# Bajrangi v. Joint Director Cons. Raebareli

- **Citation:** (2020) 2 ILRA 1250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** Consolidation No. 301 of 1999
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bajrangi-v-joint-director-cons-raebareli-45653
- **Pages:** 11

## Headnote

A . U.P. C & H Act, 1953-Sec-9A(2)-petitioners
objection-alleging-land
in
dispute-ancestral
property-hence filed application for partitiono.p nos. 4 & 5-alleging to have bought the said
land-vide regd. sale deed-as disputed land-self
acquired property of petitioners grand fathernot a joint hindu family property-petitioners
failed to discharge their initial burden of
proving-that it was acquired from the joint
nucleus of the joint hindu family-for the welfare
of the family-impugned orders-rightly passedno illegality-Petition Dismissed.

B. It is well settled proposition that even in the
Joint Hindu Family a member of said family can
acquire land for himself and unless it is proved
that the land was acquired by him in the
representative capacity out of joint family funds
for the benefit of the family it cannot be held to
be joint family land merely because it was
acquired by him when he formed joint family
with other members.

C. Held, since the petitioners were claiming
that land in dispute was acquired by the Joint
Hindu Family, therefore initial burden was upon
the petitioners to prove that it was acquired
from the joint nucleus of the Joint Hindu
Family. But the burden could not be discharged
by the petitioners and they could not prove
that it was purchased from the joint nucleus for
the welfare of the family, therefore, the plea of
the petitioners that the opposite parties no.4
and 5 were required to prove that the jointness
of the family has come to an end is
misconceived and not sustainable in the eyes of
law. In view the aforesaid discussions this
Court is of the considered opinion that the
judgment and order dated 22.06.1987 passed
by
the
Consolidation
Officer
and
dated
11.03.1999 passed by the Joint Director
Consolidation have rightly been passed in
accordance with law after considering the
material and evidence on record. This Court
does not find any illegality or error in the
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1251
orders. The writ petition has been filed on
misconceived grounds having no substance
which is devoid of any merit and is liable to be
dismissed.

Writ Petition dismissed. (E-8)

List of cases cited: -

## Text

1250 INDIAN LAW REPORTS ALLAHABAD SERIES
period of three months from the date of
presentation of a certified copy of this
order. "

10. Be that as it may, considering the
facts and circumstances of the case the
Court grant liberty to the petitioner to
move a detailed representation along with
a certified copy of this order for redressal
of his grievances taking all possible
grounds with supported documents before
the respondent no.3, who shall decide the
same in accordance with law by a
reasoned
and
speaking
order
after
affording an opportunity of hearing to the
petitioner, expeditiously preferably within
a period of three months from the date of
its receipt.

11. It is made clear that the Court has
not adjudicated the claim of the petitioner
on merits and the respondent no.3 is at
liberty to take
a decision on the
representation
of
the
petitioner
in
accordance with law.

12. With the aforesaid observation,
the writ petition is disposed of.
----------
(2020)02ILR A1250

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 301 of 1999

Bajrangi ...Petitioner
Versus
Joint Director Cons. Raebareli
 ...Respondent

Counsel for the Petitioner:
S.C. Padney, Ashok Kr. Mishra, Maneesh
Kumar Singh, Miss Navita Sharma, Navita
Sharma, V.D. Sharma

Counsel for the Respondent:
C.S.C., Vimal K. Verma

A . U.P. C & H Act, 1953-Sec-9A(2)-petitioners
objection-alleging-land
in
dispute-ancestral
property-hence filed application for partitiono.p nos. 4 & 5-alleging to have bought the said
land-vide regd. sale deed-as disputed land-self
acquired property of petitioners grand fathernot a joint hindu family property-petitioners
failed to discharge their initial burden of
proving-that it was acquired from the joint
nucleus of the joint hindu family-for the welfare
of the family-impugned orders-rightly passedno illegality-Petition Dismissed.

B. It is well settled proposition that even in the
Joint Hindu Family a member of said family can
acquire land for himself and unless it is proved
that the land was acquired by him in the
representative capacity out of joint family funds
for the benefit of the family it cannot be held to
be joint family land merely because it was
acquired by him when he formed joint family
with other members.

