Hon’ble Sanjay Misra, J.—The petitioner Mangru (now substituted by his heirs and legal representatives) filed objection under Section 9(2) of the U.P. Consolidation of Holdings Act 1953 (hereinafter referred to as the Act) claiming half share in Khata No. 80 situate in Gaurirai, Tappa Patna, Pargana Bansi Purab, Tehsil and District Basti. All the three Consolidation Courts have turned down his claim hence this writ petition.

2. Sri Dinesh Pathak, learned counsel for the petitioner has submitted that the Courts below have accepted the pedigree of the parties and since it was admitted that the land in question was ancestral the petitioner was entitled to half share. He refers to the pedigree reproduced below :

3. According to him, the land in question was recorded in the name of Shiv Dayal and Gherau hence the parties of both the branch had half share each.

4. He further submits that when there is co-tenancy then even if identity and continuity of the land changes from its original form the rights of co-tenancy remain unaffected. The rent receipts issued by the Zamindar prior to abolition of Zamindari clearly established the co-tenancy, hence the findings of the Consolidation Courts are perverse and require to be set aside.

5. Sri Shashi Prakash Misra, learned counsel for the Respondent Nos. 4 and 5 namely Bansraj and Adhare (now substituted by their heirs and legal representatives) has argued that once there is re-settlement of land amongst the co-sharers then the identity and continuity changes and co-tenancy rights stood extinguished. He states that there was a partition between the two branches and Shiv Dayal and Gherau acquired rights over their respective plots. He argues that Plot Nos. 99 and 256 were allotted to the petitioner hence the Respondent Nos. 4 and 5 did not file any objection upon start of consolidation proceedings although even these two plots were coming from the common ancestor. According to him, the identity and continuity of the land had changed upon re-settlement between the parties hence the petitioner cannot claim co-tenancy rights in the land in question i.e. Khata No. 80. He clarifies that Khata No. 80 has several plots.

6. The Consolidation Officer vide his judgment dated 30.5.1974 has rejected the objection of the petitioner and has maintained the entries in the record as they existed. He had framed three issues for determination i.e. whether Mangru is co-tenant of the land, whether Bansraj and others are the sole owners of the land and what is the share of the parties in Khata No. 80.

7. Mangru the petitioner himself deposed as a witness and produced the khatauni 1324F, 1376F to 1379F, Khasra 1324F and receipt issued by the Zamindar evidencing payment of Lagan (Rent). On behalf of the Respondent Nos. 4 and 5 only Motiram son of Bansraj deposed as a witness. He accepted the pedigree shown by the petitioner Mangru. On the basis of the evidence the Consolidation Officer found that the area of the land had changed due to a partition amongst the brothers and they were allotted separately numbered portions. In 1324F some plots were entered exclusively in the names of the ancestor of the respondents namely Gherau and some plots were jointly recorded in the name of the ancestors of both the parties namely Shiv Dayal and Gherau. The entry in 1376F to 1378F were also recorded separately in the names of the parties. Khata Nos. 99 and 256 were exclusively entered in the name of the petitioner Mangru. There was no evidence filed by the petitioner i.e. Mangru as to how these separate entries in his name and the name of the other branch came into being. Khata No. 80 was exclusively in the name of the Respondent Nos. 4 and 5. He, therefore, concluded that there had been a partition and the Respondent Nos. 4 and 5 were allotted Khata No. 80 hence the objection of the petitioner Mangru was rejected.

8. The petitioner being aggrieved filed an Appeal No. 390 before the Settlement Officer Consolidation who aff