# Chhutta & Ors v. The Board of Revenue & Ors

- **Citation:** (2026) 4 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-07
- **Case number:** Writ B No. 10859 of 1981
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhutta-ors-v-the-board-of-revenue-ors-54476
- **Pages:** 11

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES
years, name of predecessors of petitioners were recorded in 1307/1309-F without any subsequent
event such as family partition if they are from common ancestors.

18. From Kursinama, it is evident that when name of only Ganga was recorded in 1291-F,
there was no reference of Ram Dayal or Nanku or their successor allegedly brother of Ganga,
therefore, without any basis name of Sumer was recorded in 1309-F as well as in 1334-F, name of
Ramdev and Partap of petitioner's side were recorded, however no reason was recorded for such
entries i.e. were made without any basis, therefore, entries which were recorded suddenly and
surreptitiously can not sustain and can be expunged.

19. In aforesaid circumstances, concurrent finding of three Authorities under U.P.C.H Act
cannot be interfered being not shown as perverse. An argument of re-settlement being vague was
also rightly rejected by Settlement Officer of Consolidation and upheld by Deputy Director of
Consolidation. The statement of Kishor was found unsufficient to prove the case of petitioners
which was rejected after much deliberations by all three Authorities under U.P.C.H. Act. Nature of
entries of petitioners in 1309-F was 'sikmi cultivator' for fixed period, therefore, they can not be
considered as co-tenure holder. All above factor goes against the petitioners and were the basis of
all three Authorities to expunge the entries.

20. Accordingly, present writ petition is dismissed.
----------
(2026) 4 ILRA 794
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2026

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 10859 of 1981

Chhutta & Ors. ...Petitioners
Versus
The Board of Revenue & Ors. ...Respondents
ISSUE FOR CONSIDERATION
Whether the Appellate Court was justified in allowing the appeal and decreeing the suit despite
the fact that the plaintiffs failed to prove that the plots in dispute were ancestral property and
failed to establish identity of the plots and continuity of entries, merely on the ground that there
was a presumption of joint Hindu family and joint Hindu family nucleus in old times.
HEADNOTE
U.P. Zamindari Abolition and Land Reforms Act, 1950, s.229-B - Suit for declaration of cotenancy rights - Plaintiffs instituted suit under Section 229-B claiming co-tenancy rights over
4 All. Chhutta & Ors. Vs. The Board of Revenue & Ors.
795
the land in dispute on the ground that Fattu and Nanha were common ancestors of the parties
and the plots in dispute had come down from the time of ancestors having been acquired out of
the nucleus of joint Hindu family fund - Defendants contested the suit and denied that the plots
in dispute were ancestral property - Trial Court dismissed the suit holding that the plot in
question was not proved to be ancestral and identity of plots as well as continuity of entries
were not established - Additional Commissioner allowed the appeal and decreed the suit on the
ground that there was presumption of joint Hindu family as well as joint Hindu family nucleus
fund in old times - Board of Revenue dismissed second appeal - Challenge in writ jurisdiction :

Held : There would be a presumption of joint Hindu family but there can be no presumption that a property
standing in the name of a member of the joint Hindu family is also a joint family property - Property cannot
be presumed to be joint family property merely because of existence of a joint family.
In the instant matter, Court held that the plot in question was not proved to be ancestral and identity of plots
as well as continuity of entries of the plot in question had not been established - As such, co-tenancy rights
could not be allowed only on the ground that there was presumption of joint family in old times - Additional
Commissioner allowed the appeal on the ground that there was presumption of joint Hindu family as well as
joint Hindu family nucleus fund in old times, which was contrary to law - The impugned orders dated
19.08.1974 passed by the Additional Commissioner and 12.08.1981 passed by the Board of Revenue were set
aside - Writ petition allowed. (E-5)
[Paras 11, 12, 13, 14, 15, 16]
CASE LAW CITED
Bala Charan and Others v. State of U.P. and Others, 1978 RD 51;
D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another, (2003) 10 SCC 310;
Angadi Chandranna v. Shankar and Others, 2025 LiveLaw (SC) 494;