C. Held, since the petitioners were claiming
that land in dispute was acquired by the Joint
Hindu Family, therefore initial burden was upon
the petitioners to prove that it was acquired
from the joint nucleus of the Joint Hindu
Family. But the burden could not be discharged
by the petitioners and they could not prove
that it was purchased from the joint nucleus for
the welfare of the family, therefore, the plea of
the petitioners that the opposite parties no.4
and 5 were required to prove that the jointness
of the family has come to an end is
misconceived and not sustainable in the eyes of
law. In view the aforesaid discussions this
Court is of the considered opinion that the
judgment and order dated 22.06.1987 passed
by
the
Consolidation
Officer
and
dated
11.03.1999 passed by the Joint Director
Consolidation have rightly been passed in
accordance with law after considering the
material and evidence on record. This Court
does not find any illegality or error in the
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1251
orders. The writ petition has been filed on
misconceived grounds having no substance
which is devoid of any merit and is liable to be
dismissed.

Writ Petition dismissed. (E-8)

List of cases cited: -

1. (Smt.) Dharmawati Tiwari and Others Vs. Prem
Shanker Tiwari and Others; 1999 (17) LCD 81.

2. Sheo Nath Vs. Deputy Direction of Consolidation
and Others, 2010 (109) RD 679;

3. Sonu & Rahul Vs. Board of Revenue and Others,
2014 (123) RD 323

4. Shiva Nath Vs. Deputy Director of Consolidation,
Varanasi and Others and 2007 (25) LCD 1420;

5. Ruchha and Others Vs. Deputy Director of
Consolidation, Gorakhpur and Others.

6. Shrinivas Krishnarao Kango Vs. Narayan Devji
Kango; AIR 1954 SC 379

7. Appasaheb Peerappa Chamdgade v. Devendra
Peerappa Chamdgade;(2007) 1 SCC 521

8. K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna
Iyer;AIR 1965 SC 289

9. Rukhmabai Vs. Lala Laxminarayn; AIR 1960 SC
335

10. Achuthan Nair vs Chinnamu Amma; AIR 1966
SC 411

11. Surendra Kumar vs Phoolchand (Dead) Through
Lrs.; (1996) 2 SCC 491.

12.
D.S.
Lakshmaiah
&
Another
Vs.
L.
Balasubramanyam & Another; AIR 2003 SC 3800

13. Makhan Singh (D) By Lrs vs Kulwant Singh;
(2007) 10 SCC 602.
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Ms. Navita Sharma, learned
counsel for the petitioner, learned Standing
Counsel and Shri Vimal Kishore Verma,
learned counsel for the opposite parties no.4
and
5.

2. This writ petition has been filed
challenging the judgment and order dated
11.03.1999 and 22.06.1987 passed by the
opposite parties no.1 and 2 respectively.

3. The brief facts of the case for
adjudication of the case in hand are that
the petitioners had filed the objections
under Section 9-A (2) of the U.P.
Consolidation of Holdings Act, 1953
(here-in-after referred as the Act of 1953)
on 16.09.1985 alleging therein that the
land of the alleged Khata No.414 is their
ancestral property. It was earned jointly by
three real brothers namely Lachhiman,
Bhagwati and Raj Bahadur. Lachhiman
was the eldest and Karta of the family
therefore his name was recorded. It was
submitted that they have 1/3rd share, upon
which they are in possession and are
cultivating the same. They are co-sharers
in the aforesaid Khata No.414 having
numbers 1389 and 1045 situated at Gram
Chilauli, Pargana Mohandganj, District-
Raebareli. The opposite parties no.4 and 5
had also filed their objections under
Section 9-A (2) of the Act of 1953 alleging
therein that the disputed land was self
acquired by Lachhiman from his own
income after separation. His brothers have
no share in the said land. They have
received the said land through a sale deed
from
Lachhiman
and
they
are
in
possession after the sale deed and mutation
and are Bhumidhar. Accordingly, they
denied the rights and title of the petitioners
and others and prayed for the rejection of
the request for partition and to continue
the entry in the name of the opposite
parties no.4 and 5.
1252 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The statement of witnesses
examined on behalf of the petitioners Lal
Pratap Singh as PW-1 on 24.12.1995, Ram
Baran Singh as PW-2 on 27.01.1986 and
Bajrangi as PW-3 on 23.04.1986 were
recorded. On behalf of the opposite parties
no.4 and 5 also three witnesses were
examined namely Devi as DW-1 on
27.05.1986,
Kodau
as
DW-2
on
01.07.1986 and Satya Narain as DW-3 on
23.02.1987. The consolidation officer after
hearing the parties and considering the
evidence
and
records
rejected
the
objections of the petitioners and provided
that it shall remain entered in the name of
Satya Narain etc. by means of the order
dated
22.06.1987.
The
petitioners
preferred
an
appeal
number
1558/893/616/378 under Section 11 (1) of
the Act of 1953 before the Settlement
Officer Consolidation, Raebareli. He, after
hearing the learned counsel for the parties
and examining the evidence available on
record, allowed the appeal and set-aside
the order dated 22.06.1987 by means of
the judgment and order dated 08.03.1990.
It was further provided that in Khata
No.414 the names of the petitioners be
also recorded alongwith the opposite
parties no.4 & 5.

