# Pancham & Ors v. D.D.C. Sultanpur & Ors

- **Citation:** (2024) 4 ILRA 1312
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-03
- **Case number:** Writ-B No. 178 of 1983
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pancham-ors-v-d-d-c-sultanpur-ors-51799
- **Pages:** 7

## Headnote

Civil Law - Constitution of India,1950Article 226-U.P. Consolidation of Holdings
Act,1953-dispute
regarding
property
rights-Petitioners
argued
that
the
property was part of Joint Hindu Family
and should be treated as joint property -
petitioners and their predecessors were
not recorded as tenure holders in the
revenue records for the property in
question-Possession and rent payment
were deemed insufficient to establish
ownership-The petitioners relied on a
compromise agreement between the cotenureholders, but one key party, Pandoi,
did
not
sign
it-This
rendered
the
agreement
invalid
in
determining
ownership-based on the lack of evidence
to prove joint family ownership or valid
title, and the invalid compromise, the
court upheld the revisional order and
dismissed the petition.(Para 1 to 21)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1312 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 4 ILRA 1312
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.04.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-B No. 178 of 1983

Pancham & Ors. ...Petitioners
Versus
D.D.C. Sultanpur & Ors. ...Respondents

Counsel for the Petitioners:
H.S. Sahai, Ajay Kumar Verma, Mahesh Chandra
Shukla,
Mohan
Singh,
Rankaj
Kumar
Vishwakarma, Sudhir Kumar Misra, U.S. Sahai,
Vinod Kumar

Counsel for the Respondents:
U.P. Singh, Ajay Kumar Verma, Ajay Verma,
C.S.C., Kaushal Kishore, Sudhir Kumar Misra

Civil Law - Constitution of India,1950Article 226-U.P. Consolidation of Holdings
Act,1953-dispute
regarding
property
rights-Petitioners
argued
that
the
property was part of Joint Hindu Family
and should be treated as joint property -
petitioners and their predecessors were
not recorded as tenure holders in the
revenue records for the property in
question-Possession and rent payment
were deemed insufficient to establish
ownership-The petitioners relied on a
compromise agreement between the cotenureholders, but one key party, Pandoi,
did
not
sign
it-This
rendered
the
agreement
invalid
in
determining
ownership-based on the lack of evidence
to prove joint family ownership or valid
title, and the invalid compromise, the
court upheld the revisional order and
dismissed the petition.(Para 1 to 21)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Jai Narain Vs D.D.C & ors. (1979) RD 198
2. Bodh Raj Vs Joint Director of Consolidation
Faizabad & ors., in Writ Petition No. 676 of 1980
connected with Writ Petition No. 23 of 1980

3. Lakshmaiah & anr. Vs L. Balasubramanyam
(2003) 10 SCC 310

4. Kunj Bihari Vs Ganga Sahai Pande (2013) SCC
Online Alld. 13489: 2013 (99) ALR 826

5. Rukhmabai Vs Lala Laxminarayan(1960)AIR
SC 335

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Sri Mohan Singh, learned
counsel for the petitioners, Sri Sudhir
Kumar
Misra,
learned
counsel
for
Respondent Nos.3/1, 3/2, 3/2/1, 3/2/2,
3/2/3 and 3/3 and Sri Kaushal Kishor,
learned counsel for Respondent Nos.4 and
Sri Hemant
Kumar Pandey, learned
Standing Counsel for the State.

2. The present writ petition has
been preferred for quashing of the
impugned order dated 12.02.1981 passed
under Section 9(2) of the Uttar Pradesh
Consolidation of Holdings Act, 1953
(hereinafter referred as 'the Act, 1953') by
Consolidation Officer and the revisional
order dated 30.12.1982 passed under
Section 48 of the Act, 1982.

