K.N. Misra, J. - (1.) In the present writ petition the dispute relates to land of Khata No. 10 situated in village Sujawalpur, pargana Birhar. tehsil Tanda, district Faizabad, which was recorded in the basic year Khatauni in the name of Jaddu son of Nihal, the opposite party No. 3. This Khata No. 10 contains plot Nos. 292, 289/3 and 289/4. An objection was filed by petitioners Sanehi and Jawahar under Section 9-A(2) of the U.P. Consolidation of Holdings Act (for short the Act) claiming co-tenancy rights in the aforesaid holding on the ground that it is ancestral land and they have got ⅓rd share each and that the remaining ⅓rd share belongs to opposite party No. 3, Jaddu. The case was contested by opposite party No. 3, with the allegation that the land in dispute is not ancestral and that the petitioners have got no right. title or interest in it nor they are in possession over the same. It appears that during Partal possession of petitioner Jawahar was noted on plots Nos. 289/3 and 289/4, area 7 biswas and 10 biswansis. An objection was filed by Jaddu against Jawahar in respect of said plots for the expunction of the entry regarding possession in his name and for a declaration that he is sole Bhumidhar of the land in dispute. In para 1 of this objection, a copy of which has been annexed as Annexure No. 5 to the rejoinder affidavit, it was averred by Jaddu that the aforesaid disputed plots are ancestral coming down from the time of their father and grand father (pusht-dar-pusht) and that he is in possession as Bhumidhar over the said plots. The Consolidation Officer, after taking evidence of the parties, allowed the objection of the petitioner vide order dated 28-11-1975 holding them to be co-tenure holders along with opposite party No. 3 in the disputed holding having ⅓rd share each and the remaining ⅓rd share belonged to opposite party No. 3. Aggrieved by that order opposite party No. 3 preferred appeal which was heard and allowed by the Assistant Settlement Officer, Consolidation vide order dated 23-3-1976 holding opposite party No. 3 to be sole tenure holder of the disputed holding. Against this order, the petitioners preferred revision which was dismissed by the Deputy Director of Consolidation vide order dated 8-3-1978 confirming the finding recorded by the Assistant Settlement Officer, Consolidation. The petitioners have challenged these orders in this writ petition.
(2.) Learned counsel for the petitioners contended that the land of the holding in dispute Khata No. 10 is ancestral, and as such, the petitioners had ⅓rd share each. He pointed out that the pedigree which is mentioned in para 4 of the writ petition has not been disputed. It is mentioned below :
(3.) During pendency of the writ petition. Jawahar died and his heirs were brought on record. Learned counsel for the petitioners referred to the order passed by the Assistant Settlement Officer, Consolidation and pointed out that in Khatauni 1337F the name of common ancestor Gajodhar was recorded on plots Nos. 292, 293 and 289 with a duration of eight years, and in 1359F the plots in dispute, namely, plots Nos. 292 and 289 were recorded in the name of Jaddu son of Nihal. It was, thus, contended by him that these plots belonged to the common ancestor Gajadhar, and, as such, the petitioners have got ⅓rd share each in these plots. His further contention was that in a case of claim of co-tenancy rights, question of possession was not very material because possession of one tenant would be deemed in law to be possession of another tenant. Learned counsel, thus, contended that opposite parties Nos. 1 and 2 legally erred in not giving ⅓rd share to the petitioners Nos. 1 and 2.;