List of Acts
U.P. Zamindari Abolition and Land Reforms Act, 1950.
List of Keywords
Section 229-B; Co-tenancy rights; Joint Hindu family; Joint family property; Joint family nucleus; Ancestral
property; Presumption of joint family; Burden of proof; Continuity of entries; Identity of plots; Revenue
entries; Co-tenure holder; Self-acquired property; Blending of property; Nucleus of joint family fund.
CASE ARISING FROM
From the judgment dated 19.08.1974 passed by the Additional Commissioner in Appeal No. 64 of 1971 and
judgment dated 12.08.1981 passed by the Board of Revenue in Second Appeal No. 9(Z) of 1974-75 arising
out of a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
Appearances for Parties
Advs. for the Petitioner: Anubhav Sinha, Chandra Shekhar Garg, Daya Shankar Prasad Singh, H.O. Tiwari,
Mahesh Sharma, Manoj Kumar Singh, R.K. Ojha.
Advs. for the Respondents: D.N. Gupta, K.N. Saxena, Manvendra Nath Singh, Rajendra Gupta, Ram Kishore
Pandey, S.B. Jauhari, Standing Counsel, S.S. Gupta, Santosh Kumar Gaur, Veer Bhagat Singh Kushwaha, Vijay
Prakash Singh Kushwaha, Vinod Kumar Singh, Vinod Kumar Singh (Senior Advocate).
796 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Chandra Kumar Rai, J.)

1. Heard Mr. R.K. Pandey, learned Counsel assisted by Mr. Chandra Shekhar Garg, learned
Counsel for the petitioners, Mr. V.K. Singh, learned Senior Counsel assisted by Mr. Aman
Srivastava, learned Counsel for private respondents and Mr. Om Anand, learned Standing Counsel
for the State respondents.

2. Brief facts of the case are that dispute relates to total 146 plots area 55.84 acres situated in
Village Bansi, Pargana Bansi, District Lalitpur (Jhansi) as mentioned in paragraph no. 1 of the writ
petition. Respondent no.1-B/ Janki, respondent no.2/ Bhaiya Lal, respondent no.3/ Hardas filed a
suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 hereinafter
referred to as U.P.Z.A. and L.R. Act claiming co-tenancy right along with defendant nos. 3 to 29 on
the ground that Fattu and Nanha were common ancestors of the parties and land in suit is coming
down from time of ancestors which was acquired out of the nucleaus of the Joint Hindu Family
Fund and parties have been in possession over the same. Defendant nos. 4,5,6,7,8,9,10,14 & 29
jointly filed written statement denying the plaintiff's claim. It was also mentioned in the written
statement that land in suit exclusively belongs to aforementioned defendants and plaintiffs have no
right and title in the land in suit nor they have been in possession over the land in suit. It was also
mentioned in the written statement that suit is time barred. In the aforementioned suit, parties
adduced oral and documentary evidences in support of their cases. Trial Court vide judgement and
decree dated 30.10.1971 dismissed the plaintiff's suit recording finding that land in suit has not
been proved to have come down from the time of common ancestor. Against the judgement and
decree of Trial Court dated 30.10.1971, an appeal was filed by plaintiffs Janki and others before
Commissioner which was registered as appeal no. 64 of 1971. The aforementioned appeal was
heard by Additional Commissioner and the same was allowed vide judgement dated 19.8.1974
decreeing the plaintiff suit setting aside the judgement and decree of Trial Court. Against the
judgement and decree dated 19.8.1974 passed by Additional Commissioner, petitioners filed
second appeal before Board of Revenue which was registered as second appeal No. 9 (z) of 19741975. The aforementioned second appeal was dismissed by Board of Revenue vide judgement
dated 12.8.1981 hence this writ petition on behalf of the petitioners for the following relief:-

"To issue a writ, order or direction in the nature of certiorari quashing the order dated
12.8.1981 passed by opposite party no.I, and order dated 19.9.1974 passed by opposite party no.
I-A."

