JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the judgment and decree dated 28.3.1977 passed by Smt. Madhuri Srivastava, Addl. Commissioner, Lucknow Division, Lucknow, allowing the defendant's appeal and modifying the decree by setting aside the judgment and decree dated 30.9.1975 passed by Shri Triveni Sahai, Assistant Collector 1st Class, Rai Bareli in a case u/Sec. 176 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Sheo Naik Singh and Amar Pal Singh brought a suit u/Sec. 176 of the Act for the division of holding on the basis of the following pedigree set up in the plaint: Their case is that the grove No. 911 area 1-17-10, 1376/0-14-15, 1370/3-16-3 and grove No. 916/2-5-2 situate in village Bela Gusisi and grove No. 3081/1-11-10 situate in village Bela Khara Rai Bareli are the co-bhumidhari land of the plaintiffs and the defendants 1 to 7. The plaintiff held share, defendant No. 1 held share and the remaining share is held by the defendants 2 to 7. The defendant No. 1 Ganga Bux Singh contested the suit admitting the pedigree but denying the claims made in paras 2 to 7 of the plaint and claiming share in the land in dispute. 3. Defendants 2 to 7 admitted the pedigree with some reservation denying Bhikha Singh to be the son of Meharban Singh and Meharban Singh to be the son of Hari Singh. Their case is that Sardar Singh held ? share and Bhikha Singh ? share in the grove in dispute and the defendants have been continuing in possession of the respective shares of their ancestors. 4. The learned trial court decreed the suit No. 30.9.1975 holding that the plaintiff was entitled to share, defendant No. 1 share and the defendants 2 to 7 held share. This finding was upset in appeal preferred by Mahadeo Singh by the learned Addl. Commissioner on 3.7.1977 holding that the appellant Mahadeo Singh was entitled to ? share, Shiv Naik Singh and Amarpal Singh 1/6 and Ganga Bux Singh 1/6. Aggrieved by this decree, Ganga Bux Singh preferred this second appeal. During the course of the proceedings, the appellant Ganga Bux Singh died and was substituted by Shiv Singh Ranjit Singh, Jagdish Singh, Sarvajit Singh, Samarjit Singh, Amarjit Singh and Jaskaran Singh. 5. I have heard the learned counsel for the parties.
Aggrieved by this decree, Ganga Bux Singh preferred this second appeal. During the course of the proceedings, the appellant Ganga Bux Singh died and was substituted by Shiv Singh Ranjit Singh, Jagdish Singh, Sarvajit Singh, Samarjit Singh, Amarjit Singh and Jaskaran Singh. 5. I have heard the learned counsel for the parties. Sri Ram Pal Singh, the learned counsel for the appellant has contended that copy of the plaint of 1886 and copy of the written statement have been filed by the appellant to prove the pedigree. The learned trial court has framed 4 issues but the learned Addl. Commissioner has given no finding on issue No. 1. He further assailed the finding of the court below on the determination of the shares contending that though there is no document about the village Bela Khera, the finding about the plot situate in this village has also been given. What he wants to emphasis is that the findings are not based on the evidence on record. So the share in the plot situate in village Bela Khera will be same as pleaded in the plaint. As regards the land situate in village Bela Gusisi, the contention of the learned counsel is that the determination of the share is not a question of fact. The share is to be determined on the basis of the pleadings. Reliance has been placed on 1972 R.D. 381. He has further contended that the share determined on the basis of Khatauni 1332-F is rebuttable. Reliance has been placed on 1980 ALR 54. He has further submitted that it is the duty of the court to determine the share of all the co-tenants even if the defendant does not claim co-tenancy rights. But the learned Addl. Commissioner went beyond the pleading and determined the share on the basis of the entry made in the Khatauni. In support of bis argument, he has placed reliance on 1986 ALR 7 - Joga Singh v. D.D.C. and 1970 R.D. 467. 6. Sri Awadesh Singh, learned counsel for the respondent has submitted that, firstly, the basis of the claim of share has not been given in the plaint except in the pedigree, secondly, the defendants 2 to 7 have asserted in the written statement that their share is 2/5; thirdly, the witness Shiv Naik Singh has admitted that the defendants 2 to 7 held ? share.