5. Being aggrieved the opposite parties
no.4 and 5 preferred a Revision No.930/301
under Section 48 of the Act of 1953 before the
Joint Director Consolidation. The Joint
Director Consolidation, after hearing the
learned counsel for the parties and considering
the material available on record, allowed the
revision and set-aside the order passed by the
Settlement
Officer
Consolidation
dated
08.03.1990 and maintained the order dated
22.06.1987 passed by the Consolidation
Officer with observation of correction of
records by means of the judgment and order
dated 11.03.1999. Hence the present writ
petition has been filed under Article 226 of the
Constitution of India challenging the orders
dated 11.03.1999 and 22.06.1987.

6. Submission of learned counsel for the
petitioners was that the grandfather of the
petitioners nos.2 and 3 and great grandfather of
the petitioners nos.1/2 and 1/3 namely Lala
had three sons; Lachhiman, Bhagwati and Raj
Bahadur. After death of Lala, all the three sons
of Lala inherited the property jointly however
Lachhiman was the karta of the family. He,
with the intention that all property may not be
divided among his brothers, executed a
registered will of plot Nos.1389 and 1405 in
favour of their grand sons i.e the opposite
parties no.4 and 5 while the said land was
allotted to him as karta of the Joint Hindu
Family being eldest brother. Since the said
property was allotted to him as karta of the
Joint Hindu Family, therefore the same was
also liable to be divided equally. But all the
properties were divided and recorded in their
names according to their shares except the
aforesaid property in despute. Since the shares
of the petitioners in the said land was not
recorded in their names therefore, the
petitioners had filed objections under Section
9-A (2) of the Act of 1953 in regard to the land
Nos.1389 and 1405 having Khata No.414. Lal
Pratap Singh, who was examined as PW-1 on
24.12.1985, had stated in his evidence that the
partition had taken place before 24-25 years
while the said land was allotted in the name of
Lachhiman prior to that, therefore it was a
property of the Joint Hindu Family and was
liable to be partitioned equally.

7. She had further stated that the
opposite party no.4 has also stated in his
evidence that Lachhiman had died in 1980
and he had no knowledge that how he had
acquired the said property but it was a self
acquired property. He has stated this on
the basis information given by villagers.
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1253
The witnesses have also stated that
Lachhiman was residing in the village
while Bhagwati and Raj Bahadur lives out
and they used to send money to
Lachhiman, out of which he had acquired
the property. She had further stated that
since the opposite parties no.4 and 5 are
claiming that it was the self acquired
property of Lachhiman, therefore the
burden was on them to proof that it is a
self acquired property of Lachhiman and
he had some other source of income but
their burden has not been discharged. She
had also submitted that the opposite party
no.5 was minor at the time of sale deed
and the proof of the payment of the
consideration has also not been submitted.
Therefore the circumstances also indicate
that the sale deed was executed by late
Lachhiman just to save the land in dispute
from being partitioned. The learned
Consolidation Officer and Joint Director
Consolidation failed to consider the
evidence and the material on record in its
correct perspective and wrongly rejected
the objection and the revision. The learned
Settlement Officer Consolidation had
rightly considered the evidence of Lal
Pratap Singh, PW-1 and considering that
the opposite parties no.4 and 5 are the
legal
successor
of
late
Lachhiman,
therefore there was no occasion for
executing the sale deed even then the sale
deed has been executed in regard to the
land in dispute with cleverness to remove
his doubt that it may not be divided among
all treating it to be ancestral properly.

8. On the basis of above, learned
counsel for the petitioners has submitted
that the judgment and orders dated
11.03.1999 and 22.06.1987 passed by the
opposite parties no.1 and 3 respectively
are liable to be quashed and the names of
the petitioners are also liable to be
recorded
in
Khata
No.414
(Supra)
alongwith opposite parties no.4 and 5. She
had relied on a judgment of this Court
passed in the case of (Smt.) Dharmawati
Tiwari and Others Vs. Prem Shanker
Tiwari and Others; 1999 (17) LCD 81.