3. This Court admitted the writ petition on 2.9.1981 and directed the parties to maintain status
quo.

4. In pursuance of the order of this Court dated 2.9.1981, the parties have exchanged their
pleadings.

5. Learned Counsel for the petitioners submitted that suit under Section 229-B of U.P.Z.A. and
L.R. Act filed by respondent nos. 2 to 4, respondent no. 1-B, 2 and 3 was dismissed by Trial Court
in proper manner after framing issues and giving parties to lead evidence in accordance with law.
He submitted that Additional Commissioner has decreed the plaintiff's suit in appeal without
4 All. Chhutta & Ors. Vs. The Board of Revenue & Ors.
797
framing the point of determination as well as reversing the finding of fact recorded by Trial Court
in proper manner. He submitted that second appeal filed by petitioners has been dismissed without
considering the case as set up in second appeal. He submitted that in 1865 AD, there were only two
plots and at present, there are 146 plots. He further submitted that Trial Court has recorded the
finding of fact that acquisition were made at different time which is very much demonstrated from
the different periods mentioned in respect to different plots in the khatauni ranging from 1303 fasli.
He submitted that in case of plea of ancestral acquisition, identity as well as continuity should be
same and Trial Court recording finding of fact that neither identity nor continuity remained same,
as such, there was no scope for interference in appeal before Commissioner. He submitted that
Board of Revenue and Additional Commissioner has erred in holding that acquisition were made
out of the nucleaus of joint Hindu family although there is no pleading that there was any nucleaus
in the family nor there is any finding to that effect. He submitted that no presumption attaches to
the joint character of the property rather presumption attaches to the jointness of the family and any
member of the joint family can acquire his separate property also. He submitted that no plea of
amalgamation of khata was pleaded by the plaintiff in the plaint. He further submitted that
admission of certain defendants has no binding effect on the contesting defendants. He further
submitted that pedigree relied upon by the plaintiff has not been proved by them, as such, the suit
cannot be decreed in any manner. He submitted that entries of 1865 fasli, 1303 fasli, 1309 fasli and
1359 fasli have been misread by Additional Commissioner as well as Board of Revenue. He
submitted that Board of Revenue has decided the second appeal in illegal manner. He submitted
that finding recorded by Additional Commissioner and Board of Revenue are based on surmises
and conjectures, as such, the same cannot be sustained in the eye of law. He submitted that
impugned judgement passed by Board of Revenue and Additional Commissioner should be set
aside and judgement of Trial Court should be maintained.

6. On the other hand, learned Senior Counsel for private respondents submitted that Trial
Court has not exercised the jurisdiction in proper manner accordingly Additional Commissioner
has considered the entire aspect of the matter and decreed the plaintiff's suit under Section 229-B of
U.P.Z.A. and L.R. Act considering the evidence on record. He submitted that Board of Revenue
has rightly maintained the judgement and decree passed by Additional Commissioner by
dismissing the second appeal filed by petitioners. He submitted that revenue entry was properly
taken into consideration in order to decide the suit under Section 229-B of U.P.Z.A. and L.R. Act in
proper manner. He submitted that there is a presumption of joint Hindu family as held by this Court
from time to time and if any number of joint Hindu family is claiming exclusive right that he has to
prove that how he has acquired right being member of joint Hindu family. He submitted that
finding of fact recorded by Additional Commissioner as maintained in second appeal cannot be
interfered with in exercise of jurisdiction under Article 226 of the Constitution of India.

7. I have considered the arguments advanced by learned Counsel for the parties and perused
the records.

8. There is no dispute about the fact that suit under Section 229-B of U.P.Z.A. and L.R. Act
filed by contesting respondents was dismissed by Trial Court but in appeal, Additional
Commissioner has decreed the plaintiff's suit. There is also no dispute about the fact that second
appeal filed by petitioners was dismissed by Board of Revenue.
798 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In order to appreciate the controversy involved in the matter, the perusal of the issues
framed by the Trial Court in the aforementioned suit will be relevant for perusal which are as
under:-

"प्रश्न न० : ।:- क्र्ा प्रततवादी, न० 3 अभी भी राम दास को बेवा है और इस
भूलम में सह काश्तकार है ?

प्रश्न न० : 2: क्र्ा वादोगण प्रततवादी गण: 3 ता 29 के साि, सीरदार है
जजस प्रकार कहा है ?

प्रश्न न० : 3: क्र्ा वाद में पराव जस्ता न बनाने का दोर् हे ?

प्रश्न न० : 4 वादी गण को क्र्ा सहार्ता लमि सकती है ?

