JUDGMENT Brijesh Kumar, Member. - These are two connected second appeals against the judgment and decree dated 2-8-1975 passed by Sri R.N. Misra, Additional Commissioner, Varanasi Division, Varanasi, reversing the order of Sri I.B. Singh, Judicial Officer (Revenue), passed in a suit under Section 229-B/176 of the U.P. Zamindari Abolition & Land Reforms Act. Appeal no. 434 of 1974-75 has been filed by Jhoori and Mankoo and Second Appeal No. 49 of 1975-76 has been filed by Moti. 2. Briefly stated, the facts of the case are that Bhopal filed a suit under Sections 229-B/176 of the Act against Jhoori, Nankoo, Moti and Kali Charan and five others including Gaon Sabha and State of U.P. in respect of plots shown in schedules A & B given at the foot of the plaint. The plaintiffs case is that the plots of schedule A belong to Sheo Baran s/o Shiv Ghulam who was the maternal uncle of the plaintiff and defendant first set. Sheo Baran died issue less. The plaintiff and defendant first set used to live with him and assisted him in cultivation of the land. Upon the death of Sheo Baran, the plaintiff and defendant first set succeeded him and came in possession of the land in dispute jointly. As regards the land shown in schedule B the plaintiff s case is that the land is ancestral. It was recorded in the name of Bideshi, the common ancestor of the, plaintiff and the defendants. All of them were members of Hindu Joint family and after the death of Bideshi his three sons Gokul Kali Charan and Bhopal lived and carried on cultivation Jointly. Gokul being the ledest amongst all the brothers was recorded against the land in dispute in representative capacity. The cause of action arose because of the sole entry recorded in favour of the defendant Nos. 1 and 2 after the death of Gokul. The practical difficulty arose for want of the entry in favour of the plaintiff on the determination of his share. On this basis the plaintiff has claimed ? share in the land in dispute. The learned trial court dismissed the suit on 20-10-1973. Aggrieved by this order, the plaintiff preferred first appeal before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal on 2-8-1975 and quashed the judgment and decree of the learned trial court. 3. On this basis the plaintiff has claimed ? share in the land in dispute. The learned trial court dismissed the suit on 20-10-1973. Aggrieved by this order, the plaintiff preferred first appeal before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal on 2-8-1975 and quashed the judgment and decree of the learned trial court. 3. I have, heard the learned counsel for parties. Sri Hari Shanker, learned counsel for the appellant has contended that under law, Sm. Sahodara, sister of Sheo Baran, could not acquire the property shown in schedule A. As regards the land shown in Schedule B, it was recorded in the names of Chhote, Sitlu Jhingur, Bideshi and others in the year 1308 F. The total area of the land was 58 acres. In the year 1334 F. Gokul was found recorded against 3.61 acres only of plot numbers 456/120 and 426/170. The tenancy, the learned counsel argued, actually begins from 1334 F and not from 1308 F. Gokul is, therefore, the sole tenant of the plots shown in schedule B. Relying on Jagdamba Singh v. D.D.C. reported in 1985 RD 281, the learned counsel has argued that if the entire land does not come down in identical form, a fraction of the land cannot be held to be the ancestral holding. Referring to the judgment dated 16-2-1961 given by the learned Additional Commissioner in Appeal No. 14, the learned counsel has contended that Kali Charan had filed a suit was dismissed. This judgment is binding on those who were just watching the proceedings Since Kali, Charan had lost the case, the Marfat entry is irrelevant and does not give him any right of co-tenancy. The rent receipts are also not of any help because they do not relate to the land in suit. Oral evidence the learned counsel has argued, is also irrelevant because who could dwell upon the factum of possession given 50 years back. Coming to the land shown in Schedule A, the learned counsel has contended that when Sheo Baran died the plaintiff was a minor and only the defendant Gokul was major. He was given the land in lieu of the services rendered by him to Sheo Baran. Besides this, the plaintiff was out into Calcutta for the last 40 years. The entries according to the learned counsel, are also in favour of Gokul. He was given the land in lieu of the services rendered by him to Sheo Baran. Besides this, the plaintiff was out into Calcutta for the last 40 years. The entries according to the learned counsel, are also in favour of Gokul. He was recorded against plot number 165 in the year 1356 F with duration of 56 years. Similarly, he was recorded in 1334 F with duration 4. Sri R.N. Singh, learned counsel for Kalui and Moti, appellants has contended that the learned Additional Commissioner has allowed the appeal preferred by Bhopal and giving him ? share in the land in dispute. But he did not determine the share of Moti and Kalui. Another contention is that Gokul has filed a suit under Section 229-B in respect of the land shown in Schedule B and not for the land of Schedule A. There should be, therefore, no res judicata for the land shown in Schedule R against Moti s/o Kali Charan and if the property is held to be ancestral, Moti is entitled to ? share. Assailing the findings of the learned Additional Commissioner, the learned counsel has contended that the learned court below has committed an error in determining the share in respect of the land shown in Schedule A. In support of his argument, he has placed reliance on 1967 RD 194. The last contention made by him is that the findings given by the learned Additional Commissioner are findings of fact which cannot be disturbed in second appeal. Reliance has been placed on AIR 1953 Alld. 42, 1932 Oudh 144, AIR 1934 Oudh 177, 1973 AIR Punjab page 71 and AIR 1976 SC 2547 . 