JUDGMENT Krishna Murari, J.
1. Heard Sri Shahid Masud, learned counsel for the petitioner,
2. In spite of service of notice contesting respondent nos. 4 to 10 have not chosen to enter appearance and to contest.
3. The dispute relates to khata no. 139 of village Hathgani, Pargana Arail, district Allahabad which was recorded in the basic year solely in the name of the petitioner. Opposite party nos. 4 & 5 filed objection claming to have perfected rights by adverse possession. Another objection was filed by opposite" party nos. 6 to 10 claiming rights as co-tenant in the disputed khata on the ground that land in dispute belonged to one Jia, their maternal grandfather and was inherited jointly by the petitioner and the respondents who are all his grandsons. The claim of the respondents was contested by the petitioner on the ground that he was co-sharing the land in dispute with his maternal grandfather and with the consent of the Zamindar his name came to be recorded in the revenue records. The respondents never participated in the cultivation of the land and hence not entitled to inheritance. The claim of respondent nos. 4 & 5 on the basis of adverse possession was also contested by the petitioner.
4. The Consolidation Officer vide order dated 23.3.1971 maintained the basic year entry and dismissed both the objections. However, the Settlement Officer Consolidation allowed the appeal and held all the parties to be co-tenants. This order of the Settlement Officer of Consolidation was set aside in revision and the case was remanded back to the Consolidation Officer. After remand the Consolidation Officer . vide order dated 27.10.1975 held the petitioner to be co-tenant of 1/2 share of the khata in dispute on his own right. He further held that remaining 1/2 will be inherited by all the brothers as heirs of their grandfather Jia and determined their share to be 1/16th each. The claim of o.p. nos. 4 & 5 based on adverse possession was rejected.
5. Aggrieved by the said order, two appeals were filed - one by the petitioner and other by o.p. nos. 4 & 5. The Settlement Officer Consolidation vide order dated 25.11.1976 allowed both the appeals. Again two revisions were filed - one by opposite party nos. 6 to 10 and the other by the petitioner. The Deputy Director of Consolidation vide order dated 22.10.1977 allowed both the revisions. Thus the claim of the opposite party nos. 4 & 5 based on adverse possession was rejected while opposite parties 4 to 10 were held to be co-tenant in khata in dispute is heirs of deceased Jia their grandfather.
6. Opposite party nos. 4 & 5 filed writ petition nos. 1960 of 1978 against the order of the consolidation authorities rejecting their claim on the basis of adverse possession, which was dismissed by this court on 29.11.1978. Thus their claim based on adverse possession came to be finally adjudicated. There is no dispute between the parties that they are daughters* sons of deceased Jia and khata in dispute originally belonged to Jia.
7. All the three courts below have found that name of the petitioner came to be Recorded over the khata in dispute along with Jia on the basis of co-sharer during his life time with the permission of the Zamindar and thus they are entitled to 1/2 share. A perusal of the objection filed as annexure-1 to the writ petition goes to show that the rights were claimed by the contesting respondents on the basis of inheritance being daughters' sons of tenure-holder Jia.
8. The only dispute left to be adjudicated is whether opposite parties are entitled to inherit the remaining 1/2 of the khata in dispute as heirs of deceased Jia. There is no dispute about the fact that Jia died sometimes in 1348 fasli when Agra Tenancy Act was in force and the rights of the party would be governed by the provisions of the said Act, Section 24 of the Agra Tenancy Act deals with the succession of male tenants. The daughter does not find place in the order of succession though daughter's son is mentioned in clause (vi) of the order of succession under the said Section. Thus the claim of the contesting respondents as set out in their objection that property was inherited by their mother from whom they have inherited cannot be accepted. Now what is to be considered is whether they are entitled to inherit the property as daughter's sons. No doubt daughter's sons are entitled to succession in case no other person mentioned in clause (i) to (v) is available. However, the proviso to the said Section places a restriction and unless a daughter's son or a collateral relative was sharing in the cultivation of the holding at the time of tenant's death he shall not be entitled to inherit. In view of the aforesaid provision, unless the contesting respondents were co-sharing in cultivation with their maternal grandfather they shall not be entitled to inheritance after his death.
9. Co-sharing used in Section 24 of the Agra Tenancy Act does not mean helping in cultivation or looking after the management of the holding. Co-sharing in cultivation is a concept which implies that co-tenants pool their agricultural stocks, implements of cultivation etc. and other resources for joint cultivation and there should be positive contribution towards the expenses of cultivation. Mere living together or giving assistance in cultivation is not enough to prove co-sharing. There must be measure of pooling of resources in order to establish co-sharing. A vague statement that one lived with late tenant and assisted him in cultivation is not sufficient to establish co-sharing. It should be clearly proved as to what definite acts were done which may constitute co-sharing and the burden to prove co-sharing lies on one who claims rights.
10. In the present case there is no finding either by the Consolidation Officer or the Deputy Director of Consolidation with regard to any of the ingredients of co-sharing. Both the Consolidation Officer and the Deputy Director of Consolidation have held that all the contesting respondents were born prior to death of tenure-holder Jia and they had no other land and lived with him and helped in cultivation and hence Entitled to succeed after his death. The approach of the courts below is totally erroneous. Unless the fact of co-sharing was pleaded and proved by the contesting respondents they would not be entitled to inheritance and their claim would be barred by the proviso to Section 24 of the Agra Tenancy Act. The contesting respondents based their claim in the objection as daughter's sons of Jia. There was no pleading about the co-sharing with him nor there was an iota of evidence to establish the factum of co-sharing. The witness adduced on their behalf only stated that they lived with Jia and helped him in cultivation. This was not sufficient to establish and prove the co-sharing and both the courts below have committed a grave illegality in accepting their claim on the basis of this statement without their being any evidence of any kind adduced by them to establish co-sharing. On the contrary the Settlement Officer Consolidation clearly recorded a finding that none" of the contesting respondents were co-sharing in cultivation along with tenant Jia at the time of his death and thus are not entitled to inheritance.
11. In view of the aforesaid discussions, the impugned orders dated 25.10.197.5 of the Consolidation Officer and 22.10.1977 passed by the Deputy Director of Consolidation in so far as they relate to claim of the contesting respondents as heirs of deceased tenant Jia cannot be sustained and are hereby quashed and that of the Settlement Officer Consolidation dated 25.11.1976 passed in appeal no. 7721 (Dubri v. Sahadeo and Ors.) is affirmed. The claim of respondent nos. 4 & 5 over the khata in dispute based on adverse possession already stands rejected by dismissal of the writ petition no. 1960 of 1978.
12. The writ petition stands allowed.
13. No order as to costs.