3. Learned counsel for the
petitioners
has
submitted
that
the
predecessors of the present petitioners i.e.
Petitioner No.1 and Late Bairagi father of
Petitioner Nos.2, 3 and 4 had filed
objection under Section 9 of the Act, 1952
claiming co-tenancy right over Khata
No.112 on the ground that the family of
the petitioners and the opposite parties
were Joint Hindu Family and Late Ramhit
was the Karta of the family. Being the
Karta of the Joint Hindu Family his name
alone
was
recorded
under
the
4 All. Pancham & Ors. Vs. D.D.C. Sultanpur & Ors.
1313
representative capacity in the revenue
records.

4. It is further submitted that the
consolidation officer had rejected the
objection filed under Section 9A of the Act,
1953 by impugned order dated 12.02.1981
against which Late Pancham and his cousin
brother late Bairagi the father of the
Petitioner Nos. 2,3 and 4 had preferred an
appeal and the said appeal was decided on
the basis of the compromise / agreement
entered between the petitioners and the
respondents.

5. It is further submitted that
against the appellate order Pandohi had
preferred a revision under Section 48 of the
Act, 1953, who is the brother of Ram
Lakhan and son of Late Nidhi.

6. It is further submitted that the
Revisional Court committed manifest error
of law in allowing the revision without
giving due weightage to the admission
made by respondent No.4 Ronghai and the
compromise filed which was duly verified
before the Assistant Settlement Officer,
Consolidation and also failed to consider
the admission made by the opposite
parties in the reconciliation proceedings
by filing a compromise.

7. It is further submitted that the
Respondent
No.1
had
misread
the
evidence with respect to the rent receipts
and Khasra entries. It is also submitted
that in CH Form 2A issued under Rule 21
the name of the petitioner No.1 and
Bairagi are recorded.

8. It is further submitted that the
predecessors of
the petitioners Late
Pancham i.e. Petitioner No.1 and Late
Bairagi father of Petitioner Nos.2,3 and 4,
were in possession of the gatas and have
been depositing the rent.

9. On the other hand, learned
counsel for the respondents have submitted
that there is no illegality in the impugned
revisional order and the same has been
passed after appreciating and considering
the evidence.

10. Sri Sudhir Kumar Mishra,
learned counsel for Respondent Nos.3/1,
3/2, 3/2/1, 3/2/2, 3/2/3 and 3/3 has
submitted that Pandohi the brother of Ram
Lakhan and son of Nidhi had never signed
any agreement nor participated in alleged
conciliation proceedings between Late
Pancham and Ram Lakhan. It is further
submitted that the petitioners have failed to
show any entry in the name of petitioners
in the revenue records.

11. After hearing the learned
counsel for the parties and going through
the record of the case the position which
emerges out in the present case is that as far
as the submission of learned counsel for the
petitioners that the property belongs to a
Joint Hindu Family is concerned, it is not
tenable in the eyes of law as per law
regarding the Joint Hindu Family Property
it is now fairly well settled that in order to
successfully claim the share regarding the
Joint Hindu Family property, the burden is
on the party to prove that there existed a
joint family which had the requisite funds
and nucleus out of which the property in
question has been purchased. The onus is
upon the petitioner to adduce evidence to
indicate that the property was the Joint
Hindu Family Property which they have
failed to prove and in absence of any
evidence to that effect the petitioner could
not have been granted the benefit of getting
the property treating as Joint Hindu Family
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
Property. The petitioner except simply
making an averment in Para 3 of the writ
petition, nothing has been placed on record
to establish that the gatas of Khata No.112
were purchased from the nucleus of Joint
Hindu Family and the property as such is a
Joint Hindu Family Property.

12. In the case of Jai Narain v.
D.D.C. & others reported in (1979) RD
198, it was held that the presumption is
only in respect of jointness and not that any
property acquired by members of the
family is a joint family property and this is
a
matter
of
evidence
and
not
of
presumption. In the present case, the
petitioners have failed to adduce any
evidence that the property is a joint family
property.

