JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the judgment and decree dated 8.9.81 passed by the Additional Commissioner, Lucknow Division, Lucknow, dismissing the appeal No. 339 of 1979-80 and confirming the decree dated 7.11.79 passed by the Assistant Collector 1st class Rai Bareili decreeing the suit No. 127/28 of 1978-79. 2. The brief facts of the case are that Bipati filed a suit u/s 229-B/176 of the U.P. Zamindari Abolition & Land Reforms Act with the contention that plot No. 1633-A area 1-11-3 is the co-tenancy of the plaintiff and defendant Surajdin and has been coming down since the time of their ancestors Pancham son of Madari. The name of the defendant Surajdin was recorded in the representative capacity. Since the defendant intended to take undue advantage of the entry in the revenue pacers, the plaintiff sought partition of the plot in dispute claiming share. The defendant Surajdin contested the suit and denied the allegations. His case is that his father Sukhram alias Sukhlal was living separately from his father. It has also been pleaded that the suit is barred u/Sec. 34 (5) of the Land Revenue Act. It was also pleaded that the defendant's father had acquired the land about 40 years back. Since then, he and his son have been in continuous and exclusive possession. On the pleadings of the parties, the learned Trial Court framed 5 issues and decreed the suit after hearing the parties. Aggrieved by this order, the defendant Surajdin went in appeal which too was dismissed on 8.9.81. 3. I have heard the learned counsel for the parties. Sri Hari Shanker, the learned counsel for the appellant has contended that this case is governed by the Oudh Rent Act. Referring to Section 48 of the Oudh Rent Act, 1886, the learned counsel has submitted that when a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for the period of 5 years only from the date of the death of the tenant 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 renewal of the tenancy. After the expiry of the statutory period of 5 years, the tenancy lapses. After the expiry of the statutory period of 5 years, the tenancy lapses. According to him, the instant case is not of co-tenancy because in 1332F corresponding to 1924, the tenancy was recorded in the name of Pancham, father of Jangali, Sukhram and Laxman. In 1346 F which corresponds to 1938, Jangali and Laxman were recorded with a period of 13 years. In 1359F, Sukhram, father of the defendant appellant Surajdin was recorded with a period of 11 years. He has further argued that Jangali and Laxman were not acceptable to the Zamindars because there is remark 'Bina Tasfia Darj Hai'. 4. Sri B.B. Paul, the learned counsel for the respondent has submitted that it is the case of the defendant appellant that he was in possession of the land on the strength of patta which was not produced. In reply, the learned counsel for the appellant has contended that the defendant appellant was not supposed to file any patta and the plaintiff has to stand upon his own legs. He has further argued that when an unrecorded tenant claims co-tenancy, two essential conditions are to be met - (a) the tenancy is unbroken and (b) the period of possession is continuous and the rent is the same. 5. I have given a careful thought to the arguments advanced before me and have also perused the record. The plaintiff respondent has claimed co-tenancy rights in the land in dispute. The criteria of co-tenancy arising out of a common ancestor are: firstly the holding should come down intact without any variation in the area; secondly, there should be evidence of family remaining joint or if the family is not joint, there should be specific evidence of that the family was joint at the time of partition and lastly, there should be evidence of joint possession. If one branch has been in possession to the exclusion of the other, there should be no co-tenancy. It appears from the following pedigree: that Pancham was the common ancestor. The tenancy was recorded in the name of Pancham in 1332F which corresponds to 1924. In 1346F corresponding to 1938 Jangali and Laxman are found recorded. In 1359F Sukhram, is recorded against the land in suit. It appears from the following pedigree: that Pancham was the common ancestor. The tenancy was recorded in the name of Pancham in 1332F which corresponds to 1924. In 1346F corresponding to 1938 Jangali and Laxman are found recorded. In 1359F Sukhram, is recorded against the land in suit. Section 48 (1) of the Oudh Rent Act, 1886 provides that - "(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 (e) of sub-section (1) of Section 62-A applied 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. Section 48 (2) of the Oudh Rent Act provides that - "Subject to any rights which he may have under Section 22 as a representative of the deceased, a collateral relative who did not, at the date of the death of the deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section." 6. Apparently, this is not a case of co-tenancy. Jangali and Laxman are recorded 'Bina Tasfia'. It follows that the Zamindar had not admitted them as tenants. On the contrary, the tenancy came to be recorded in the name of Sukhram who continued to be in possession. The tenancy is, therefore, not unbroken. The Courts below have committed manifest error in not taking into consideration the provisions of the Oudh Rent Act. The contention of the learned counsel for the respondent that the defendant has not produced the patta on which he based his claim, is without substance. He was not supposed to produce patta. The plaintiff has to stand upon his own legs. 7. In the result, this appeal succeeds and is consequently allowed and the orders and decrees of both the courts below are set aside.