9. Per contra, learned counsel for the
opposite parties no.4 and 5 does not
dispute the pedigree given by the learned
counsel for the petitioners. However he
had submitted that the land in dispute was
a self acquired property of late Lachhiman.
He had acquired the land in dispute from
the Zamindar and one of the receipt dated
10.12.1948 has been filed as CA-1.

10. Subsequently, the said land was
allotted to late Lachhiman as is apparent
from the allotment order of old Gata
No.2006-2007.
During
consolidation
operations the land in dispute were
changed and new Gata Nos.1389 and 1405
respectively
were
allotted
which
is
apparent from CH form 41 of the land in
dispute. Late Lachhiman had deposited 20
times of rent on 19.08.1976 and became
Bhumidhar of land in dispute with
transferable
rights.
Thereafter,
late
Lachhiman had executed a registered sale
deed in favour of the opposite parties no.4
and 5 on 24.08.1976 and the mutation was
also made in their favour. He also
submitted that it is also apparent from the
perusal of the Khatauni of the 1382 to
1384 that the names of the opposite parties
no.4 and 5 were recorded in the year 1976.
As such the opposite parties no.4 and 5
had rightly filed objection under Section 9A (2) of the Act of 1953. He had also
invited the attention of the Court towards
CA-7 and CA-8 Khasra barasala of 1372
to 1883 fasli and 1378 to 1389 Fasli to
show that the late Lachhiman and
thereafter the opposite parties no.4 and 5
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
are in possession of the land in dispute.
The opposite parties no.4 and 5 have also
deposited the rent of the land in dispute in
regard to which the rent receipt and the
Kisanbahi have also been filed.

11. On the basis of the above, the
learned counsel for the opposite parties
no.4 and 5 submitted that they have filed
ample evidence to show that it was self
acquired property of late Lachhiman and
after the registered sale deed executed by
him the names of opposite parties no.4 and
5 are recorded and they are in possession
and cultivating. But the petitioners have
failed to file any documentary evidence
such as khasra and the receipts etc. of the
land in dispute to show that it was a joint
family property and as claimed by them
they are in possession of the part of the
land. While as per the evidence adduced
by the petitioners the two brothers of late
Lachhiman namely Bhagwati was residing
in Pakistan and thereafter in Bombay and
Raj Bahadur was residing in Bombay,
therefore there was no question of their
being entered into possession.

12. Lastly he submitted that it was not a
property owned by a Joint Hindu Family and
purchased from a joint nucleus of the joint
family because it was a self acquired property
of late Lachhiman. Therefore he has rightly
executed sale deed of the property in favour of
the opposite parties no.4 and 5. The opposite
parties no.1 and 3 have rightly decided the
objections in favour of the opposite parties
no.4 and 5 but the opposite party no.2 has
wrongly and in an illegal manner, merely on
the basis of presumption had allowed the
objections filed by the petitioners. The writ
petition has been filed on misconceived and
baseless grounds which is not tenable in the
eyes of law and is liable to be dismissed with
costs.

13. Learned counsel for the opposite
parties had relied on 1983 RD page 107; Sheo
Nath Vs. Deputy Direction of Consolidation
and Others, 2010 (109) RD 679; Sonu &
Rahul Vs. Board of Revenue and Others,
2014 (123) RD 323 Shiva Nath Vs. Deputy
Director of Consolidation, Varanasi and
Others and 2007 (25) LCD 1420; Ruchha
and
Others
Vs.
Deputy
Director
of
Consolidation, Gorakhpur and Others.