13. In the case of Bodh Raj v.
Joint Director of Consolidation Faizabad
and Others, in Writ Petition No.676 of
1980 connected with Writ Petition No.23
of 1980, decided on 22.09.1995, wherein it
has been held that there is a presumption
with respect to the jointness of family and
if it is shown or proved to the satisfaction
of the Court then property inherited from a
common ancestor will be deemed to be a
joint property of all. It is also clarified in
the said judgement that joint family funds
must be used for purchase of the property
in order to make it joint and property is
entered in the name of one person then it
has to be proved by other party, who claims
to be a joint property that it was acquired
by the joint family funds, which the
petitioners have failed to establish.

14. The Hon'ble Supreme Court in
the case of D.S. Lakshmaiah and Another
Vs. L. Balasubramanyam reported in 2003
(10) SCC 310, the relevant portion reads as
under:-
"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."

15. Similary, the Coordinate Bench
of this Court in the case of Kunj Bihari
Vs. Ganga Sahai Pande reported in 2013
SCC Online Alld. 13489: 2013 (99) ALR
826 wherein tracing the history and
considering the earlier decision on the
point of Joint Hindu Family and property,
the burden of proof etc. This Court has
held as under:-

"24. The "patriarchal family" may
be defined as a group of natural or
adoptive descendants, held together by
subjection to the eldest living ascendant,
father,
grand-father,
great-grandfather.
Whatever be a formal prescription of law,
the head of such a group is always in
practice, despotic; and he is the object of
respect, if not always of affection, which is
probably seated deeper than any positive
institution. Manu says, "three persons, a
wife, a son and a slave, are declared by
law to have in general no wealth
exclusively their own; the wealth which
they may earn is regularly acquired for the
man to whom they belong." Narada says,
"he is of age and independent, in case his
parents be dead; during their lifetime he is
dependent, even though he be grown old.
4 All. Pancham & Ors. Vs. D.D.C. Sultanpur & Ors.
1315
25. The "joint family" is normally a
transition form from "patriarchal family".
At the death of common ancestors or head
of house, if the family chooses to continue
united, the eldest son would be the natural
head. The former one was head of family by
natural authority, the later other can only
be so by a delegated authority. He is
primus but inter pares. An undivided Hindu
family thus is ordinarily joint, not only in
estate but in food and worship. The
presumption, therefore, is that members of
a Hindu family are living in a state of union
unless
contrary
is
established.
This
presumption however varies inasmuch as it
is stronger in case of real brother than in
case of cousin and farther one go, from the
founder of family, the presumption becomes
weaker and weaker. However, there is no
presumption that a family, because it is
joint, possesses joint property. Under
Mitakshara Law, possession of property is
not necessary requisite for constitution of a
joint family, though where persons live
together, joint in food and worship, it is
difficult to conceive of their possessing no
property whatever, such as, at least,
ordinary household articles which they
would enjoy in common.
.
.