प्रश्न न० : 5: क्र्ा वाद में िारा 34 (5) एि० आर० एक्ि बािक है ?

प्रश्न न०: 6: क्र्ा श्रौमतो झुनरी रामदास की कानूनी वाररस है ?"

10. The Trial Court dismissed the plaintiff's suit considering the issues framed in the
proceeding as well as the evidences adduced by the parties holding that plot in question are not
ancestral plot and identity of plot as well as continuity of entry is not established. Perusal of finding
of fact recorded by Trial Court on issue no. 2 will be relevant which is as under:-

"प्रश्न नं० :2:- वादीगण ने अजी दावा के साि बहुत सजरा हदर्ा है और कहा है कक वह भूलम पूवयजों
में ििी आ रही है और फरीकैन की मौरूसी काश्तकारी है। अपना बर्ान में हरदास वादी ने वंशाविी बर्ान की
है, मगर जजरह में उसने कहा है कक उसने नने व फतूं को नहीं देिा है हिारे उसी के वह सजरा उसकी मां व
कब्जे ने बतार्ा है उसकी मां मर िुकी है वाको गौरा वह है, मगर उसे पेश नहीं ककर्ा है बादी ने कहा है कक
भूलम फतू व नने के समर् से ििी आती है वादीगण ने िसरा व ितौनी की नकि अवश्र् दाखिि की है
उनको र्ह साबबत करना होगा कक वववाहदत िाता इसी रूप से फतू व नने है अपने एकनातनर्त के साि ििा
आता है मौरूसी भूलम साबबत करने के लिए र्ह अतत आवश्र्क है कक वादीगण ने कोई ऐसी नकि दाखिि
नहीं की है, जजससे वववाहदत िाता फतू और नने के नाम लििा हो। िसरा 1865 ई० में दो नंबर फतू नाम
लििा है ितौनी 1303 पर आंलशक बि हदर्ा गर्ा है, मगर उसमें भी हम देिते हैं कक कुछ नंबरान िाता नंबर
17 में केवि दूरजू के नाम लििी है और कुछ नंबरान िाता नंबर 26 में अमान, जवाहर पुत्रगण नन्हे दुगुय पुत्र
िगू व पररक्कत पुत्र रामवेद के नाम लििे हैं। िसरा 1303 फ० में इंराज इसी प्रकार के अिग-अिग हैं एक
नंबर 1186 पर अकेिे वपरक्का का नाम, अन्र् नंबरान पर अंककत दूरमु का नाम है, कुछ पर अमान का नाम
है उसके अिावा एक बात और ध्र्ान में रिने की है कक ितौनी 1303 फसिी में िाता नंबर 17 पर दुगय के
नाम लििे हैं, उन पर कोई कृवर्काि नहीं पड़ा है और जो नंबर िाता नंबर 26 पर अमान माद ने नाम लििे है
उन पर ववलभन्न कृवर् काि पड़े हैं इससे साबबत होता है कक वववाहदत भूलम एक ही िाता हो और एक ही समर्
से नहीं आई है अगर कुि वववाहदत भूलम का िाता पहिे फतू व नने का होता तो कृवर् काि एक होता वादी की
4 All. Chhutta & Ors. Vs. The Board of Revenue & Ors.
799
ओर से कहा गर्ा है कक िाता नंबर 26 को िगान पर लििा है कक शालमि िाता नंबर 17 इसलिए दोनों
ितौनी को एक समझना िाहहए अगर ऐसा होता तो दोनों िाते शालमि ककए जाते और सबका कृवर् काि एक
ही होता िाता नंबर 26 के ऊपर लििा है जजसमें उसको हक दिीि कार हालसि नहीं है। इसका मतिब है कक
वह भूलम गैर दिीिकारी िाता न० 17 पर दरजू अकेिा लििा है और वह भी भू आराजी सीर लििा है। 1303
फसिी में दूरजू दिीि कार लििा है वादीगण की ओर से र्ह भी कहा गर्ा है कक ितौनी 1366-68 फसिी में
भैर्ािाि वादी नत्िू, िान लसंह, अजुध्दा व अन्र् प्रततवादीगण अिग अिग नंबरान पर वगय 7 में लििे है
इसका मतिब है कक उन िोगों का कब्जा रहा है नकि देिने से प्रतीत होता है कक बहुत सी जमीन उसमें से
परती तनकि गई अगर र्ह िोग सहकाश्तकार होते तो वगय 7 में नहीं लििे जाते। 1366 फसिी के इस इंराज
से उस समर् उन िोगों का कब्जा साबबत नहीं हो सकता है। इसीलिए र्ह नहीं कहा जा सकता है कक वादीगण
र्ा अन्र् प्रततवादीगण का कब्जा है।