5. Sri B.B. Paul, Advocate has appeared for the plaintiff-respondent. His contention is that 15 persons were recorded against the land shown in Schedule B covering 90 bighas in 1308 F. The heading of the khatauni covers the land of Schedule B in 1334 F with duration of 56 years. The land was partitioned in 1334 F. In the year 1356 F the duration is given as 23 years. Citing the admission made by Gokul on 27-5-1967 to the effect that he was the head of the family, the learned counsel has contented that admission is the best piece of evidence. The land was partitioned in 1334 F. In the year 1356 F the duration is given as 23 years. Citing the admission made by Gokul on 27-5-1967 to the effect that he was the head of the family, the learned counsel has contented that admission is the best piece of evidence. In support of his argument, he has placed reliance on AIR 1960 SC 100 , AIR 1981 SC 2085 , 1968 RD 396, 1978 RD 25 : 1984 RD Summary Cases 64, 1952 ALJ 301 : 1978 RD 247. The learned counsel has further argued that the identity of the land was maintained throughout. In the year 1308 F, the total area of the land was 58.28 acres. In the year 1334 F, each share-holder was allotted 3.61 acres land, bringing the total area of the land to 58.28 acres. According to him, the witnesses have also proved the identity of the land. Reliance has been placed on 1950 RD 19, 1947 RD 129 and 1981 RD 25. As regards the suits filed by Gokul against Kali Charan, the learned counsel has contended that Bhopal was not a party to that suit and so the judgment against Kali Charan is not binding on Bhopal. Replying to the contentions made by the learned counsel for the appellant regarding the rent receipts, the learned counsel has argued that the plots are never mentioned in the rent receipts. As regards the partition of the land shown in Schedule B, the learned counsel has contended that Bideshi died on 9-12-1927. This date corresponds to 1335 F and so the partition took place sometimes in 1349 F. 6. As regards the property shown in Schedule A, Sri B.B. Paul, the learned counsel for the respondent, has contended that this property shall be governed according to personal law and the property of maternal uncle can be acquired by his sister and maternal nephews. He has quoted Mullas Hindu Law page 115 and relied on 1932 ILR 594 and 1961 RD 9. Replying to the arguments advanced by the learned counsel for the appellant that Smt. Sahodara sister of Sheo Baran, did not inherit the property, the learned counsel has argued that sisters sons inherited the property in lieu of the services rendered to their maternal uncle and the entire family and not only one member of the family shall inherit the property. 7. 7. I have given a careful thought to the submissions made before me and have also perused the records. The crux of the case is whether the plaintiff and defendants are co-tenants. The land in dispute has been categorised in Schedules A and B. I would first take up the land shown in Schedule B. The plaintiffs case is that it is an ancestral land. For the proper appreciation of the case, it is worthwhile to cite the following pedigree given at the foot of the plaint - In the khatauni 1308 F, plot number 426/130 area 90-10-0 is recorded in the name of Chhotu, Sukhoo, Suddhu. Sitlu, Jhingur, Bidheshi and some other. This entry did not remain unbroken. In khatauni Jamabadi 1308 F, equal share in respect of all the tenure-holders is recorded. The rent of the land is Rs. 40/. In between 1308 and 1334 F, there is no entry in respect of this plot. In the khatauni 1334 F plot number 426/117 area 1.15 and plot number 426/155 area 2.46 (total area 3.61 acres) is recorded against Gokul s/o Bideshi, in khata No. 235. The duration of the entry is one year. Some entry continued in khatauni 1356 F and the duration of entry is 23 years. Gokul is recorded in the khasra 1362 to 1377 F. These are very long standing entries. A very heavy burden, therefore, lies on the respondent to dispute these entries. 