JUDGMENT A.U. Khan, M. - The facts are; On 4.9.1974 Thamman institutes a suit for partition of holding under Section 176 Z.A. and L.R. Act in the court of Sub-Divisional Officer Sardhana, Meerut. The pleading has set forth the contention that he is co-tenant in possession and his share is ?rd in joint holding; the share of each two brother's is also ?rd. The relief specify his share in holding and to separate it has been prayed for. 2. The suit is supported by defendant Magey D/1 who files his Iqbaldawa on 22.10.74. Nonetheless the suit is resisted by Dalle Singh D/2 who files his written statement on 22.2.1975. He retorts that it is not at all so. The share of plaintiff Thamman and Magey D/1 is th each; his own is 1/2 in joint holding. He clarifies that their father Kanak Singh has so divided the shares in his I fie time; he is in possession of his share. The basis of this division is custom of 'Chotibar': women's pig tail which prevails in his village; the shares of descendants is decided equally between the widows of deceased. He has set forth that their father Kanak Singh had two wives. As he is alone son of one, his share is 1/2; the rest share devolves equally on two brothers; Thamman and Magey. 3. On the pleadings of parties issues were formulated on 20.3.1975. Parties have been given chance to lead their evidence; documental and oral. They have made their representations. On 10.11.1975 Asstt. Collector, First Class enters an order of preliminary decree, specifying Thamman's only th share. 4. Thamman lodges an appeal in Commissioner's. On 4,1.1977 Addl. Commissioner enters an order of dismissed of appeal. Hence the second appeal is carried by plaintiff Thamman. 5. Heard the counsel pro and con the appeal, perused the record. 6. The following pedigree explains the controversy between the parties. 7. This pedigree is not disputed. It is not in controversy that two are real brothers and one step brother, all sons of Kanak Singh. As is provisioned in tenancy law, the share of each co-tenant should be ?rd. In this view of things, the shares of Thamman and Mangey will be ?rd and that of Dalley Singh ?rd. 7. This pedigree is not disputed. It is not in controversy that two are real brothers and one step brother, all sons of Kanak Singh. As is provisioned in tenancy law, the share of each co-tenant should be ?rd. In this view of things, the shares of Thamman and Mangey will be ?rd and that of Dalley Singh ?rd. But courts below have relied on a custom in 'Wajibul Arz' which recites that as between two wives the shares shall devolve equally i.e., it shall go by 'Chotiabat'. The counsel for appellant submits that custom relates to village Kakepur and parties are resident of village Sarupur. He elaborates that custom in the 'Wajibul Arz' relates primarly to persons and not to land which is 'of course, situate in village Kakepur. 8. The point needs close scrutiny. The original tenure-holder Kanak Singh has expired in 1932 or thereabouts. The succession shall be go by Section 24 U.P. Tenancy Act, 1939. If a custom is shown to govern succession as respects parties the same is to be respected as is elucidated in 1980 R.D. 23. What are conditions in 'Wajibul Arz' as respects succession between two wives of a deceased tenant. The 'Wajibul Arz' reciting the customs of village Kakepur has been carefully read over to me. I agree with appellant's counsel that custom of 'Chotiabat' women's pig tail governing succession essentially relates to landowning families who, in consequence of vesting, are termed, intermediaries. The custom of 'Chotiabar' is not shown to have governed succession of those who are mere tenants. The numerous tenantry, the people of no name, ended the drama of their lives on a dismal note generations after generation 'Wajibul Arz', containing no account of their passion and succession. In the annals of mankind they have remained nameless; multituae. There is no scope of evidence to bear out that really the custom has entailed in some instances. Kanak Singh, by all counts was a tenant at his death and succession to the partimony shall go by Section 24 U.P. Tenancy Act, 1939. In this view, the share of co-tenants; three brothers shall be ?rd each. The courts below have not given earnest consideration to whom the custom in the 'Wajibul Arz' relates. 9. The second appeal is allowed; the orders of courts below are set aside. In this view, the share of co-tenants; three brothers shall be ?rd each. The courts below have not given earnest consideration to whom the custom in the 'Wajibul Arz' relates. 9. The second appeal is allowed; the orders of courts below are set aside. The share of plaintiff-appellant Thamman is declared ?rd; the share of Mangey D/1 is ?rd and share of Dalle Singh D/2 is also ?rd. Preliminary decree be prepared accordingly. Lower Court to proceed for preparation of final decree in accordance with Rules 157 and 131 Z.A. and LJR. Rules. S'