14. I have considered the submissions of
learned counsel for the parties and perused the
records.

15. The pedigree as given by the
Deputy Director of Consolidation in his
judgment and order dated 11.03.1999
passed in Revision No.9301/301 (Satya
Narain and Another Vs. Bajrangi &
Others)
under
Section
48
of
the
Consolidation of Holdings Act and the
Consolidation Officer in his order dated
22.06.1987 is not disputed to the parties.
As per pedigree Lala had three sons
namely Lachhiman, Bhagwati and Raj
Bahadur. As stated in the evidence by the
witnesses of the petitioners Bhagwati was
residing in Pakistan and Raj Bahadur in
Bombay. Subsequently Bhagwati came
back to India and was residing in Bombay.
But the Lachhiman, undisputedly was
residing in the village where the land in
dispute being Gata No.1389 and 1405 is
situated and recorded in his name and
thereafter in the names of the opposite
parties no.4 and 5 in the Khatauni of basic
year. The old Gata number of the aforesaid
land was 2006 and 2007 which is apparent
from the CH form 41 of village Chiluli,
Pargana-
Mohandganj,
Tehsil
Salon,
District- Raebareli contained in Annexure
No. CA-3 to the counter affidavit.
Undisputedly the said land was allotted to
late
Lachhiman
by
the
Zamindar.
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1255
Subsequently the same was allotted to him
which is apparent from annexure No.CA-2
which has also not been disputed by the
petitioners. It is also not in dispute that late
Lachhiman had got the land in dispute
converted
into
Bhumidhari
with
transferable rights after depositing 20
times rent on 19.08.1976, a copy of the
receipt has been filed as annexure No.CA4.

16. The dispute which has been
raised is that the land in dispute was
acquired by late Lachhiman being karta of
a Joint Hindu Family as he was eldest
among three sons of Lala therefore it
should also be divided. But the petitioners,
though
filed
objections
during
the
Consolidation Operations on 16.09.1985
with a prayer for recording their names as
co-sharers, but failed to produce any
evidence that there was Joint Hindu
Family and any joint nucleus from which
the land in dispute was acquired.

17. One of the witnesses produced by
the petitioners namely Lal Pratap Singh
has stated that whatever evidence he is
giving it is on the basis of information
gathered from others in the village. But he
had not clarified as to whether all the three
brothers were living together as a Joint
Hindu Family and the land in dispute was
acquired from any joint nucleus. He had
also stated that he has no knowledge of
being any patta in favour of Lachhiman
etc. He had also stated that Bhagwati was
earlier residing in Karanchi, Pakistan
thereafter he came to Bombay and Raj
Bahadur was residing in Bombay. The
learned Consolidation Officer had rightly
recorded
that
this
witness
had
no
knowledge about acquiring the land in
dispute and his evidence is not reliable.
Other witness Bajrangi had also stated that
the separation of the three brothers had not
taken place before him. He also could not
prove that the land in dispute was acquired
by the joint family from any joint nucleus
for the benefit of the family. He had also
stated that Bhagwati and Raj Bahadur
were living out and they used to send
money to late Lachhiman but no proof
thereof has been filed.

18. One of the arguments was that
the family was a joint Hindu family and
the said property was acquired by
Lachhiman as karta of family. For treating
a property to be a Joint Hindu Family
property it was required to be proved that
there was a Joint Hindu Family and some
joint nucleus from which the land in
dispute was acquired for welfare of the
family but no such evidence was adduced
or pointed out during argument before this
court. All the three brothers were also
living separately when the property was
acquired by Lachhiman as the two brothers
were living out. No proof or reliable
evidence has also been adduced that they
used to send money. A plea was also
raised that the petitioners are in possession
on their part of land in dispute and paying
land revenue but no evidence in proof
thereof has also been filed.

19. On the other hand, from the
evidence and material on record it is
apparent that the land revenue of the land
in dispute was paid by the Lachhiman to
Zamindar. Subsequently the same was
allotted to him by means of the allotment
order. The land in dispute was got
converted
by
late
Lachhiman
after
depositing 20 times of rent on 19.08.1976
and he had become Bhumidhar with
transferable rights of the land in dispute.
Thereafter, he had executed a registered
sale deed on 24.08.1976 in favour of the
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite parties no.4 and 5 for a
consideration of Rs.5000. In pursuance
thereof the names of the opposite parties
no.4 and 5 were also recorded in the
revenue records which is apparent from
Khatauni of 1832 to 1834 contained in
annexure No.CA-6. It is also apparent
from the documents of 12 years filed by
the opposite parties no.4 and 5 that earlier
the name of Lachhiman was recorded and
subsequently the names of opposite parties
no.4 and 5 has been recorded and they are
paying the land revenue. No objection was
raised in the first consolidation operations
and the sale deed was also not challenged
as admitted by the learned counsel for the
petitioners .

20. It was submitted that even if the
objection was not raised in the first
consolidation
that
can
be
raised
subsequently. But for that it was required
to be proved by cogent evidence that the
land in dispute was acquired living in the
Joint Hindu Family and from joint fund
and for the welfare of the joint family but
no such evidence could be adduced by the
petitioners. They also could not adduce
any evidence in regard to their alleged
possession on the part of the land in
dispute. One thing is also very material
that admittedly Raj Bahadur was alive at
the time of filing of objections and PW-1;
Lal Pratap Singh had admitted in his
evidence on 24.12.1985 that he is alive but
Raj Bahadur had neither filed any such
objection before the Consolidation Officer
nor he was produced in evidence by the
petitioners to prove that it was a Joint
Hindu Family and the property in dispute
was acquired from any such joint fund for
the welfare of the family. He could be a
material witness for proving the contention
of the petitioners but he was not produced.