share. Relying on 1985 R.D. 135 and 1965 AIR SC 364; the learned counsel has contended that the admission is the best niece of evidence. Justifying the findings of the court below based on the entries, the learned counsel has contended that the share of the defendants 2 to 7 ore specified in the settlement khatauni and the entry remained unchallenged. In support of his argument, the learned counsel has cited 1981 R.D. Part II 295, 1976 R.D. Vol. II 36 and 1982 R.D. 253. 7. I have carefully considered the submissions made before me and have also perused the records. The substantial question of law involved in this case is as to what will form the basis for determination of the shares i.e., whether shares should be determined on the basis of the pedigree or the shares recorded in the revenue papers. The proposition of law is that the share should be determined in accordance with the pedigree but there is no bar for determining the share if it is recorded in the record of rights i.e., khatauni. There is absolutely no prohibition in the khatauni regarding the mention of specific shares of individual tenure holders in a joint holding. There is also presumption of correctness of long standing entries of the khatauni under the provisions of the U.P. Land Revenue Act. Thus, the fact that the shares of individual tenure holders have been recorded unchallenged since 1366-F in the khatauni indicates that these shares have been correctly recorded. (Gaya Charan v. Raj Kumar and others 1981 R.D. Vol. II 295. 8. This ruling applied to the instant case with full force. It appears from the judgment of the court below that the give in dispute was joint tenancy of Sirdar Singh and Meharban Singh. The share of Sardar Singh is recorded as 2/3 and that of Mehrnban Singh 1/3 in the khatauni of 1300-F corresponding to 1893 at page A-55. The tenancy came down in identical form and the same entry is found in the records of consolidation. During the course of statement, the plaintiff Shiv Naik Singh is admitted in his cross-examination that the plaintiffs held only ? share and Mahadeo and others 2/5. According to him, Ganga Bux Sinqh, appellant held only ? share. 9.
The tenancy came down in identical form and the same entry is found in the records of consolidation. During the course of statement, the plaintiff Shiv Naik Singh is admitted in his cross-examination that the plaintiffs held only ? share and Mahadeo and others 2/5. According to him, Ganga Bux Sinqh, appellant held only ? share. 9. The learned Additional Commissioner has correctly relied upon the unchallenged old entries made as early as in 1300-F. It has been brought to my notice by the learned counsel for the appellant that there is no document regarding the village Bela Khera. So, the findings are not based on the evidence on the record. I find sufficient force in this contention. Though the entries are rebuttable, there is nothing on the record that may induce me to disbelieve them. The entries are pretty old. The parties shall, therefore, be bound by the shares mentioned in the record. Since these entries pertain to village Bela Gusisi and not of Bela Khera, the share in respect of the latter will be determined in accordance with the pleadings made in the plaint. 10. The learned counsel for the respondent placing reliance on the admission of Shiv Naik Singh has urged to determine the shares on the basis of the admission. In support of his argument, he has placed reliance on 1985 R.D. 135. I have respectfully gone through this ruling. Hon'ble K.N. Misra, J. of the Allahabad High Court has held in Girdhari Lal v. D.D.C. that: "It is well settled that admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved in the erroneous. It appears to be well fairly settled that an admission about a relevant fact by any one of persons having joint interest in the property in dispute would be an admission against all co-owners whether they be jointly sued or not, provided it fulfils the triple test; firstly, it should be an admission about the disputed property, secondly, it should be the admission of the person jointly interested in the property as co-owner thereof and the admission runs against his own interest in the property and, lastly, it should not have been cohesively made in order to defraud or designed to deprive the co-owners of the property in dispute, wholly or partially.
This if the admission of co-owner fulfils these tests and is genuine and not shown to be mala fide, it would not only bind the maker but also the co-owners. And, it can be used as an admissible substantial evidence against the maker and his co-owners as well and also against all those who claim under them as their heirs, successors and assigns. It is equally well settled that an admission is to be presumed to be true unless the contrary is shown." The above ruling is not of any help to the respondent as no share in respect of the village Bela Khera is mentioned in the khatauni. 11. In the result, this appeal is partly allowed. The decree given by the learned Addl. Commissioner is upheld so far as village Bela Gusisi is concerned. As regards the village Bela Khera the decree shall he prepared in accordance with the findings given by the learned trial court. The parties shall bear their own costs.