8. Admittedly, Bhopal, Kali Charan and Gokul are real brothers. His father Bideshi was one of the recorded tenants against plot no. 426/130. In 1334 F the land came in the name of Gokul with duration of one year. The identity of the land is undisputed. It has been claimed by the appellant that the tenancy begins from 1334 F and not from 1308 F. The father of the appellant Gokul had claimed that the land was settled with him exclusively by the erstwhile zamindar. There is no reliable evidence to prove it. There is a sealed document on the record which shows that Bideshi died on 9-12-1927. This corresponds to 1335 F. It appears that after his death Gokuls name was recorded in 1334 F. If the land was exclusively acquired by Gokul then what happened to the land which was coming down in the name of Bideshi till his death. There is a sealed document on the record which shows that Bideshi died on 9-12-1927. This corresponds to 1335 F. It appears that after his death Gokuls name was recorded in 1334 F. If the land was exclusively acquired by Gokul then what happened to the land which was coming down in the name of Bideshi till his death. Either the land should have been disposed of or divided amongst the three brothers. But there is nothing on the record to show that the land was either sold out or divided amongst the three brothers. 9. It has been argued by the learned counsel for the appellant that the identity of the plot was broken because Gokul has been recorded in 1334-F. This contention is unacceptable. In 1308-F, the number of the clots were 426/130 and 426/170. When the khata was broken plot number 426/117 area 1.15 and plot no. 426/155 area 2.46 total area 3.61 were recorded in the name of Gokul s/o Bideshi in the year 1334-F with duration one year. What the learned counsel contends is that if the continuity remained unbroken, there was no point to record one year duration. This question has been dealt with in detail by Sri G.S. Sial M. in Sukha Ram v. Dukha Ram and others, reported in 1978 RD 247. The facts of the case under reference and the one before me are almost similar. In the case under reference one Mangroo was recorded against plot number 842 in 1308-F. This very plot came to be recorded in 1334-F along with other plots in dispute in the name of the father of the plaintiff with one year duration. The learned counsel for the appellant argued before Mr. Sial that as the identity of the plot was the same and the continuity was also broken as the period recorded is one year, plot number 842 should be held to be the sole acquisition of the plaintiffs father. Sri Sial did not agree to this view. Dealing with Section 22 of the Act of 1901. He said that the right of non-occupancy tenancy was heritable. The Agra Tenancy Act of 1926 created a new tenure of statutory tenants and non-occupancy tenants of 1901 were declared as statutory tenants as per Section 19 of the Act. The statutory tenants were entered in class 8 of part-A of the khatauni. He said that the right of non-occupancy tenancy was heritable. The Agra Tenancy Act of 1926 created a new tenure of statutory tenants and non-occupancy tenants of 1901 were declared as statutory tenants as per Section 19 of the Act. The statutory tenants were entered in class 8 of part-A of the khatauni. Sub-para (3) of para 74 of the Revenue Land Records Manual in respect of non-zamindari abolition areas provides that when the rent is varied then the terms of cultivation shall be computed from the date of said variation. The learned Member, therefore, held that mere recording of a change in the year of the tenure does not establish that the continuity has been broker. This ruling is directly and very aptly applicable to the instant case. 10. The rent of plot number 426/130 area 90-10-0 was Rs. 40/-. In the year 1334-F, the rent of plot number 426/117 area 1.15 and 426/155 area 2.46 was fixed at Rs. 76-11-0. Since the rent was varied under sub para (3) of para 74 of the Land Records Manual in respect of non-zamindari abolition areas, the duration was recorded as one year. I am, therefore, of the view that the tenancy being hereditary was acquired by the common ancestor Bideshi. The learned Additional Commissioner has, therefore, not committed any error in holding that all the three brothers were co-tenants though the land was recorded in the name of Gokul alone. My attention has been drawn towards the statement made by Gokul during his cross-examination. Gokul had admitted that he was the head of the family 'Main Ghar Ka Malik Tha'. Kali Charan had already fought and lost in respect of the land shown in Schedule B. The judgment shall therefore, operate as res-judicata against Kali Charao and his son Moti. The remaining two brothers Gokul and Bhopal are, therefore, entitled to share each. 11. Now, the next question for consideration is how far the land shown in Schedule A belongs to the appellant or the respondents. Admittedly, this is a rent-free grant of land. A rent-free grant is of two types - (a) charitable grant and (b) land granted in lieu of services, The case of the appellant is that the land belonged to one Sheo Baran who was the maternal uncle of Bhopal, Gokul and Kali Charan. Sheo Baran died issue-less. Admittedly, this is a rent-free grant of land. A rent-free grant is of two types - (a) charitable grant and (b) land granted in lieu of services, The case of the appellant is that the land belonged to one Sheo Baran who was the maternal uncle of Bhopal, Gokul and Kali Charan. Sheo Baran died issue-less. When he died, the plaintiffs were minor and only Gokul was major. He, therefore, acquired the landi in lieu of the services rendered by him to Sheo Baran, Since the minor did not serve they were not entitled to any share in the land shown in Schedule A. Sri Hari Shanker, the learned counsel for the appellant has also argued that under law the tenancy of Sheo Baran could not be acquired by his sister Smt. Sahodara. Sri B.B. Paul, learned counsel for the respondent has argued that the property of Schedule A shall be governed by the personal law and so all the three brothers shall inherit the property of their maternal uncle Sheo Baran. 