JUDGMENT Krishna Murari, J.
1. These are two connected writ petitions arising out the same judgment of Deputy Director of Consolidation and between the same parties.
2. Heard, Sri Shri Kant and Sri Indrasen Singh, learned Counsel appearing for the respective parties in both the writ petitions.
3. The dispute relates to Khata No. 56 of village Padari Aman and Khata No. 97 of village Phulwaria. In the basic year, the petitioners of writ petition No. 5788 of 1973 were recorded as Sirdars of Khatas in dispute. An objection under Section 9 A (2) of U.P. Consolidation of Holdings Act (for short the Act) was filed by contesting respondents claiming to be Sirdars on the allegation that khatas belong to their common ancestor. It was alleged that holdings in dispute were acquired by common ancestor Jhaggar who had two sons namely Ram Tahal and Tulsi. The petitioners belong to the branch of Ram Tahal whereas contesting respondents are descendants of Tulsi. After the death of Jhaggar only the name of Ram Tahal came to be recorded in the records though Tulsi being the other son had equal share. The claim was contested by the petitioners on the plea that holdings had not been acquired by common ancestor but was self-acquisition of Ram Tahal. It was also pleaded that identity of holdings was also not the same. The contesting respondents also made a claim on the basis of an ex parte decree passed in a suit filed by them under Section 229B of U.P. Zamindari Abolition & Land Reforms Act. However, Settlement Officer Consolidation has recorded a finding that it was alleged by the contesting respondents themselves that suit filed by them under Section 229B of U.P.Z. A & L.R. Act was abated. The said point is thus of no help to the contesting respondents and rightly the same has not been pressed by the learned Counsel during the course of arguments.
4. All the three courts have held that holdings have not come in identical form from the time of ancestor Jhaggar as there was variation in area and there was a change in period of tenancy as well as nature of tenure. However, the Deputy Director of consolidation allowed the revision in respect of plots No. 279 and 280 of Khata No. 56 of village Padari Aman and plots No. 947, 948, 949, 950, 951 and 975 of Khata No. 97 of village Phulwaria on the ground that said plots were recorded in the name of common ancestor and also form part of new holdings and as such the contesting respondents are entitled to be declared co-tenure holders of the said plots. With respect to the rest of the plots of two Khatas in dispute the revision was dismissed. The part order of the Deputy Director of Consolidation allowing the claim of respondents for the aforesaid plots has been challenged in writ petition No. 5788 of 1973 whereas the order dismissing the claim for the rest of the plots is under challenge in connected writ petition No. 7229 of 1973.
5. It has been urged by Sri Shri Kant appearing for the petitioners in writ petition No. 5788 of 1973 that once the Deputy Director of Consolidation found that holding has not come down in identical form from the time of ancestor it was not open for him to have picked out those plots out of disputed khatas which were common in the old holding as well as in new holding and to grant co-tenancy right to the respondents treating them to be ancestral.
6. On the other hand it has been contended by Sri Indrasen Singh appearing for the petitioners in writ petition No. 7229 of 1973 that from evidence on record it was established that land was acquired by common ancestor. Jhaggar and identity of holding was never broken and the Deputy Director of Consolidation wrongly denied their claim in respect of entire two Khatas.
7. I have considered the rival contentions of both the parties and carefully perused the record.
8. After a detail examination of various documentary evidence brought on record in the form of Khatauni extracts and 'Fardmutibikat', the Consolidation Officer and the Settlement Officer Consolidation recorded a finding that identity of holding has undergone change and the land has not come down in identical form from the time of ancestor. A very categorical finding has been recorded that there is variation in area, certain plots of old holding have gone out and new plots have, been added inv the holding and there is a change in the period of tenancy as well. The Deputy Director of Consolidation though found that there is variation in area and certain new plots have been included in the folding and some of the old plots recorded in the name of common ancestor have disappeared from the holding, yet, he gave co-tenancy rights to the contesting respondents over the plots which were in the old holding as well as in the new holding on the ground that these said plots have come down from the time of ancestor and their identity is not broken. He has, further, held that slight variation in the area will not destroy the ancestral character of the said plots.
9. The law on the subject is very well settled. In order to entitle a party to claim co-tenancy right in the holding on the ground of it being ancestral, the unbroken identity of the entire holding throughout the period has to be established. If the identity of the holding undergoes a change the claim cannot succeed. The only exception is where as a result of survey made during settlement, the area of some plots increase or decrease or some plots are eliminated for some explained reasons from the holding such as alluvial or deluvial action of river etc. then the slight change in the holding for the aforesaid and like reasons would not operate to destroy the ancestral character of the holding. However, where the disputed holding has not come down intact in identical form and only some of the plots of the holding belonging to common ancestor are found included in the disputed holding, it would not retain the character of ancestral holding so as to give a share in it to the claimant on that ground, nor it would be permissible to pick up those plots which are common in both the holdings and treating them as ancestral property declare share of the claimants in those plots.
10. In the present case, not only the Consolidation Officer and the Settlement Officer Consolidation but also the Deputy Director of Consolidation found that there is variation in area and period of tenancy and some of the plots of the old holding have gone out and new plots have been included in these disputed holdings. Still the Deputy Director of Consolidation picked up those plots which were common in the old as well as disputed holding and treated them as ancestral property on the ground that the said plots have come down in identical form. The view taken by the Deputy Director of Consolidation is patently illegal. It is unbroken identity of the entire holding which has to be considered and not that of i the individual plots. If there is variation in area or some of the plots of old holding are not there in the disputed holding or new plots are included in the holding and there is variation in rent or duration of tenancy the identity of the holding stands changed and it cannot be treated as ancestral holding for the reason that these changes are indicative of fresh settlement.
11. In view of the aforesaid discussions, the impugned judgment of the Deputy Director of Consolidation giving co-tenancy right over some of the plots of the disputes khatas to the contesting respondents No. 3 and 4 can not sustained and is hereby quashed.
12. Writ petition No. 5788 of 1973 stands allowed and writ petition No. 7229 of 1973 must fail and is, hereby dismissed.
13. However, in the facts and circumstances of the cas e, there shall be no order as to costs.