32. The joint undivided family is
the normal condition of Hindu society as
observed in Raghunadha Vs. Brozo Kishroe
(1876) 3 IA 154 and Neelkisto Deb Vs.
Beerchunder (1989) 12 MIA 523. An HUF
is ordinarily joint not only in estate but in
food and worship. Unless contrary is
established, the presumption is that the
members of a Hindu family are living in a
state of union (see: Govind Dass Vs. Kuldip
Singh AIR 1971 Delhi 151 and Bhagwan
Dayal Vs. Mst. Reoti Devi AIR 1962 SC
287). If, however, one of the coparceners is
admittedly living separately from other
members of the family, neither it can be
said that other members do not constitute a
Hindu joint family nor the member living
separately, who has stripped his relation
with the joint family, can be said to be still
a coparcener or member of joint family.
Simultaneously, merely if some members
are working and living at different places,
though own a joint family in common, it
cannot be said that they do not form a joint
Hindu
family.
Since
it
is
only
a
presumption,
the
strength
thereof
necessarily varies in every case. The
presumption of union is stronger in the case
of brothers than in the case of cousins and
farther one goes from the founder of the
family, the presumption becomes weaker
and weaker.
33. Brothers may be presumed to
be joint but conclusion of jointness with
collaterals must be affirmatively proved.
The presumption lies strongly in favour of
father and son that they are living jointly
unless proved otherwise.
34. This presumption, however,
does not apply in respect of property. There
is no presumption that a family, because it
is joint, possess joint property. As per
Mitakshara law, the possession of property
is not a necessary requisite for the
constitution of a joint family, though where
persons live together, joint in food and
worship, it is difficult to conceive that they
are possessing no property whatever, such
as ordinary household articles which they
would enjoy in common.
35. In Sher Singh Vs. Gamdoor
Singh 1997 (2) HLR 81 (SC), the Court
said that once existence of a joint family is
not in dispute, necessarily the property held
by family assumed the character of a
coparcenary property and every member of
family would be entitled, by birth, to a
share in coparcenary property, unless any
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
one of the coparcener pleads, by separate
pleadings and proves, that some of the
properties or all the properties are his selfacquired properties and cannot be blended
in coparcenary property. Merely because
the family is joint, there is no presumption
of joint property. A Hindu, even if he be
joint may possess separate property. Such
property
belongs
exclusively
to
him.
Neither member of the coparcenary, nor his
male issue, acquires any interest in it by
birth. On his death (intestate), it passes by
succession to his heirs and not by
survivorship to the surviving coparcener.
The existence of joint family does not raise
presumption that it owns properties jointly.
But once joint family nucleus is either
proved or admitted so as to draw inference
that such property could have been acquired
out of joint family funds, the burden shifts to
the party alleging self acquisition, to
establish affirmatively, that such property
was acquired without aid of joint family.
Initial burden always lies upon the party
asserting that any item of property is joint
family property.
.
.
38.
In
Appalaswami
Vs.
Suryanarayanamurti and Ors., AIR 1947 PC
189, it was held that Hindu law is very clear.
Proof of existence of a joint family does not
lead to the presumption that property held
by any member of family is joint. The burden
rests upon one who asserts that an item of
property is joint, to establish that fact. But
where it is established that the family
possessed some joint property which, from
its nature and relative value, may have
formed the nucleus, from which property in
question may have been acquired, the
burden shifts to the party alleging selfacquisition, to establish affirmatively that
the property was acquired without the aid
of joint family property/fund.
39. Again in Srinivas Krishnarao
Kango Vs. Narayan Devji Kango AIR 1954
SC 379, it was held that proof of existence
of a joint family does not lead to the
presumption that property held by any
member of family is joint. The burden rests
upon anyone asserting that any item of
property is joint to establish the fact. But
where it is established that the family
possessed some joint property which form
its nature and relative value, may have
formed the nucleus, from which property in
question may have been acquired, the
burden shifts to the party alleging selfacquisition to establish affirmatively that
the property was acquired without the aid
of joint family property.
40. The legal proposition which
emerges therefrom is that initial burden is
on the person who claims that it is joint
family property but after initial burden is
discharged, the burden shifts to the party
claiming that the property was self
acquired and without the aid of joint family
property/fund.
41.
In
Rukhmabai
Vs.
Lala
Laxminarayan AIR 1960 SC 335, the Court
said:
"There is a presumption in Hindu
Law that a family is joint. There can be a
division in status among the members of a
joint Hindu family by refinement of shares
which is technically called "division in
status", or an actual division among them
by allotment of specific property to each
one of them which is described as "division
by metes and bounds". A member need. not
receive any share in the joint estate but may
renounce
his
interest
therein,
his
renunciation
merely
extinguishes
his
interest in the estate but does not affect the
status of the remaining members vis- a-vis
the family property, A division in status can
be effected by an unambiguous declaration
to become divided from the others and that
4 All. Pancham & Ors. Vs. D.D.C. Sultanpur & Ors.
1317
intention can be expressed by any process.
Though prima facie a document clearly
expressing the intention to divide brings
about a division in status, it is open to a
party to prove that the said document was a
sham or a nominal one not intended to be
acted upon but was conceived and executed
for an ulterior purpose. 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.
But 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 setting up the claim that it is his
personal property..." (emphasis added"

