Hon’ble Krishna Murari, J.—Dispute in the present writ petition relates to Khata No. 6 which was recorded in the name of Raghunandan, Raghubir and Brijnandan, the predecessor-in-interest of the petitioners.

Admitted pedigree of the parties to the dispute is as under :

Gajadhar

Parmeshwar Rameshwar

Phunni Omprakash Mahendra Nagendra

Raghubir Raghunandan Brijnandan Chandi

Prabhu Sargun Jant Jata

2. During consolidation operation, an objection under Section 9-A (2) of U.P. Consolidation of Holdings Act was filed by contesting respondents claiming co-tenancy rights to the extent of half share on the ground that khata in dispute was ancestral and joint family property. The case was contested by the petitioners asserting that khata in dispute was neither ancestral nor joint family property but was acquired exclusively by their ancestor. Consolidation Officer vide order dated 3.10.1974 allowed the objection of opposite parties holding them to be co-tenure holders to the extent of half share. Appeal and revision filed by petitioners were dismissed by Settlement Officer Consolidation and Deputy Director of Consolidation vide order dated 21.5.1975 and 29.2.1980 respectively. All the three Courts have held that khata in dispute was acquired jointly and there was no evidence of partition in the family till the time khata in dispute was acquired as such the contesting respondents are entitled to co-tenancy rights to the extent of half share.

3. I have heard learned Counsel for the parties.

4. Sri H.O.K. Srivastava, learned Counsel appearing for the petitioners has urged that the view taken by all the three consolidation authorities that even though the khata in dispute was recorded in the name of petitioners’ branch but since the family was in state of jointness as such contesting respondents are entitled to co-tenancy rights to the extent of half share is erroneous in law. It has further been urged that there being no revenue entries to demonstrate that khata in dispute ever recorded in the name of common ancestor, the claim of the contesting respondent of co-tenancy was liable to be dismissed. It has further been pointed out that even though Settlement Officer Consolidation and Deputy Director of Consolidation both found that identity of land in dispute had changed and it has not come down in identical form even then consolidation authorities wrongly and illegally gave co-tenancy rights to the contesting respondents.

5. In reply, it has been submitted by Sri M. D. Mishra, learned Counsel appearing for contesting respondents that since the name of Permeshwar was recorded over half share of khata in dispute in 1344 fasli and there was no evidence regarding his ejectment or resettlement with the petitioners and also the family being in the state of jointness, contesting respondents have rightly been held to be co-tenant to the extent of half share.

6. It is well settled principle that in order to entitle a party to claim co-tenancy rights in holding on the ground of it being ancestral, the unbroken identity of holding has to be established through the period and if the identity has changed the claim cannot succeed. Reference may be made to the following observations of the Hon’ble Apex Court in a recent judgment in the case of Dharamraj and others v. Chhitan and others, 2007 (102) RD 73 wherein in paragraph 24, it has been observed as under :

“24. Such being the position, it must be held that the respondent Nos. 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 had 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. T