12. The land of Schedule A shall be governed by Agra Tenancy Act, 1926. Section 183 of this Act defines a rent free grant as - "A rent-free grant means a grant of right to hold land rent-free by a land-holder with of without consideration : Provided that, if made after the commencement of this Act, such grant shall be made by registered instrument." The rent of this land is fixed. Section 190 of the Agra Tenancy Act, 1926 determines the class of tenure and rent. It provides that - "Where land held under a rent-free grant is found liable to have rent fixed thereon under Section 187, the grantee shall be deemed to have been a tenant from the date of the grant, and the class of his tenancy shall be determined in accordance with the provisions of this Act." Sub-section (2) of Section 190 of this Act provides that - " A tenant referred to in sub-section (1) who at the commencement of this Act has held the same land continuously for twelve years within the meaning of Sections 11 to 14 of the Agra Tenancy Act, 1901, shall be deemed to have acquired a right of occupancy." Sheo Baran, the grantee of the land shown in Scheduled. A died on 1-9-1918. The defendants has asserted that he had died in 1927. A died on 1-9-1918. The defendants has asserted that he had died in 1927. The fact, however, remains that he had held the land for more than 12 years. He, therefore, acquired the rights of occupancy under section 190(2) of the Agra Tenancy Act, 1926. Section 24 of the Agra Tenancy Act provides that - "When a male ex-proprietary tenant, occupancy tenant, statutory tenant or non-occupancy tenant dies, his interest in the holding shall devolve in accordance with the order of succession given below : Order of Succession Class-I - Male lineal descendants in the male line of descent. Class-II - Widow till her death or re-marriage. Class-III - Father. Class-IV - Mother being, a widow. Class-V - Brother being a son of the same father as the deceased. Class-VI - Daughters son. Class-VII - The nearest collateral male relating in the male line of descent : Provided that no such daughters son or collateral relative shall he entitled to inherit, who did not share in the cultivation of the holding at the time of the tenants death." 13. Where there is specific provision for succession of a male tenant the succession shall not be governed by personal law. The above order of succession shall that sister of a deceased cannot inherit the property. The contention made by the learned counsel for the respondent that the succession of the property of Sheo Baran shown in Schedule A shall be governed by personal of law, is untenable. This follows that all the three brothers Gokul, Bhopal and Kali Charan cannot inherint the property directly from their mother Smt. Sahodara. They can, however, acquire the land in lieu of the services rendered to the deceased Sheo Baran. 14. Now, the question is as to who had actually served, the deceased Sheo Baran. The learned counsel for the appellant has contended that when Sheo Baran died only Gokul was major amongst all the three brothers and it was Gokul alone who had served the deceased Sheo Baran and the minors did not serve. If this contention is accepted, it can be safely inferred that the family was join, and the two minor brothers were living with their elder brother. Gokul, Now, the question is whether the land acquired by the karta of the family will be presumed to be acquired in representative capacity. If this contention is accepted, it can be safely inferred that the family was join, and the two minor brothers were living with their elder brother. Gokul, Now, the question is whether the land acquired by the karta of the family will be presumed to be acquired in representative capacity. It has been held in Ram Kishor v. Ram Oudh and others reported hi 1976 RD 218 that - "If the land was acquired by the karta of the family the natural presumption would be that he acquired this land in representative capacity as karta of the family. Their is presumption of jointness in favour of the joint Hindu family as also about the acquisitions by the joint Hindu family which can only be ignored if there is strong proof in rebuttal. The ordinary rule of Hindu law is that any property acquired in the name of an individual member of a joint Hindu family is presumed to be joint." I see no reason to dis agree with Sri S.S. Ahmad M. who had given this verdict in the case referred to above. The plots shown in Schedule. A, therefore cannot be said to have been accused exclusively by Gokul. It will be presumed to have been acquired jointly. All the three brothers are, therefore, entitled to share in this land to the extent of 1/3 each. 15. For the foregoing reasons, Second Appeal No. 434 preferred by Jhoori, therefore, fails and is accordingly dismissed. The Second Appeal No. 49 preferred by Moti is partly allowed. 16. This order shall govern Second Appeal Nos. 434 of 1974-75 Varanasi and Second Appeal No. 49 of 1975-76/Varanasi.