JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri V.K.S. Chaudhary, Senior Advocate, assisted by Sri P.C. Pandey for the petitioners and Sri Namwar Singh appearing for the contesting respondents. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the parties, the writ petition is being finally decided. 3. By this writ petition, the petitioners have prayed for quashing the judgment and order dated 9th December, 1998 passed by Deputy Director of Consolidation deciding the revisions filed under Section 48 of U.P. Consolidation of Holdings Act, 1953 as well as the order of Settlement Officer of Consolidation dated 20th February, 1990 allowing the appeal filed by the respondents partly. 4. Brief facts necessary to be noted for deciding the writ petition are; the dispute between the parties arose in proceedings under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953. The dispute relate to different Khatas of six villages, namely, Dalipur, Ahrak, Pooran Patti, Nihalpur, Banaita and Pashchimpur. In Khata No. 171 of village Pashchimpur, the names of Srineta widow of Srinarain along with Ram Murat, Ram Ji and Ram Pyarey were recorded. Over all other villages the name of Srineta alone was recorded in the basic year record. A objection was filed by the petitioners claiming that a gift deed dated 29th March, 1972 has been executed by Srineta in their favour, hence their names be recorded. The objections were also filed by Amraji wife of late Arjun Singh, Hubraji, Mangal Prasad, Lalji, Banshraj, Hanshraj, Doodhnath, Virendra, Surendra, Mahendra, Narendra, Rajendra sons of Ram Bali, Adya Prasad and other respondents claiming co-tenancy right in the land in dispute with Srineta. Certain other disputes with regard to correction of the area of various plots was raised. Both the parties filed documentary evidence and led oral evidence also before the Consolidation Officer. The Consolidation Officer vide his order dated 29th June, 1976 allowed the objection of the petitioners on the basis of gift deed dated 29th March, 1972 except Khata No. 340 on the ground that Khata No. 340 being Sirdar, the basic year records be maintained. The claim of the contesting respondents for co-tenancy right was rejected. An appeal was filed by Adya Prasad and others against the order of Consolidation Officer dated 29th June, 1976. The appellate authority allowed the appeal partly holding that Amraji and Hubraji daughters of Shiv Gulam be recorded as co-tenant. The claim of the contesting respondents for co-tenancy right was rejected. An appeal was filed by Adya Prasad and others against the order of Consolidation Officer dated 29th June, 1976. The appellate authority allowed the appeal partly holding that Amraji and Hubraji daughters of Shiv Gulam be recorded as co-tenant. The appeal of Adya Prasad and rest of the appellants was dismissed. The 3/4th share was given to Srineta and 1/8th and 1/8th was given to Amraji and Hubraji each. Against the order of Settlement Officer of Consolidation revisions were filed both by Srineta and by Adya Prasad and others. All the revisions have been decided by order dated 9th December, 1998. The share of Srineta was held to be 1/4th on which names of the petitioners were directed to be recorded. The 1/4th share was given to Jeet Bahadur, Dharmsen, Tej Bahadur sons of Lalji, Banshraj and Hanshraj sons of Devi Dutt. The 1/4th share was given to Virendra, Surendra, Mahendra, Rajendar, Nagendra sons of Rambali, Adya Prasad son of Vibhuti, Lalbahadur, Dinesh son of Sita Ram, Kamta, Harishchandra sons of Roopnarain and 1/4th share was given to Mangal son of Doodh Nath. In Khata No. 340 of Pashchimpur name of Srineta was directed to be expunged and in accordance with Section 175 of U.P. Zamindari Abolition and Land Reforms Act, 1950 the respondents as mentioned at Item No. 2 to 4 in the impugned order (except the petitioner) were given share. This writ petition has been filed by the petitioners challenging the orders of Deputy Director of Consolidation and Settlement Officer of Consolidation. 5. Before considering the submissions of learned Counsel for the parties, it is useful to notice the respective case of the parties before the Courts below. The petitioners’ case before the Courts below was that Srineta, whose name was alone recorded, was bhumidhar of entire land and the contesting respondents had no right to the land in dispute. The petitioners further stated that the land in dispute was acquisition of Budhiram one of the five sons of Ganesh and the family throughout remain joint and there was no partition between the family. Petitioners’ case was that Srineta was the wife of Srinarain, who was son of Raghurai, one of the sons of Ganesh. The petitioners further stated that the land in dispute was acquisition of Budhiram one of the five sons of Ganesh and the family throughout remain joint and there was no partition between the family. Petitioners’ case was that Srineta was the wife of Srinarain, who was son of Raghurai, one of the sons of Ganesh. According to the petitioners out of five brothers, Dilip died unmarried, Shiv Gulam died in the year 1921, Budhiram died on 9.10.1922 and Achhaiwar died on 16.10.1934. Petitioners’ case further was that on the death of Budhiram his brother Achchaiwar succeeded to him and after the death of Achchaiwar his nephews Srinarain and Shiv Nath succeeded. Srinarain, the husband of Srineta died on 26th August, 1943. Shiv Nath executed a Will in favour of Srineta on 21.10.1961. Shiv Nath died on 29.10.1961 and thereafter Srineta became the sole tenure holder of the entire land in dispute. 6. The case of the respondents before the Courts below, in brief, was that the respondent Kamla son of Doodh Nath was daughter’s son of Achchaiwar. The case of Amraji, Hubraji and Sumitra was that they being daughters of Shiv Gulam inherited from their mother Naurangi, who died in the year 1960. Adya Prasad, Sitaram, Kamta, Harishchandra, Virendra, Surendra, Mahendra, Narendra and Rajendra claimed themselves to be daughter’s son of Budhiram. It is claimed that after the death of Anurupa widow of Budhiram her daughter’s son Adya Prasad and others succeeded. The respondents claimed that Dilip died unmarried, the remaining four brothers had 1/4th share each, the property was ancestral property coming from the time of Ganesh and all the brothers had 1/4th share, hence Srineta would have only 1/4th share and other three branches should have 1/4th share each. It was claimed that the land in dispute was recorded in different settlement entries in the names of several members of different branches, hence it cannot be said to be sole acquisition of any one branch. 