21. The Consolidation Officer, after
considering
the
pleadings
and
the
evidence, had rejected the objections of
the petitioners in regard to Khata No.414
as the petitioners had failed to prove their
case. But the learned Settlement Officer
Consolidation, wrongly interpreting the
evidence of Lal Pratap Singh PW-1 and
merely on presumption, that since the
opposite parties no.4 and 5 would have
acquired land in dispute otherwise also
being legal heirs of Lachhiman therefore
there was no need of executing sale deed
in their favour and it has been executed on
the apprehension that the land in dispute
may also not be divided, treated it to be an
ancestral property and directed to record
the names of the petitioners alongwith
opposite parties no.4 and 5. But failed to
consider that if it was a property of the
Joint Hindu Family then the name of Raj
Bahadur should also have been recorded
and if he was not alive it should have been
recorded and his share should have been
divided among others.

22. On challenge being made to the
order passed on appeal by the Settlement
Officer
Consolidation
the
Deputy
Direction
of
Consolidation
after
considering the evidence and material on
record has rightly recorded that if the
petitioners were claiming to be a joint
Hindu property then the burden was on
them to prove that there was any joint fund
of family from which the land in dispute
was acquired for the interest of the joint
family and rightly allowed the revision in
accordance with law and set-aside the
judgment and order passed by the
Settlement Officer Consolidation dated
08.03.1990 and maintained the order dated
22.06.1986 passed by the Consolidation
Officer. Learned revisional court has also
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1257
recorded that the copies of the Khasra etc.
filed by the respondents are in their favour.

23. This court in the case of Sheo
Nath Vs. Deputy Director Consolidation
and Others (Supra) has held that if a
holding is entered in the name of one or
more members of the family and another
member claims a share in the holding the
burden of proving that the holding was
joint family property and the name of
recorded person or persons was in the
representative capacity lies heavily on the
claimant. It has further been held that the
law is fairly settled that the member of the
joint family or even a Karta of the joint
family can acquire property himself and
own his name and the other members of
the family would have no interest or share
in it if he has acquired it from his own
fund.

24. This Court in the case of Sonu &
Rahul Vs. Board of Revenue and Others
(Supra) has held that rights of a
Bhumidhar are transferable and this power
of transfer is only subject to the provisions
of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 and under
the said act the principles of coparcenary
property are not applicable to Bhumidhari
rights. It has also been held that in absence
of any material it could not be shown that
the family had any nucleus or Joint Hindu
Family fund. The relevant paragraphs 3, 4,
5 are reproduced as under:-

"(3) The only point urged by the
learned counsel for the petitioners is that
the land in dispute was purchased by
Chandra Shekhar out of Joint Hindu
Family fund and as such the petitioners
were not even born on the date of the sale
deed. There is no material on record to
show that the said family had any nucleus
or Joint Hindu Family fund. The sale deed
stands in the name of Sri Chandra Shekhar
alone.

(4) A Division Bench of this
Court in the case of Mahendra Singh Vs.
Attar Singh and Others, has held that the
Bhumidhari rights are special rights
created by Act I of 1951 and these new
rights are solely to be governed by the
provisions of the Act. The notions of Hindu
Law or Mohammedan Law which would
be applicable to other property not
governed by any special law can not be
imported into the rights created by this
Act.

(5) By Section 152 of the U.P.
Zamindari Abolition and Land Reforms
Act,
rights
of
a
Bhumidhar
are
transferable and this power of transfer is
only subject to the provisions of this Act,
Under the Act the principles coparcenary
property are not applicable to Bhumidhari
rights."

25. This Court in the case of of Shiva
Nath
Vs.
Deputy
Director
of
Consolidation,
Varanasi
and
Others
(Supra) after considering the judgments of
the Hon'ble Apex Court has held that the
initial burden is on the person who claims
that it was joint family property but after
initial discharge of the burden it shifts to
the party who claims that the property has
been acquited by him through his own
source without the aid of the joint family
property and there can be no presumption
in law that a property purchased in the
name of a member of a family had ipso
facto the character of Joint Hindu Family
property unless it could be shown that the
family possessed a nucleus for the
purchase of the same.