हरी, गुल्िे और भुज्जे प्रततवादीगण ने पहिे जवाब दावा हदर्ा मगर बाद में दरिास्त दी कक वह
वादी के किन को स्वीकार करते हैं इन िोगों के नाम भी मौजूदा ितौनी में लििे हैं इसलिए वादीगण की ओर
से कहा गर्ा है कक वह िोग वादीगण का भाग स्वीकार करके अपवा भाग कम करते हैं इसलिए उनका किन
और स्वीकृतता को बहुत महत्व लमिना िाहहए और उसके आिार पर वादीगण का किन स्वीकार होना
िाहहए। हरी, गुल्िे व भुज्जे ने पहिे जवाब दावा हदर्ा और वादीगण के अधिकारों से इंकार ककर्ा है बाद में
वह बदि गए और अब वादीगण का किन स्वीकार कर लिर्ा है। मेरी रार् में र्ह ककसी भी समर् दावा
स्वीकार कर सकते हैं, मगर उनके इस स्वीकार करने को कोई ठोस महत्व नहीं हदर्ा जा सकता है और केवि
उसी के आिार पर वादीगण का दावा पर कोई ववशेर् बि नहीं पड़ सकता। मैं वादीगण एवं अन्र् प्रततवादीगण
के नाम इस भूलम पर नहीं है। वपछिे इंराज में जो 1303 फसिी में िे उनसे भी र्ह साबबत नहीं होता है कक
वववाहदत भूलम इसी दशा में फरीकैन के पूवयजों के नाम रही है। मेरी रार् में र्ह साबबत नहीं है कक वववाहदत
भूलम अपनी एकालिर्त के साि इसी रूप में फरीकैन के पूवयजों से ििी आई है इसलिए उसको सब फरीकैन
को मुश्तरका काश्त नहीं कहा जा सकता है। 1359 फसिी में र्ह भूलम गुंदे गर्ासी, बहारे, रामदास के नाम
लििी है। ितौनी 1377 फसिी में वह भूलम गुंदे हल्का कुिे प्र्ारेिाि, हरी, पररक्कत, गोरेिाि, भुज्जा, बहोरे
और बड़ी बहू के नाम लििी है अब बड़ी बहू के स्िान पर श्रीमती झुनरी होना िाहहए जैसा कक ऊपर कहा गर्ा
है कक शहादत से र्ह साबबत नहीं होता है कक वववाहदत भूलम सब फरीकैन की मौस्सी हो और एक ही पूवयजों से
अरसे से मूि रूप में ििी आ रही हो इसलिए र्ह भी नहीं कहा जा सकता कक वादी का प्रततवादीगण 3 ता 29
र्ा 4 ता 30 के साि सह सीरदार है। अतः प्रश्न का उिर वादी के खििाफ हदर्ा जाता है।"

11. In view of categorial finding of fact recorded by Trial Court considering the entry of 1303
fasli, 1359 fasli, 1366-68 fasli, 1377 fasli to the effect that plot in dispute is not proved to be
ancestral as well as identity of plots and continuity of entry of the plot in question are not
established, the first appellate Court cannot allow the appeal of plaintiff's on the ground that there
was presumption of joint Hindu family as well as joint Hindu nucleous fund in the old time, as
800 INDIAN LAW REPORTS ALLAHABAD SERIES
such, and judgement and decree of first Appellate Court which has been maintained in second
appeal by Board of Revenue in arbitrary manner cannot be sustained in the eye of law.

