JUDGMENT

H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated January 7, 1972 passed by Sri R.K. Garg, Additional Commissioner, Allahabad setting aside the decree of the trial court dated December 22, 1969 in a case under Sec. 229-B of the UPZA and LR Act.

2. I have heard the learned counsel for the parties, and have gone through the record.

3. Bhaiya Ram Salik Ram, Baijmat, Parbhoo and Parsoo, respondents 1 to 5 filed a declaratory suit claiming half share in plot No. 434-M which was a grove and was ancestral property and one Behari was the common ancestor, Panna Lal and Manohar, respondents 6 and 7 contested the suit by claiming that the land did not come down from Behari, but was acquired by on Jethu, who was the grandson of Behari and that they were the descendants of the original landholder. They further stated that they had since sold off the land and had no connection with it. Smt. Balwanti, resent appellant also contested the suit by claiming that the land in question had been acquired by Jethu and his brothers Ram Swarup and Ram Jatan. She also alleged that Panna Lal and Ram in respect of the land in suit in her favour and thereafter she as vendee was in possession. The trial court dismissed the suit holding that Smt. Balwanti was the sole Bhumidhar. The Additional Commissioner set aside the trial court's order and declared the plaintiff to be co-Bhumidhar along with Smt. Balwanti who had share. Smt. Balwanti has come up in second appeal.

4. The main grounds taken in the second appeal are that the learned lower appellate court overlooked that most important document, i.e., the settlement entry of 1320 F in which the predecessors in interest of the appellant are alone recorded and that this entry is also corroborated by the entry of 1333 F, that the entries of 1320 F settlement and 1330 F have strong presumption and cannot be rebutted by a pre-settlement entry and also that the identity of the holding of 1282 F has been broken.

5. The Khasra of 1320 shows that plot No. 434 was previously numbered as 666. In the Khatauni of 1282 F Behari is recorded as the sub-tenant of plot No. 666. In the Khatauni of 1320 F. however, only Ram Swarup. Ram Ratan and Jethu are recorded as tenants of this plot. This is also the position in Khatauni of 1333 F. In Khatauni of 1973-75 F. Pannal Lal and Ram Manohar who are sons of Ram Jatan and Jethu are recorded as Bhumidhars of the plot. Now according to the plaintiff-respondents the common ancestor Behari had two sons Shital and Gangoo and they themselves are the descendants of Gangoo whereas Panna Lal and Ram Manohar are the descendants of Shital. The point to be considered is whether the holding had come down intact from the common ancestor so as to give rise to co-tenancy considerable confusion prevails on the question whether common ancestry alone is enough to give rise to a co-tenancy. Strictly speaking the correct procedure is that on the death of recorded tenures-holder the names of all his heirs should be mutated. There is no provision in the revenue law or in the Land Records Manual that the name of one or some of the heirs should be recorded in a representative capacity and the name of other heirs should be omitted. However, cases may arise of such omissions and where the omission is proved and it is also proved that the heirs were living together as members of a joint Hindu Family, the benefit of co-tenancy can be given to all the heirs even if their names are not recorded. This, however, cannot be stretched to mean that all the descendants of a common ancestor may claim co-tenancy merely on the basis of common-ancestry even if they are neither in possession nor are living jointly. As a joint Hindu Family branches out, there is a tendency for the division of the family as well as of its property and there can be no legal presumption that if a family was joint hundred years ago it will also be joint hundred years later. The criteria for a co-tenan