7. Both the parties had filed documentary evidence before the Consolidation Officer, which had been noticed in the order of Consolidation Officer. The documentary evidence included the settlement entries of 1308 fasli, 1309 fasli and the death certificate of Budhiram to show that he died on 1.10.1922, Smt. Anurupa died on 16.10.1933, Achchaiwar died on 16.11.1934 and Srinarain died on 26th August, 1943. The documentary evidence included the settlement entries of 1308 fasli, 1309 fasli and the death certificate of Budhiram to show that he died on 1.10.1922, Smt. Anurupa died on 16.10.1933, Achchaiwar died on 16.11.1934 and Srinarain died on 26th August, 1943. On an application filed in suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 by Shiv Nath an order was passed by Judicial Officer on 26th September, 1963. The objection filed by Srineta against the application filed by Lalji, Banshraj, Mangala and Rambali in case under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950, copy of the objection filed by Srineta and the statement of Srineta were also filed. Oral evidence was also lead before the Consolidation Officer. The consolidation authorities have also referred to various khatauni entries including settlement entries of 1291 fasli, 1307-08 fasli and 1333-34 fasli. In the settlement entries of 1291 fasli in village Dalipur names of Raghurai, Budhiram, Shiv Gulam and Achchaiwar were recorded, in village Ahrak in Khata Nos. 67 and 69 names of Raghurai and Budhiram and in Khata No. 47 names of Raghurai, Achchaiwar and Shiv Gulam were mentioned. In village Purab Patti names of Shiv Gulam, Raghurai, Achchaiwar and Budhiram and in village Pashchimpur name of Ganesh in Khata No. 6 and name of Raghurai in Khata No. 18, 45 and 715 were recorded. In settlement entries of 1307-08 fasli in village Dalipur in Khata No. 38 names of Shiv Gulam, Raghurai, Achchaiwar and Budhiram were recorded, in village Ahrak names of Raghurai and Budhiram were recorded, in village Nihalpur in Khata No. 25 names of Raghurai, Budhiram, Achchaiwar and Shiv Gulam were recorded, in village Baghaita in Khata No. 24 names of Raghurai, Budhiram, Achchaiwar and Shiv Gulam were mentioned and in village Pashchimpur in Khata No. 73 names of Raghurai and Budhiram were mentioned. In the settlement entries of 1333-34 fasli in village Dalipur name of Anurupa was recorded on Khata No. 6 and 14, in village Ahrak in Khata No. 33 name of Anurupa and in Khata No. 41 names of Achchaiwar, Anurupa, Naurangi, Srinarain and Shiv Nath were recorded in village Purab Patti names of Anurupa, Naurangi, Achchaiwar, Srinarain and Shiv Nath were recorded, in village Nihalpur in Khata No. 18 names of Achchaiwar, Anurupa, Naurangi, Srinarain and Shiv Nath and in Khata No. 24 names of Achchaiwar, Srinarain and Anurupa were recorded, in village Baghaita in Khata No. 18 names of Achchaiwar, Srinarain, Shiv Nath and Anurupa were recorded and in village Pashchimpur names of Srinarain, Shiv Nath and Achchaiwar were recorded. The details of entries have been duly mentioned in the order of the Consolidation Officer, and the Deputy Director of Consolidation which have not been challenged. 8. The pedigree of the family as claimed by Amraji and others has been noted in the order of Consolidation Officer as well as the Deputy Director of Consolidation which is as follows : Ganesh Singh Raghurai Budhiram Achchaiwar Shivgulam Dilip Singh Singh Singh Singh Singh Musamat Anurupa Musamat Gaura Musamat Naurangi Deokali Sonkali Roopnarain Mahesh Singh R/o Vatchhara R/o Khargesanpur Sumitra Amraji Hubraji Srinarain Shiv Nath Rajaram Arjun Singh Devdutt Smt. R/o Seur Nuani R/o Tadwa Srineta Doodhnath Singh Mangla Lalji Udainarain Singh Banshraj Singh Hanshraj Singh Ramwali Sitaram Singh Ganta Singh Harishchandra Singh Subhraji Virendra Surendra Mahendra Narendra Rajendra 9. Sri V.K.S. Chaudhary, learned Counsel for the petitioners in support of the writ petition raised following submissions : 1. The pedigree of the family as claimed by the respondents has not been proved by any valid evidence. In suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 filed by Shiv Nath and Srineta after the death of Shiv Nath on 29.10.1961 an application was filed by Amraji, Hubraji, Deokali and Jirao claiming themselves as daughters of Raghurai and sisters of Shiv Nath, which application was rejected by the Judicial Officer against which revision was also dismissed by the Board of Revenue, hence it is not open for them to claim now to be daughters of Shiv Ghulam and Budhiram respectively. The consolidation authorities have found the pedigree proved only on the basis of statement of Srineta given in suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950. 2. After the death of Anurupa widow of Budhiram on 16.10.1933, the daughter’s son namely Adhya Prasad, Sitaram, Kamta and Harishchandra cannot become heir since they were not co-sharing in cultivation. Similarly after the death of Gaura widow of Achchaiwar, Doodh Nath, the daughter’s son cannot become heir he having not co-sharing in cultivation. It is submitted that both under the North Western Provinces Tenancy Act, 1901 as well as the Agra Tenancy Act,1926 daughter’s son can succeed only when he has been co-sharing in cultivation. There was no evidence that daughter’s sons were co-sharing in the cultivation, hence they cannot claim succession and the findings were recorded by Settlement Officer of Consolidation that daughter’s son had not been co-sharing in the cultivation but in spite of that Deputy Director of Consolidation has given them share. 3. The holding has not been coming down from common ancestor in the same manner. No evidence having been led that holding is coming down from common ancestor in the same form, it cannot be said that holding is ancestral holding in which the respondents can claim co-tenancy right. 