12. This Court in the case reported in 1978 RD Page 51 Bala Charan and Others Vs. State of
U.P. and Others has held that there would be a presumption of joint Hindu family but there can be
no presumption of that a property standing in the name of a member of the joint Hindu family is
also a joint family property. Paragraph no.5 of the judgement rendered by this Court in Bala
Charan and Others (Supra) will be relevant for perusal which is as under:-

"5. In the case in hand no evidence was adduced on behalf of the opposite parties that
there was nucleus from which the plots in question were acquired. It was not proved that the
Patta was acquired out of the joint family funds, nor was it established that the income raised out
of the plots in question was utilised by the other members of the joint Hindu family, nor any
effort was made to show that the plots in question were blended with the joint family property
and the opposite parties had thus acquired co-tenancy rights therein. The fact that the plots
standing in the name of Mitthoo were held to be joint family property would not go to prove that
the plots in question which stood in the name of Thakur were also joint family property. The
Deputy Director of Consolidation had thus erred in holding that the opposite parties had
acquired co-tenancy rights in the said plots. The Consolidation Officer had also erred likewise.
In my view the Settlement Officer (Consolidation) had applied the correct principles of law to the
facts of the case. The orders passed by the Deputy Director as also the Consolidation Officer
cannot, therefore, be maintained."

13. Apex Court in the case reported in (2003) 10 Supreme Court Cases 310 D.S.
Lakshmaiah and another vs. L. Balasubramanyam and another has held that property cannot
be presumed to be joint family property merely because of existence of a joint family. Paragraph
nos.17 to 21 of the judgment of Apex Court rendered in D.S. Lakshmaiah (Supra) will be relevant
for perusal which are as under "-

"I7. In view of the aforesaid discussion, the respondents having failed to discharge the
initial burden of establishing that there was any nucleus in the form of any income whatsoever from
Item No.2 property and no other nucleus was claimed, the burden remained on the respondents to
establish that Item No.1 property was joint family property. In this view, the fact that the first
appellant has not led any evidence to establish his separate income is of no consequence insofar as
the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence,
the respondents' claim of Item No.1 to be joint family property would fail as rightly held by the first
appellate court.

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 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.
4 All. Chhutta & Ors. Vs. The Board of Revenue & Ors.
801

19. Another contention urged for the respondents was that assuming Item No.1 property
to be self-acquired property of appellant No.1, he blended the said property with the joint family
property and, therefore, it has become the joint family property. Assuming the respondents can be
permitted to raise such a plea without evidence in support thereof, the law on the aspect of
blending is well settled that property separate or self- acquired of a member of joint Hindu family
may be impressed with the character of joint family property if it is voluntarily thrown by the owner
into the common stock with the intention of abandoning his separate claim therein but to establish
such abandonment a clear intention to waive separate rights must be established. From the mere
fact that other members of the family were allowed to use the property jointly with himself, or that
the income of the separate property was utilized out of generosity to support persons whom the
holder was not bound to support, or from the failure to maintain separate accounts, abandonment
cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an
admission of a legal obligation {see Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshamama
[1964 (2) SCR 172] and K.V. Narayanan v. K.V. Ranganadhan & Ors. [(1977) 1 SCC 244]}.

20. In the present case, respondents have not led any evidence on the aforesaid aspects
and, therefore, it cannot be held that the first appellant blended Item No.1 property into the joint
family account.

21. In view of aforesaid discussion, Item No.1 property cannot be held to be joint family
property. The impugned judgment of the High Court is, therefore, set aside and the appeal allowed
and the judgment and decree of the first appellate court is restored. In the circumstances of the
case, parties are left to bear their own costs."

14. Apex Court in the recent judgment reported in 2025 LiveLaw (SC) 494 Angadi
Chandranna vs. Shankar & others reiterated the same view. Paragraph No.13 of the judgment of
Apex Court rendered in Angadi Chandranna (Supra) will be relevant for perusal which is as
under :-

"13. Further, it is a settled principle of law 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 asserting
proves that there was nucleus with which the joint family property could be acquired, then 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. That apart, while considering the term
?nucleus? it should always be borne in mind that such nucleus has to be established as a matter of
fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities.
This Court in R.Deivanai Ammal (Died) v. G. Meenakshi Ammal12, dealt with the concept of Hindu
Law, ancestral property and the nucleus existing therein. The relevant paragraphs are extracted
below for ready reference:

