lal or his branch, ?rd share to Brij Lal or his branch, ?rd share to Dulley or his branch all these three arc the sons of Durga). 6. The trial court has held the sirdari land as the ancestral property and allotted the shares of the parties accordingly. But it has held bhumidhari land as the property of Dulley hence only the sons of Dulley were allotted the shares and other branch was debarred from any share in the land. 7. The appeal was filed by the branch of other sons of Durga (i.e., Pyare Lal and Brij Lal represented through Roop Lal, Surat and Khuman) and that appeal was allowed and these appellants were held to have share in bhumidhari lands along with the plaintiff and others. The lower appellate court had held that from the extract of khatauni 1359 Fasli, it is clear that the plaintiff and defendants are recorded over the land in suit and the period is of 17-18 years, hence it cannot be said that it was the self acquisition of Dulley. It specifically held that there was re-settlement in 1382 Fasli in between the plaintiff and defendants. This finding of the lower appellate court has not been challenged by any party before me. That means the plaintiffs and defendants are recorded over the bhumidhari land on the basis of re-settlement. In other words, the question of ancestral property has not been accepted by the lower appellate court. It has accepted the theory of re-settlement. 8. But strangely enough the allotment of the share has been done according to the sirdari plots which was ancestral property. 9. When the land is ancestral property the shares are divided according to the branches of the ancestors and it is not divided per capita but in the case of resettlement the shares are divided according to per capita i.e., persons who are recorded shall get the equal shares. The right is not acquired through their ancestors but there is resettlement between the parties. From the perusal of the extract of khatauni 1359 Fasli it is clear that nine persons are recorded. One of them Phuddi is not in existence and both the parties have conceded this point. Thus there are only eight persons and these eight persons are plaintiff and seven defendants. From the perusal of the extract of khatauni 1359 Fasli it is clear that nine persons are recorded. One of them Phuddi is not in existence and both the parties have conceded this point. Thus there are only eight persons and these eight persons are plaintiff and seven defendants. Thus each party shall get ?th share over the bhumidhari land ; and so far as the question of share in sirdari land is concerned, it is confirmed by both the courts and no party has challenged the same. 10. The lower appellate court has thus committed an illegality apparent on the face of it while allotting the shares of the defendant parties. I, therefore, partly allow the appeal and amend the judgment of the lower appellate court to this extent that the shares of the parties shall be ?th each over bhumidhari land in suit. 11. Under the circumstances of the parties the parties shall bear their own costs.