4. Before the Deputy Director of Consolidation a compromise has been filed by the respondents amongst themselves to the effect that each branch shall have 1/4th share, which compromise is not binding on the petitioners and the Deputy Director of Consolidation committed error in relying on the said compromise. 10. Learned Counsel for the petitioners in support of his above submissions has relied on several judgments of this Court as well as the Apex Court, which shall be referred to while considering the submissions in detail. 11. Sri Namwar Singh, Counsel appearing for the contesting respondents, refuting the submissions of learned Counsel for the petitioners, contended that pedigree of the family was fully proved from the evidence on record. He submitted that the same pedigree was given in the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950, which was filed by Srinarain and Srineta with regard to properties of village Purab Patti against one Sikhi. He submitted that the same pedigree was given in the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950, which was filed by Srinarain and Srineta with regard to properties of village Purab Patti against one Sikhi. Although the claim of Amraji, Hubraji, Sumitra, Deokali and Jirao that they are sisters of Shiv Nath was rejected but the pedigree as claimed before the consolidation authorities was found to be proved. The statement of Srineta in the case under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 has also been relied to prove the pedigree. It is submitted that the land was ancestral in which names of all the persons from all the branches were recorded in different Khataunis, which proves that land was ancestral. It is further submitted that no evidence has been given by the petitioners that there was any fresh settlement in favour of Shiv Nath or Srinarain or Srineta. According to the provisions of Agra Tenancy Act, 1926 and the North Western Provinces Tenancy Act, 1901 the daughters and daughter’s sons shall succeed. It is contended that after the death of Achchaiwar on 16.10.1934 his widow Gaura will succeed and Gaura died in the year 1952 i.e., after abolition of Zamindari and the succession will open in accordance with 172 under which daughter’s son is an heir. It is further claimed that Naurangi widow of Shiv Gulam died in the year 1960 and at the time of her death her daughters and the daughter’s son shall succeed. It is further submitted that the land of village Pashchimpur of Khata No. 340 being ‘Sirdari’ could not have been gifted by Srineta to the petitioners. It is contended that Srineta had no share in the land in dispute. 12. Sri Namwar Singh in support of the above submissions has relied on several judgments of this Court as well as the Apex Court, which shall be referred to while considering the submissions in detail. 13. I have considered the submissions raised by learned Counsel for the parties and perused the record. 14. The first submission of learned Counsel for the petitioners is with regard to pedigree. 13. I have considered the submissions raised by learned Counsel for the parties and perused the record. 14. The first submission of learned Counsel for the petitioners is with regard to pedigree. The pedigree, as noted in the judgment of the Consolidation Officer and Deputy Director of Consolidation, has been held to be proved by the evidence on record and all the consolidation authorities have decided on the basis of the pedigree as quoted above. The submission of learned Counsel for the petitioners challenging the pedigree is two fold. Firstly it is submitted that the respondents Amraji, Hubraji and Deokali having claimed themselves as sisters of Shiv Nath in suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950, which was not accepted, they are now estopped from claiming themselves to be daughters of Shiv Gulam and Budhiram. The suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 was filed by Shiv Nath and Shivnarain against one Sikhi for ejectment. In the said proceedings after the death of Shiv Nath an application was filed by Amraji and others that they being daughters of Raghurai and sisters of Shiv Nath be recorded in place of Shiv Nath deceased. The objection was filed by Srineta to the said application. The Deputy Director of Consolidation has noticed in the impugned order that objecting to the claim of Amraji and others it was stated by Srineta that Deokali and Jirao are not the sisters of Shiv Nath but they are daughters of Budhiram. In the objection filed by Srineta a pedigree was given in which three daughters of Shiv Gulam, namely, Sumitra, Amraji and Hubraji were shown and Jirao and Deokali were shown as daughters of Budhiram. The Judicial Officer decided the case on 7th August, 1963 and held Deokali and Jirao to be daughters of Budhiram and not the sisters of Shiv Nath. Against which order revision was filed in which recommendation was made by the Commissioner, Varanasi Division, Varanasi on 26th September, 1963 for dismissing the revision. The revision was ultimately dismissed by the Board of Revenue on 6th February, 1964. The Deputy Director of Consolidation and Consolidation Officer have relied on the objections filed by Srineta in the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 and her statement. The revision was ultimately dismissed by the Board of Revenue on 6th February, 1964. The Deputy Director of Consolidation and Consolidation Officer have relied on the objections filed by Srineta in the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950 and her statement. The Settlement Officer of Consolidation after considering the oral evidence on record recorded a categorical finding that on the basis of the evidence the pedigree given is proved. The admission on behalf of Srineta given in the objection filed in suit under Section 202 accepting Deokali and Jirao as daughters of Budhiram and not the sisters of Shiv Nath was relied. The Deputy Director of Consolidation has also noticed that before the Consolidation Officer statement of Srineta was recorded. Srineta in her statement before the Consolidation Officer did not prove any pedigree of her own, rather she stated that whatever she is stating is on the basis of what she was told by her Counsel and she cannot tell the name of brothers of Raghurai. Both Settlement Officer of Consolidation and Deputy Director of Consolidation have found the pedigree proved on the basis of the evidence, which was on the record including the