26. The Hon'ble Apex Court in the
case of Shrinivas Krishnarao Kango Vs.
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
Narayan Devji Kango; AIR 1954 SC 379
has held that so far as the proposition of
law is concerned, the initial burden is on
the person who claims that it was joint
family property but after initial discharge
of the burden, it shifts to the party who
claims
that
the
property
has
been
purchased by him through his own source
and not from the joint family nucleus.

27. The Hon'ble Apex Court in the
case of Appasaheb Peerappa Chamdgade
v. Devendra Peerappa Chamdgade;(2007)
1 SCC 521 after considering other
decisions has held that on survey of the
aforesaid decisions what emerges is that
there is no presumption of a Joint Hindu
Family but on the evidence if it is
established that the property was Joint
Hindu Family property and the other
properties were acquired out of that
nucleus and if the initial burden is
discharged by the person who claims Joint
Hindu Family, then the burden shifts to the
party alleging self-acquisition to establish
affirmatively
that
the
property
was
acquired without the aid of the joint family
property
by
cogent
and
necessary
evidence.

28. The Hon'ble Apex Court in the
case of K.V. Narayanaswami Iyer Vs.
K.V. Ramakrishna Iyer;AIR 1965 SC 289
has held that it is well settled that in case
on the date of acquisition of a particular
property the joint family had sufficient
nucleus for acquiring it, the property in the
name of any family member of the joint
family should be presumed to be acquired
from out of family funds and so form part
of the joint family property.

29. The Hon'ble Apex Court in the
case
of
Rukhmabai
Vs.
Lala
Laxminarayn; AIR 1960 SC 335 has held
that there is a presumption in Hindu law of
jointness of family but there is no
presumption that any property whether
movable or immovable held by a member
of a Joint Hindu Family is joint family
property. The burden lies upon the person
who asserts that a particular property is
joint family property to establish that fact
and if he proves that there was sufficient
joint family nucleus from and out of which
the said property could have been
acquired, the burden shifts to the member
of the family who is claiming to have
acquired without any assistance of the
joint family property. The same view has
been taken by the Hon'ble Apex Court in
the case of Achuthan Nair vs Chinnamu
Amma; AIR 1966 SC 411 and Surendra
Kumar vs Phoolchand (Dead) Through
Lrs.; (1996) 2 SCC 491.

30. The Hon'ble Apex Court in the
case of D.S. Lakshmaiah & Another Vs.
L. Balasubramanyam & Another; AIR
2003 SC 3800 has observed that a property
could not be presumed to be Joint Hindu
Family merely because of the existence of
a Joint Hindu Family and raised an
ancillary question in paragraph-7 and
answered the same in paragraph-18. The
same are extracted below:-

"7.
The
question
to
be
determined in the present case is as to who
is required to prove the nature of property
whether it is joint Hindu family property
or self-acquired property of the first
appellant.

18.
The
legal
principle,
therefore, is that there is no presumption
of a property being joint family property
only on account of existence of a joint
Hindu family. The one who asserts has to
prove that the property is a joint family
property. If, however, the person so
2 All. Bajrangi Vs. Joint Director Cons. Raebareli
1259
asserting proves that there was nucleus
with which the joint family property could
be acquired, there would be presumption
of the property being joint and the onus
would shift on the person who claims it to
be self-acquired property to prove that he
purchased the property with his own funds
and not out of joint family nucleus that
was available."

The same has also been followed by
the Hon'ble Apex Court in the case of
Makhan Singh (D) By Lrs vs Kulwant
Singh; (2007) 10 SCC 602.

31. This Court in the case of Ruchha
and Others Vs. Deputy Director of
Consolidation, Gorakhpur and Others
(Supra) has held that it is well settled
proposition that even in the Joint Hindu
Family a member of said family can
acquire land for himself and unless it is
proved that the land was acquired by him
in the representative capacity out of joint
family funds for the benefit of the family it
can not be held to be joint family land
merely because it was acquired by him
when he formed joint family with other
members.

32. In the present case since the
petitioners were claiming that land in
dispute was acquired by the Joint Hindu
Family, therefore initial burden was upon
the petitioners to prove that it was
acquired from the joint nucleus of the Joint
Hindu Family. But the burden could not be
discharged by the petitioners and they
could not prove that it was purchased from
the joint nucleus for the welfare of the
family.