"13. First let us consider the nature of the suit properties, namely, self-acquired
properties of late Ganapathy Moopanar or ancestral properties and whether any nucleus was
available to purchase the properties. Under the Hindu Law it is only when a person alleging that
the property is ancestral property proves that there was a nucleus by means of which other
property may have been acquired, that the burden is shifted on the party alleging self-acquisitions
to prove that the property was acquired without any aid from the family estate. In other words the
802 INDIAN LAW REPORTS ALLAHABAD SERIES
mere existence of a nucleus however small or insignificant is not enough. It should be
shown to be of such a character as could reasonably be expected to lead to the acquisition
of the property alleged to be part of the joint family property. Where the doctrine of
blending is invoked against a person having income at his disposal and acquiring property,
the reasonable presumption to make is that he had the income at his absolute disposal
unless there is evidence to the contrary. If a coparcener desires to establish that a property
in the name of a female member of the family or in the name of the manager himself has to
be accepted and treated as property acquired from the joint family nucleus, it is absolutely
essential that such a coparcener should not only barely plead the same, but also establish
the existence of such a joint family fund or nucleus. Even if the joint family nucleus is so
established, the prescription that the accretions made by the manager or the purchases
made by him should be deemed to be from and out of such a nucleus does not arise, if there
is no proof that such nucleus of the joint family is not an income-yielding apparatus. The
proof required is very strict and the burden is on the person who sets up a case that the
property in the name of a female member of the family or in the name of the manager or
any other coparcener is to be treated as joint family property. There should be proof of the
availability of such surplus income or joint family nucleus on the date of such acquisitions
or purchases. The same is the principle even in the cases where moneys were advanced on
mortgages over immoveable properties. The onus is not on the acquirer to prove that the
property standing in his name was purchased from joint family funds. That may be so, in
the case of a manager of a joint family, but not so in the case of all coparceners. For a
greater reason it is not so in the case of female members.

14. The doctrine of blending of self-acquired property with joint family has to be
carefully applied with reference to the facts of each case. No doubt it is settled that when
members of a joint family by their joint labour or in their joint business acquired property,
that property, in the absence of a clear indication of a contrary intention, would be owned
by them as joint family property and their male issues would necessarily acquire a right by
birth in such property. But the essential sine qua non is the absence of a contrary
intention. If there is satisfactory evidence of an intention on the part of the acquirer such
property to treat it as his own, but not as joint family property, the presumption which
ordinarily arises, according to the personal law of Hindus that such property would be
regarded as joint family property, will not arise.

15. It is a well-established principle of law that where a party claims that any
particular item of property is joint family property, the burden of proving that it is so rests
on the party asserting it. Where it is established or admitted that the family possessed some
joint property which from its nature and relative value may have formed the nucleus from
which the property in question may have been acquired, the presumption arises that it was
joint property and the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint family. But no such
presumption would arise if the nucleus is such that with its help the property claimed to be
joint could not have been acquired. In order to give rise to the presumption, the nucleus
should be such that with its help the property claimed to be joint could have been acquired.
A family house in the occupation of the members and yielding no income could not be
nucleus out of which acquisitions could be made even though it might be of considerable
value.
4 All. Chhutta & Ors. Vs. The Board of Revenue & Ors.
803

16. In a Hindu joint family, if one member sues for partition on the foot that the
properties claimed by him are joint family properties then three circumstances ordinarily
arise. The first is an admitted case when there is no dispute about the existence of the joint
family properties at all. The second is a case where certain properties are admitted to the
joint family properties and the other properties in which a share is claimed are alleged to
be the accretions or acquisitions from the income available from joint family properties or
in the alternative have been acquired by a sale or conversion of such available properties.
The third head is that the properties standing in the names of female members of the family
are benami and that such a state of affairs has been deliberately created by the manager or
the head of the family and that really the properties or the amounts standing in the names
of female members are properties of the joint family. While considering the term ?nucleus?
it should always be borne in mind that such nucleus has to be established as a matter of
fact and the existence of such nucleus cannot normally be presumed or assumed on
probabilities. The extent of the property, the income from the property, the normal liability
with which such income would be charged and the net available surplus of such joint
family property do all enter into computation for the purpose of assessing the content of
the reservoir of such a nucleus from which alone it could, with reasonable certainty, be
said that the other joint family properties have been purchased unless a strong link or
nexus is established between the available surplus income and the alleged joint family
properties. The person who comes to Court with such bare allegations without any
substantial proof to back it up should fail.