oral evidence of the parties. The submission of Counsel for the petitioners that once Amraji and others have set-up the claim that they are sisters of Shiv Nath, now they are stopped from claiming in the present case to be daughters cannot be accepted. The claim of Amraji and others was not accepted in suit under Section 202, rather Srineta denied them to be sisters of Shiv Nath and claimed them to be daughters of Shiv Gulam and Budhiram respectively. The relationship as claimed by Amraji and others having not been proved, there is no estoppel from deciding the correct relationship when dispute arose during consolidation between the parties. It is true that Deputy Director of Consolidation also observed that no documentary evidence could be filed by the respondents in the present case to prove the pedigree set-up by them but the Deputy Director of Consolidation after making above observation proceeded to examine the oral evidence of the parties including the written statement filed by Srineta in suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act, 1950. 15. 15. Learned Counsel for the petitioners submitted that even the statement of Srineta regarding pedigree was not admissible since she had not disclosed any knowledge to know relationship. He further contended that oral evidence regarding relationship could be admissible only when it fell under Section 32(5) and Section 50 of the Indian Evidence Act. There cannot be any dispute with the submission that only that oral evidence can be looked into to prove a relationship which is relevant under Sections 32(5) and 50. The statement of Srineta or other oral evidence recorded in the case has not been brought on the record to examine the submissions raised by Counsel for the petitioners in detail. According to Section 59 of the Indian Evidence Act all facts, except the contents of documents or electronic, may be proved by oral evidence. Section 60 of the Indian Evidence Act required that oral evidence must, in all cases whatever, be direct. The oral evidence of Srineta and others relied by the consolidation Courts for upholding the pedigree having not been brought on the record, the submission of the petitioners that the oral evidence were irrelevant cannot be accepted. Thus the findings regarding pedigree of the parties as held to be proved is based on consideration of evidence on record, which need no interference by this Court in writ proceedings. 16. The pedigree having now been found to be proved, it is necessary to find out the relevant dates when the succession open on deaths of different members of the family and the relevant provisions of law applicable at the relevant time. The petitioners themselves have filed the death certificate of Budhiram, Anurupa, Achchaiwar and Shiv Gulam. Dilip died unmarried leaving four brothers, namely, Budhiram, Achchaiwar and Shiv Gulam and Raghurai. Budhiram died on 9th October, 1922. First it is to be examined as to who will succeed Budhiram on 9th October, 1922. On 9th October, 1922 provisions of North West Provinces Tenancy Act, 1901 were in force. Section 22 of the 1901 Act provides as under : “22. Budhiram died on 9th October, 1922. First it is to be examined as to who will succeed Budhiram on 9th October, 1922. On 9th October, 1922 provisions of North West Provinces Tenancy Act, 1901 were in force. Section 22 of the 1901 Act provides as under : “22. Succession to tenancies.—When an ex-proprietary tenant, an occupancy tenant, or a non-occupancy tenant (other than a thekadar) dies, his interest in the holding shall devolve as follows : (a) on his male lineal descendants in the male line of descent; (b) failing such descendants, on his widow till her death or remarriage; (c) failing such descendants and widow, on his brother, being a son of the same father as the deceased; and failing any such heirs as above mentioned, (d) on his daughter’s son; and (f) failing such daughter’s son, the interest collateral male relative in the male line of descent : Provided that no such daughter’s son or collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of the tenant’s death." 17. When Budhiram died his widow Anurupa was alive and by virtue of Section 22(b) holding shall devolve on his widow till her death. On death of Budhiram in presence of widow daughter’s son will not succeed. Similarly when Shiv Gulam died in the year 1921, 1901 Act was in force and by virtue of Section 22 the holding was devolved on his widow Naurangi. Thereafter Anurupa widow of Budhiram died on 16.10.1933 on which date the Agra Tenancy Act, 1926 was in force. Sections 24 and 25 of the Agra Tenancy Act, 1926 are relevant, which are quoted below : “24. Succession of male tenant.—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 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 – Daughter’s son. 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 – Daughter’s son. Class VII – The nearest collateral male relative in the male line of descent : Provided that no such daughter’s son or collateral relative shall be entitled to inherit, who did not share in the cultivation of the holding at the time of the tenant’s death. 25. Succession of female tenants.—(1) When a female ex-proprietary, occupancy or non-occupancy tenant who has inherited an interest in a holding under Sec. 24, or the female heir of a statutory tenant dies or surrenders, or abandons such interest, or in the case of a widow of class II in Section 24 re-marries, such interest shall, notwithstanding anything contained in Section35, devolve upon the nearest surviving heir of the last male tenant such heir being ascertained in accordance with Section 24. (2) When any female ex-proprietary, occupancy or non-occupancy tenant other than one subject to the provisions of sub-section (1) dies, her interest in the holding shall devolve— (a) on her male lineal descendants in the male line; (b) if there are no such descendants, on her husband; (c) if there are no such heirs as abovementioned, on her daughter’s son, provided that he was sharing in the cultivation of the holding at the time of the tenant’s death. (3) When a female statutory tenant dies, her interest in the holding, subject to the limitation of Sec. 20, shall devolve as in sub-section (2) of this section." 