33. The judgment relied by the
learned counsel for the petitioners in the
case of (Smt.) Dharmawati Tiwari and
Others Vs. Prem Shanker Tiwari and
Others (Supra) is not of any assistance to
the case of the petitioners because in that
case also the trial court after considering
all relevant aspect of the controversy viz.
continuity of jointness till the house in
dispute is acquired, availability of nucleus
of the joint family for purchase of the
house in dispute, treatment and conduct of
the parties with respect to the property in
dispute while raising a presumption of
jointness of the family had placed the
burden upon the shoulder of the contesting
respondents to prove that jointness of the
family came to an end from the property in
dispute as it was alleged to have been self
acquired. But in the present case the
petitioners have failed to discharge their
initial burden,therefore, the plea of the
petitioners that the opposite parties no.4
and 5 were required to prove that the
jointness of the family has come to an end
is misconceived and not sustainable in the
eyes of law.

34.

In
view
the
aforesaid
discussions
this
Court
is
of
the
considered opinion that the judgment
and order dated 22.06.1987 passed by
the Consolidation Officer and dated
11.03.1999
passed
by
the
Joint
Director Consolidation have rightly
been passed in accordance with law
after considering the material and
evidence on record. This Court does
not find any illegality or error in the
orders. The writ petition has been filed
on misconceived grounds having no
substance which is devoid of any merit
and is liable to be dismissed.

35.

The
writ
petition
is
accordingly dismissed. No order as to
costs.
----------
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1260

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2020

BEFORE
THE HON'BLE JASPREET SINGH, J.

Arbitration Application No. 20 of 2014

M/S Garg Gas Service ...Applicant
Versus
Hindustan Petroleum Corp. Ltd.
 ..Opposite Party

Counsel for the Applicant:
Amarjeet Singh Rakhra

Counsel for the Opposite Party:
Anand Shanker Asthana

A. Arbitration and Conciliation Act, 1996Section 11(6)- challenge to-appointment
of arbitrator-petitoner is the distributor
of L.P.G. Gas Cylinders in pursuance of
the
distributorship
agreement
with
Hindustan
Petroleum
Corporationrespondent issued show cause notice and
inspections were conducted-respondent
threatened the petitioner-being tired of
the attitude of the respondent, petitioner
requested to appoint arbitrator- after a
lapse of 30 days, petitioner approached
the court to invoke arbitration clausewhile
respondent
appointed
one
arbitrator in the meantime in excess of
jurisdiction-he
did
not
possess
the
authority to appoint the arbitrator-his
appointment is contrary to the settled
legal provisions and principles-hence, all
his actions would be rendered null and
void including the sittings held by himobjections of the respondent rejectedhence, a new arbitrator is appointed as
powers conferred u/s 11(6) of the
Act.(Para 31 to 38)

The application is allowed. (E-6)

List of Cases Cited:-
1. Datar Switchgears Vs. Tata Finance Ltd.&
Another (2000) 8 SCC 151

2. TRF Ltd. Vs. Energo Engineering Projects
Ltd. (2017) 8 SCC 377

3. Perkins Eastman Architects DPC & Ors Vs.
HSCC (India) Ltd.,AIR 2020 SC 59

4. Walter Bau AG (2015) 3 SCC 100

(Delivered by Hon'ble Jaspreet Singh, J.)

1. An interesting question is involved
in this petition under Section 11(6) of the
Arbitration & Conciliation Act, 1996
shown of unecessary facts, the case setup
by the petitioner is that he is the distributor
for L.P.G. Gas cylinders and engaged in
the aforesaid business in pursuance of the
distributorship agreement with Hindustan
Petroleum Corporation dated 16.05.2008.
The petitioner is stated to be the distributor
of L.P.G. since last 31 years and the
distributorship
agreement
have
been
renewed from time to time and lastly it
was renewed on 15.05.2013, a copy of
which has been annexed as Annexure No.
1
with
the petition.
The
aforesaid
distribution
agreement
contains
an
arbitration clause which reads as under:-

39. Any dispute of difference of
any nature whatsoever or regarding any
rights, liability, act, omission, or account
of any of the parties, here to arising out of
or in relation to this agreement (other than
those in respect of which the decision
ofany person, is by the Agreement
expressed to be final and binding) shall be
referred to the sole Arbitration of the
Chairman and Managing Director of the
Corporation or of retired officer of oher
PSUs or retired Senior Central Govt.
Officer who may be nominated by the
Chairman and Managing Director. The