17. It is also a well-established doctrine of Hindu Law that property which was
originally self-acquired may become joint property if it has been voluntarily thrown by the
coparcener into the joint stock with the intention of abandoning all separate claims upto it.
But the question whether the coparcener has done so or not is entirely a question of fact to
be decided in the light of all the circumstances of the case. It must be established that there
was a clear intention on the part of the coparcener to waive his separate rights and such
an intention will not be inferred from acts which may have been done from kindness or
affection. The important point to keep in mind is that the separate property of a Hindu
coparcener ceases to be his separate property and acquires the characteristics of his joint
family or ancestral property, not by mere act of physical mixing with his joint family or
ancestral property, but by his own volition and intention by his waiving or surrendering
his special right in it as separate property. Such intention can be discovered only from his
words or from his acts and conduct."

15. In the instant matter, plot in question was not proved to be ancestral as well as identity of
plots and continuity of entry of the plot in question has not been established, as such, co-tenancy
cannot be allowed only on the ground that there was presumption of joint family in the old time.

16. Considering the entire facts and circumstances of the case as well as ratio of law laid down
by this Court as well as Apex Court, the impugned orders dated 12.8.1981 passed by Board of
Revenue and 19.9.1974 passed by Additional Commissioner are liable to be set aside and the same
are hereby set aside.
804 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The writ petition stands allowed and the judgement of Trial Court dated 30.10.1971 is
maintained. 18. No order as to costs.
----------
(2026) 4 ILRA 804
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2026

BEFORE

THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Writ B No. 12565 of 1982

D.B. Upadhyaya ...Petitioner
Versus
D.D.C. & Ors. ...Respondents
ISSUE FOR CONSIDERATION
Whether the Deputy Director of Consolidation was justified in holding the contesting respondent
to be an adhivasi and subsequently a sirdar merely on the basis of entries in his favour in 1356F, 1359-F and 1362-F, without considering the nature and manner of such entries, whether they
were recorded in accordance with the provisions of the Land Revenue Act, the fact that his name
was subsequently struck off in 1365 Fasli, and the concurrent finding that his name had not been
recorded for more than ten years prior to commencement of consolidation proceedings.
HEADNOTE
U.P. Consolidation of Holdings Act, 1953 - ss.9-A(2), 48 - U.P. Zamindari Abolition and Land
Reforms Act, 1950 - s.20(b) - Disputed plots were recorded in the basic year in the names of
predecessors-in-interest of the petitioners - Contesting respondent filed objections claiming
adhivasi and consequential sirdari rights over the disputed plots on the basis of entries in 1356F, 1359-F and 1362-F - Consolidation Officer rejected the objections holding that continuity of
possession was not proved and that the entries relied upon were not genuine - Settlement
Officer of Consolidation affirmed the findings and further held that possession recorded as 'Batai
Nisfi' did not establish adverse possession - Deputy Director of Consolidation, in revision,
reversed the concurrent findings and declared the contesting respondent to be adhivasi and
sirdar in respect of certain plots - Challenge in writ jurisdiction.

Held: Consolidation Officer and Settlement Officer of Consolidation recorded concurrent findings that the
name of the contesting respondent was recorded on the disputed plots in certain Fasli years as sikmi with a
note of Batai Nisfi, however, there was no entry in his favour in subsequent Fasli years and his name was not
recorded for more than ten years before commencement of consolidation proceedings - Findings returned by
the Revisional Authority that the contesting respondent had become an adhivasi and subsequently a sirdar on
the basis of entries of 1356-F, 1359-F and 1362-F were erroneous since continuous possession of the
contesting respondent was not proved - Entry of a sikmi tenant with a note of Batai Nisfi indicated permissive
possession and not adverse possession.

Court further held that entries which are not genuine cannot confer adhivasi rights and an entry under Section
20(b) of the U.P. Zamindari Abolition and Land Reforms Act must be an entry made in accordance with law -