18. According to Section 25 read with Section 24 on the death of Anurupa, the brother of Budhiram, namely, Achchaiwar was alive on whom the holding devolved. It is relevant to note that the brother is in Class V and daughter’s son is in Class VI in order of succession. In presence of brother, daughter’s son shall not succeed and the interest of Budhiram, which after his death was held by Anurupa shall devolve on Achchaiwar on death of Anurupa on 16.10.1933. 19. Much emphasis has been laid by learned Counsel for the petitioners on the submission that daughter’s son who has not been co-sharing cannot succeed under Section 24 of the Agra Tenancy Act, 1926 as well as under North West Provinces Tenancy Act, 1901. 19. Much emphasis has been laid by learned Counsel for the petitioners on the submission that daughter’s son who has not been co-sharing cannot succeed under Section 24 of the Agra Tenancy Act, 1926 as well as under North West Provinces Tenancy Act, 1901. There cannot be any dispute that as per the provisions of Section 22 proviso of 1901 Act and Section 24 proviso of 1926 Act daughter’s son should not be entitled to inherit who did not share in the cultivation. The proviso is to be following effect “provided that no such daughter’s son or collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of the tenant’s death”. 20. Learned Counsel for the petitioner has relied on several decision of this Court laying down that co-sharing should be with the resources of the daughter’s son and co-sharing should be with the last male tenure holder. Reliance has been placed on 7 R.D. 265; Kollu v. Shital, and 1930 R.D. 239; Sheo Din Singh v. Sheo Dulare and others. It having been found that on the death of Anurupa the daughter’s son of Budhiram shall not inherit in presence of Achchaiwar, it is not necessary to refer to other cases relied by Counsel for the petitioner on co-sharing by a daughter’s son for succession. 21. Now the next succession open on death of Achchaiwar on 16.11.1934. On 16.11.1934 the Agra Tenancy Act, 1926 being in force by virtue of Section 24 the widow Gaura will inherit till death. With regard to date of death of Gaura the parties are at variance. The submission of Counsel for the petitioners is that Gaura died during period when U.P. Tenancy Act, 1939 was in force whereas learned Counsel for the respondents submits that Gaura died in the year 1952. The Settlement Officer of Consolidation recorded a finding that when Gauri died 1939 Act was in force. The Settlement Officer of Consolidation has held that Gaura died in the year 1952. The Deputy Director of Consolidation in the impugned order although has observed that Gaura died in the year 1952 but also has held that Gaura died during the period when U.P. Tenancy Act, 1939 was in force. The Settlement Officer of Consolidation has held that at the time of death of Gaura Shiv Nath will succeed. The Deputy Director of Consolidation in the impugned order although has observed that Gaura died in the year 1952 but also has held that Gaura died during the period when U.P. Tenancy Act, 1939 was in force. The Settlement Officer of Consolidation has held that at the time of death of Gaura Shiv Nath will succeed. The Deputy Director of Consolidation has observed that after the death of Gaura, Naurangi will succeed. It is to be seen as to who will succeed in accordance with the provisions of U.P. Tenancy Act, 1939. Sections 35 and 36 of the U.P. Tenancy Act, 1939 deal with succession, which are as follows : “35. Succession under personal law in certain cases.—When a male tenant, other than a tenant mentioned in Sec. 34 dies, interest in his holding shall devolve in accordance with the order of succession given below : (a) male lineal descendants in the male line of descent : Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive; (b) widow; (c) father; (d) mother, being a widow; (e) step mother, being a widow; (f) father’s father; (g) father’s mother, being a widow; (h) widow of male lineal descendant in the male line of descent; (i) unmarried daughter; (j) brother, being the son of the same father as the deceased; (k) daughter’s son; (l) brother’s son, the brother having been a son of the same father as the deceased; (m) father’s brother; (n) father’s brother’s son; 36. Succession to a female tenant holding an interest inherited as a widow etc.—(1) When a female tenant, other than a tenant mentioned in Sec. 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father’s mother, or as a daughter dies or abandons such holding, surrenders such holding, or a part of such holding or, or in the case of a tenant inheriting as a widow or as a daughter, marries, such holding or such part of such holding shall, notwithstanding anything in Section 45, devolve in accordance with the order of succession laid down in Section 35 on the heir of the last male tenant, other than a tenant who inherited as a father’s father under the provisions of that section. (2) When a tenant who inherits an interest in a holding as a father’s father in accordance with the provisions of sub-section (1), or of Sec. 35, abandons such holding or surrenders such holding or a part of such holding or dies, such holding or such part shall, notwithstanding anything in Sec. 45, devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with the provisions of Section 35.” 22. According to Section 36 when a female tenant, who has inherited an interest in a holding as a widow dies, the holding shall devolve on the heir of last male tenant, the heir of last male tenant is to be ascertained in accordance with Section 35. The order of succession given under Section 35 mentions “(i) unmarried daughter; (j) brother, being the son of the same father as the deceased; (k) daughter’s son; (l) brother’s son, the brother having been a son of the same father as the deceased”. There is no case of the respondents that at the time of death of Gaura, Sonkali was unmarried. At the time of death of Gaura no brother of Achchaiwar was alive and the next person in order of preference is ‘daughter’s son’. Shiv Nath, who is brother’s son, is mentioned subsequent to daughter’s son. Thus daughter’s son shall take precedence over brother’s son. Thus on the death of Gaura, Doodh Nath who is daughter’s son shall succeed. 