JUDGMENT Krishna Murari, J.
1. Heard Sri Radhey Shyam, learned counsel for the petitioner and Sri B.P.Singh, learned counsel appearing for the contesting respondents.
2. The dispute relates to the share of the parties in khata Nos. 69, 73 and 185. In the basic year the said khatas were jointly recorded in the name of the petitioner and contesting respondent Nos. 3 & 4. The pedigree of the litigating parties is as under :
Adhar /
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2. The pedigree is undisputed and also there is no dispute about the fact that all the three branches of Adhar had 1/3rd share each, according to the pedigree. The dispute is confined to 1/3rd share of Mata Badal who died issueless. During consolidation proceedings an objection Section 9-A(2) of the U.P. Consolidation of Holdings Act (for short 'the Act') was filed by respondent Nos. 3 & 4 claiming 2/3rd share in khatas in dispute on the ground that there was partition between Bechan and other two brothers Jokhan and Mata Badal and 1/3rd share of Bechan was partitioned and Jokhan and Mata Badal remained in the state of jointness. After death of Mata Badal his 1/3rd share was exclusively inherited by the branch of Jokhan and as such they entitled to 2/3rd share in the khatas in dispute. The petitioner contested the claim of respondents on the ground that there was partition in the three branches and their shares were separated. After death of Mata Badal his share was inherited by branch of Bechan and Jokhan jointly.
3. The Consolidation Officer vide judgment dated 18.11.1976 rejected the claim of respondent Nos. 3 & 4 and held that petitioner and respondents both are entitled to inherit the share of Mata Badal. The Settlement Officer Consolidation allowed the appeal filed by respondent Nos. 3 & 4 and held that petitioner is entitled to 1/3rd share and respondents are entitled to 2/3rd share. Feeling aggrieved the petitioner filed a revision which was dismissed by the Deputy Director of Consolidation on 20.3.1984.
4. In support of their case, the respondents relied upon certain khatauni entries of 'bakasht' over 2/3rd area of khata in dispute in the name of Baba, the grandfather of respondent Nos. 3 & 4. They also placed reliance on 'dakhalnama' in the partition suit which according to them, went to show that 1/3rd share of Bechan was separated and he was given possession of the same. The Consolidation Officer recorded a finding that there is nothing on record to indicate that there was any settlement in the suit for partition on the basis of which 1/3rd share of Bechan was separated and the other two branches remained joint. However, the Settlement Officer Consolidation and Deputy Director of Consolidation allowed 2/3rd share to respondent Nos. 3 & 4 only on the basis of entry of 'bakasht' over 2/3rd area of the khatas in dispute in the name of Baba.
5. The first question which arises for consideration is whether after partition and separation of 1/3rd share of Bishwanath the joint family status still continued. Considering this question, the Apex Court in the case Pedasubhayya v. Akkamna has observed as follows:
The view was at one time held that there could be no partition, unless all the coparceners agreed to it or until a decree was passed in a suit for partition. But the question was finally settled by the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj 43 Ind App 151 : AIR 1916 PC 104 (G) wherein it was held, on a review of the original texts and adopting the observation to the effect in Suraj Narain v. Ikbal Narain 40 Ind App 40 at p. 45 (PC) (H), that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not, that a division in status takes place when he expresses his intention to become separate unequivocally and unambiguously, that the filing of a suit for partition is a clear expression of such an intention, and that, in consequence, there is a severance in status when the action for partition is filed. Following this view to its logical conclusion, it was held by the Privy Council in Kawal Nain v. Prabhu Lal 44 Ind App 159 : AIR 1917 PC 39 (I), that even if such a suit were to be dismissed, that would not affect the division in status which must be held to have taken place, when the action was instituted.