23. Now comes the succession on the death of Smt. Naurangi. Naurangi died in the year 1960 i.e. after the U.P. Zamindari Abolition and Land Reforms Act, 1950 came into force. Shiv Gulam, husband of Naurangi died in the year 1921. Naurangi had inherited interest before the date of vesting as widow. Succession will be governed by Section 172(2)(b) read with Section 171 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Section 172(2)(b) as well as Section 171 of U.P. Zamindari Abolition and Land Reforms Act, 1950 are as follows : "172. Succession the case of a woman holding an interest inherited as a widow, mother, daughter etc.—(1) When a bhumidhar or asami who has after the date of vesting, inherited an interest in any holding— (2) ..... (a) ..... Section 172(2)(b) as well as Section 171 of U.P. Zamindari Abolition and Land Reforms Act, 1950 are as follows : "172. Succession the case of a woman holding an interest inherited as a widow, mother, daughter etc.—(1) When a bhumidhar or asami who has after the date of vesting, inherited an interest in any holding— (2) ..... (a) ..... (b) dies, abandons or surrenders and in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father’s mother marries such bhumidhar on the date immediately before the said date held the holding otherwise than as an intermediary or tenant referred to in clause (a), the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male tenant. 171. General order of succession.—(1) Subject to the provisions of Section 169, when a bhumidhar or asami, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles, namely— (i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares; (ii) the heirs specified in any preceding clause of Sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in Clause (a) shall be preferred to those in Clause (b), those in Clause (b) shall be preferred to those in Clause (c), and so on, in succession; (iii) if there are more widows than one, of the bhumidhar or asami, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share; (iv) the widow or widowed mother or the father’s widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried. (2) The following relatives of the male bhumidhar or asami are heirs subject to the provisions of sub-section (1), namely— (a) widow and the male lineal descendant per stirps : Provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive; (b) mother and father; (c) unmarried daughter; (d) married daughter; (e) brother and unmarried sister being respectively the son and the daughter of the same father as the deceased; and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased; (f) son’s daughter; (g) father’s mother and father’s father; (h) daughter’s son; (i) married sister; (j) half sister, being the daughter of the same father as the deceased. (k) sister’s son; (l) half sister’s son, the sister having been the daughter of the same father as the deceased; (m) brother’s son’s son; (n) mother’s mother’s son; (o) father’s father’s son’s son.” 24. The married daughter is mentioned under Section 171 at Item No. (d) that is above the daughter’s son. Thus on the death of Naurangi holding shall devolve on her daughter Amraji and Hubraji. From the aforesaid, it is clear that share of Budhiram shall devolve on his brother Achchaiwar, after the death of his widow Anurupa and the share of Achchaiwar after the death of his wife Gaura shall devolve on daughter’s son Doodh Nath and the share of Shiv Gulam on the death of Naurangi shall devolve on his married daughters Amraji and Hubraji. Shiv Nath and Shivnarain shall have 1/4th share of the branch of Raghurai. It is relevant to note that the case of Srineta herself before the Courts below was that the land was acquired by Budhiram and all the brothers were joint and there was no partition in the family. The Courts below after considering the entries recorded in different settlement year and khataunies held that land was ancestral. Even in the settlement entries of 1291 fasli when Budhiram was alive in village Dalipur names of Raghurai, Budhiram, Shiv Gulam and Achchaiwar were recorded, in village Ahrak names of Raghurai, Budhiram, Achchaiwar and Shiv Gulam were recorded and in village Purab Patti names of Shiv Gulam, Raghurai, Achchaibar and Budhiram were recorded. Even in the settlement entries of 1291 fasli when Budhiram was alive in village Dalipur names of Raghurai, Budhiram, Shiv Gulam and Achchaiwar were recorded, in village Ahrak names of Raghurai, Budhiram, Achchaiwar and Shiv Gulam were recorded and in village Purab Patti names of Shiv Gulam, Raghurai, Achchaibar and Budhiram were recorded. Thus in settlement entries of 1291 fasli names of all the branches were recorded in different khatas, hence the findings recorded by consolidation authorities that the land was ancestral and all the branches have 1/4th share is based on materials on record and cannot be faulted with. 25. Learned Counsel for the petitioners has placed reliance on various decisions to the effect that entries do not confer any title and the fact that in the basic year Srineta was recorded is not relevant. Reliance has been placed on A.I.R. 1930 P.C. 91, Wali Mohammad and others v. Mohammad Baksh and others. The Privy Council in the said judgment made following observations : “The entries relied on by the appellants were not the foundations of their title but were mere items of evidence adduced by them to prove the sale. The only question as regards the entries is their evidenciary value on the fact in issue, viz., the sale.” 26. There cannot be any dispute that entries themselves did not confer any title but the entries are relevant piece of evidence reliance on which in appropriate cases can very well be made by the Court. 27. The learned Counsel for the petitioners has also placed reliance on the judgment of this Court reported in 2006(101) R.D. 216, Jagdeo and others v. Deputy Director of Consolidation, wherein this Court held that, if revenue entries are continuing since long and much before zamindari abolition then independently of Section 49 of U.P. Consolidation of Holdings Act, 1953, unrecorded tenure holder is estopped from asserting his right on the basis that the revenue entries are benami in tenure and at the time of acquisition of the tenancy or zamindari his ancestor was joint with the original tenant. 28. The proposition laid down by this Court could have been applicable in the present case had the branches represented by objectors/respondents were never recorded in the records. 28. The proposition laid down by this Court could have been applicable in the present case had the branches represented by objectors/respondents were never recorded in the records. As noticed above, all the four branches were recorded since settlement of 1291 fasli and thereafter also names of all the four branches were recorded in subsequent years in different khatas of different villages. Thus the case of Jagdeo (supra) does not help the petitioners. 29. The submission on which much emphasis has been laid is that the identity of holding has been changed, which is evident from recording of names of different persons in different khatas. The Counsel for the petitioner has placed reliance on the judgment of this Court reported in 1984 (2) L.C.D. 398, Jagdamba Singh and others v. Deputy Director of Consolidation and others. In the said judgment following was laid down by this Court in paragraphs 14 and 15 : “14. It is fairly well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of its being ancestral, the unbroken identity of the holding has got to be established throughout the period. If the identity has changed of the holding, the claim cannot succeed...” 15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral, it is essential that the entire land of the holding of the common ancestor must have come down in the identical form and it must have remained unchanged and intact. It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question, viz., having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc. then in such event it cannot be said that there is a break in the identity of the holding in dispute. then in such event it cannot be said that there is a break in the identity of the holding in dispute. The slight change like elimination of certain plots or the increase or decrease in the area of certain plots, for the aforesaid reasons shown, would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form and that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included in the present disputed holding, it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant." 30. Another judgment relied by Counsel for the petitioners is Supreme Court judgment in (2006)12 S.C.C. 349 , Dharamraj and others v. Chhitan and others. The Apex Court in the said judgment laid down that if the identity of the land is changed, a person claiming co-tenancy right could not get the property on the ground that originally this land had been recorded in the name of his ancestor. Following was laid down in paragraph 25 of the said judgment : “25. Such being the position, it must be held that Respondents 1 to 3 being the successors-in-interest from the side of Adhin, whose name was duly recorded in respect of the said land, were entitled to succeed to the said land on the basis of identity and resettlement of the same. If the identity of the land has been changed, the appellants could not get the property on the basis that originally this land had been recorded in the name of Saltanati and that the said land was their ancestral property. If the identity of the land has been changed, the appellants could not get the property on the basis that originally this land had been recorded in the name of Saltanati and that the said land was their ancestral property. Therefore, the pedigree set-up at the instance of Respondents 1 to 3, even if it cannot be relied on, Respondents 1 to 3 were entitled to succeed on the basis of the aforesaid fact.” 31. There cannot be any dispute to the propositions as have been laid down in the aforesaid cases of this Court and the Apex Court. In the present case, it is not the case of Srineta that the land was acquired by her branch alone, i.e., Raghurai. The acquisition according to Srineta who is predecessor-in-interest of the petitioners, is claimed from Budhiram. No case of any fresh settlement in favour of Srineta or Shiv Nath has even been claimed nor the petitioners had taken any case that identity of the land was changed, hence the land does not belong to the persons who were originally recorded and it is to devolve on the persons in whose names the fresh settlement has been made. The petitioners’ case themselves was that family was joint and there was no partition. The land is specifically pleaded by the petitioners to be sole acquisition of Budhiram. No benefit can be taken by the petitioners from the submission that identity of the land was not same throughout. In the facts of the present case, when no such plea was raised before the consolidation Courts nor the consolidation Courts were invited to give any finding on the said submission, the petitioners having not taken any ground regarding change of the identity of the land before the consolidation Courts, the said submission cannot be accepted in this writ petition. 32. The submission of the petitioners’ Counsel is that holding has not been coming from common ancestor in same form. As noted above, in settlement of 1291 fasli on the land of different villages all the branches were recorded. 32. The submission of the petitioners’ Counsel is that holding has not been coming from common ancestor in same form. As noted above, in settlement of 1291 fasli on the land of different villages all the branches were recorded. Even if the case of the petitioners is accepted that it was not acquisition of Ganesh, the common ancestor, the names of all brothers being recorded in the settlement of 1291 fasli, which land was also recorded in the subsequent settlement in the names of different persons of all the four branches, the land is clearly proved to be ancestral all the four branches having share in it. The dispute of co-tenancy has been raised by three branches, i.e., branch of Budhiram, Achchaiwar and Shiv Gulam as against Srineta who belongs to branch of Raghurai. The petitioners’ case themselves before the Courts below was that family was joint and no partition had taken place between the brothers. The petitioners although claimed that land was sole acquisition of Budhiram but names of all the branches being recorded in settlement of 1291 fasli and in subsequent settlement different member of the branches having been recorded, all the branches have to be conceded share in the land in dispute and the case of the petitioners does not improve on the submission that land did not belong to common ancestor. The Deputy Director of Consolidation has considered relevant entries in the different settlement of different villages and recorded finding that land is ancestral. The said findings are findings of facts, which do not deserve any interference in writ jurisdiction. 