6. In view of the law laid down by the Apex Court, it is clear that after the suit for partition was filed there was severance in the status of joint family. However, there is no bar that after partition and separation of one coparcener, the other coparcener cannot rejoin and constitute a joint Hindu family amongst themselves, but that requires to be proved by positive evidence. In the present case, except for entry of 'bakasht', there is no material on record to indicate that after partition two branches rejoined and continued in the state of jointness. Entry of 'bakasht' only indicates possession. In the absence of positive evidence to establish that after partition the other two branches rejoined and continued in the state of jointness, mere entry of possession of one branch over 2/3rd area of the khata does not go to establish the joint family status of the said two branches.
7. Both Deputy Director of Consolidation and Settlement Officer Consolidation have committed an error of law in holding that respondent Nos. 3 & 4 would be entitled to the share of Mata Badal only on the basis of entry of 'bakasht'.
8. It was next contended by learned counsel for the respondents that entry of 'bakasht' indicates that predecessor in interest of the respondents were sharing in cultivation with Mata Badal over his share and thus entitled to succeed in accordance with provisions of Section 22 of the N.W.P. Tenancy Act, 1901 and the petitioner would be excluded as he never shared in cultivation.
9. In reply it has been contended by learned counsel for the petitioner that since tenancy was fixed rate tenancy as such succession would be governed by Section 20 of N.W.P. Tenancy Act, 1901 and Section 22 of the said Act has no application. My attention has been drawn to khatauni of 1331 fasli filed as annexure-CA-I which contains an entry of 'arazi sarah muyyan' which means fixed rate tenancy. Section 20 of the Act provides that interest of a permanent tenure holder and fixed rate tenant is inheritable and transferable interest.
10. There is no material on record nor any finding has been recorded regarding date of death of Mata Badal and thus a dispute has been sought to be raised whether the rights of the parties would be governed by the N.W.P. Tenancy Act, 1901 or Agra Tenancy Act, 1926. However, this question will not detain the court in as much as the position under the two enactments is the same. Under Section 22 of the Agra Tenancy Act, 1926, also the interest of a fixed rate tenant is both inheritable and transferable. Thus whether the rights of the parties are governed by N.W.P. Tenancy Act, 1901 or Agra Tenancy Act, 1926, the tenancy being fixed rate tenancy was inheritable and interest in the holding shall devolve in accordance with personal law to which the deceased was subject.
11. It was next contended by the leanred counsel for the respondents that entry of 'bakasht' shows that they were in exclusive possession over 2/3rd area of khatas in dispute and thus were entitled for the same on the basis of long possession.
12. This contention raised on behalf of the respondents is devoid of any merits. It is well settled rule of law that shares of parties in a joint holding is to be determined according to law and not merely on the basis of possession. Possession of one co-tenant is possession of all the co-tenants. A co-tenant cannot lose his share, to which he is entitled according to law, merely because he happens to be in possession over a lesser area, unless a claim of ouster and adverse possession is pleaded and successfully proved. In the present case the burden was upon the contesting respondents to establish that they have perfected rights on the basis of adverse and hostile possession. However, the plea of adverse possession was never pleaded by the contesting respondents. In the absence of any pleading and proof of adverse and hostile possession, by the contesting respondents, mere entry of possession is of no help to them. The view taken by me finds support from two decisions of learned Single Judge in the case of Shesh Nath and Ors. v. Joint Director of Consolidation 1982 RD 245 and Ram Lakhan v. Deputy Director of Consolidation 1983 RD 218.
13. In view of the above, on death of Mata Badal his 1/3rd share would be inherited by the remaining two branches jointly.
14. Thus the impugned judgments of the Settlement Officer Consolidation and Deputy Director of Consolidation allowing 2/3rd share in the khatas in dispute to the contesting respondents are illegal. The Consolidation Officer rightly held that petitioner as well as respondent Nos. 3 & 4 jointly are entitled to 1/2 and 1/2 share in the khatas in dispute.
15. In the result, the writ petition stands allowed. The impugned judgments of the Settlement Officer Consolidation dated 7.12.1979 and that of the Deputy Director of Consolidation dated 28.3.1984 are hereby quashed.
16. However, in the facts and circumstances, there shall be no order as to costs.