33. The last submission of the Counsel for the petitioners is that Deputy Director of Consolidation has relied on a compromise entered between the branches of Budhiram, Achchaiwar and Shiv Gulam, which was wholly inappropriate. A perusal of the order of Deputy Director of Consolidation indicates that Deputy Director of Consolidation has referred to a compromise amongst the three branches as mentioned above. The compromise, as noticed by the Deputy Director of Consolidation, refers to co-option and it was prayed that if the share of Shiv Gulam, Budhiram and Achchaiwar is proved, their heirs be entitled to have their share. It is true that the said compromise being between three other branches the same cannot have any effect on the right of Srineta who belongs to different branch. Srineta admittedly was not part of the compromise. It is true that the said compromise being between three other branches the same cannot have any effect on the right of Srineta who belongs to different branch. Srineta admittedly was not part of the compromise. The compromise amongst three branches has no value with regard to entitlement or share of three branches but in accordance with the discussions, as made above, the branch of Budhiram after the death of Anurupa should not be inherited since the said share was to go to Achchaiwar, the brother of Budhiram and on death of Gaura, the widow of Achchaiwar, the daughter’s son Doodh Nath was to inherit. In view of the above Doodh Nath, apart from share from the branch of Achchaiwar was also entitled to the share of Budhiram. None of the shares of Budhiram or Achchaiwar went to Shiv Nath or Srinarain. Thus the share of the branch of Raghurai was not effected in any manner with regard to holding, which came into share of Doodh Nath as well as Amraji, Hubraji and Sumitra. The Deputy Director of Consolidation has given 1/4th share each to daughter’s son of Budhiram, namely Adya Prasad, Sitaram, Kamta and Harishchandra, 1/4th share to Doodh Nath and another 1/4th share to Amraji and Hubraji. The division of share amongst the respondents having not been challenged by filing any revision by the respondents, at the instance of the petitioners, when the petitioners determination of share of 1/4th share has been found to be correct, the inter-se share of the respondents cannot be interfered with. Thus the compromise, which has been referred to and relied by Deputy Director of Consolidation cannot have any effect in share of the petitioners. Thus the said compromise at best was inter-se division of share between three branches of the respondents, which having not been challenged by any of the three branches, does not need any interference in this writ petition. 34. Now remains one more submission of the petitioners to be considered, which is with regard to Khata No. 340 of village Pashchimpur. Srineta was recorded in Khata No. 340 in the basic year. The petitioners also laid claim on Khata No. 340 on the basis of gift deed. 34. Now remains one more submission of the petitioners to be considered, which is with regard to Khata No. 340 of village Pashchimpur. Srineta was recorded in Khata No. 340 in the basic year. The petitioners also laid claim on Khata No. 340 on the basis of gift deed. The Consolidation Officer maintained the entry of Srineta with regard to Khata No. 340 with the observation that the land of Khata No. 340 was ‘Sirdari’ and no evidence was filed before the Consolidation Officer that Srineta had obtained bhumidhar sanad. No appeal was filed by the petitioners against the said order of Consolidation Officer. The petitioners, however, have pleaded in the writ petition that with regard to Khata No. 340 of village Pashchimpur Srineta after becoming bhumidhar in view of U.P. Act No. 8 of 1977 executed a Will on 21st August, 1995 in favour of Rakesh Kumar Singh and Anil Kumar Singh sons of Jaswant Singh, who were not party to the revision. The Deputy Director of Consolidation by the impugned order has divided Khata No. 340 between three branches relying on Section 175 of U.P. Zamindari Abolition and Land Reforms Act, 1950. It has been pleaded in the writ petition that application for mutation on the basis of Will dated 21st August, 1995 is pending consideration. The question as to whether Srineta’s share was bequeathed by Will dated 21st August, 1995 is pending consideration in separate mutation proceeding. The respondents’ three branches in view of the order of Deputy Director of Consolidation shall have share in Khata No. 340 in view of the findings and reasons given by Deputy Director of Consolidation. However, the share of Srineta in Khata No. 340 to the extent of 1/4th cannot be denied and the question as to whether Srineta’s share will be inherited by whom was not an issue before the Deputy Director of Consolidation although Srineta died during pendency of the revision. Thus interest of justice will be served in observing that the determination of the share in Khata No. 340 in favour of the respondents shall be subject to result of determination in the mutation proceedings, if any, with regard to claim of share of Srineta by virtue of Will or otherwise. Thus interest of justice will be served in observing that the determination of the share in Khata No. 340 in favour of the respondents shall be subject to result of determination in the mutation proceedings, if any, with regard to claim of share of Srineta by virtue of Will or otherwise. It is made clear that the order of Deputy Director of Consolidation dated 9th December, 1998 with regard to Khata No. 340 of village Pashchimpur shall not come in way of re-determining the share of contesting respondents in appropriate proceedings for determining the entitlement to the share of Srineta, if any. 35. In the result, subject to modification with regard to Khata No. 340 of village Pashchimpur, the order of Deputy Director of Consolidation is affirmed. 36. The writ petition is dismissed subject to above observation regarding Khata No. 340 of village Pashchimpur. Parties shall bear their own costs. ————