16. The CH Form 2A issued under
Rule 21 which has heavily been relied by
the learned counsel for the petitioners to
establish the title over Khata No.112 as a
co-tenure holder but after the perusal of the
same which has been enclosed as Annexure
No.S.A.-4 to the supplementary affidavit
filed on 20.09.2023 on behalf of the
petitioners in which only the name of Late
Pancham was entered only in Gata No.95
as tenure holder and in rest of the gatas the
name of Late Pancham and Late Bairagi are
not shown as tenure holder except in
Column No.9 in some gatas the name of
Late Bairagi and in some gatas name of
Late Pancham had been shown as 'कब्ज़ा
बिुत हदन से बतौर सिखारेदार बताया',.

17. On being asked a specific
query from the learned counsel for the
petitioners to show any provision or case
law that the title can be established on the
basis of the possession and by depositing
the rent, except where the rights have been
claimed to have been perfected by adverse
possession. The learned counsel for the
petitioners has very fairly submitted that
there is neither any provision in the statue
or any law which provides possession and
depositing the rent for the purpose of
determination of title.

18. The title is to be seen from the
basic
fasli
year
from
the
date
of
consolidation proceedings and as per
admitted case of both the sides, the
consolidation year was 1970 and basic fasli
year would be 1363 and in both the
Khatauni of basic fasli year enclosed by the
petitioners in their supplementary affidavit,
even in that Khatauni the name of Late
Pancham and Late Bairagi are also not
recorded, so from the revenue records the
petitioners have failed to show entry in
their names in the revenue records. The
entries in the Khatauni, which is a
document of title and the entries in the
Khasra which a document of possession
only, the petitioners had failed to show any
entries in the Khataini. Even CH Form 2A
which has heavily been relied as admitted
except Gata No.95 in other Gatas of Khata
No.112 the petitioners were not recorded as
tenure holders.The petitioners had not
enclosed any copy of Khasra which
determines the possession.

19. Learned counsel for the
petitioners is also unable to dispute that the
names
of
the
petitioners
or
their
predecessors were never ever entered in the
revenue records in the gatas of Khata
No.112 and the entry shown in CH Form
2A issued under Rule 21 the name of
Petitioner No.1 is on separate Gata, which
is not in Khata No.112.

20. The compromise on the basis
of which the petitioners are claiming their
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
right is nonest in the eyes of law for the
reason it is an admitted case of the parties
that Pandoi and Ram Lakhan are the cotenure holders of the gatas of Khata No.
112 the compromise / agreement was
signed only by Ram Lakhan and it was not
signed by the Pandoi who had preferred the
revision, the petitioners have failed to
establish their title / ownership on the gatas
of Khata No.112 from the revenue records
as discussed above and this Court finds no
illegality in the revisional order.

21. In view of the facts and
circumstances
of
the
case
and
the
discussion made hereinabove, the writ
petition is devoid of merits and is
accordingly dismissed.
----------
(2024) 4 ILRA 1318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.04.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-B No. 382 of 2024

Surendra Bahadur Singh & Ors.
 ...Petitioners
Versus
Chakbandi Aayukt U.P. Saptam Tal Indra
Bhawan Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Sandeep Tiwari

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article 226-Consolidations of Holdings
Act,1953-Sections 10,20,23,52,9A(2)-The
petitioners claimed that proceeding with
the
notifications/publications
u/s
10,20,23,52 of the act without resolving
their objections u/s 9A(2) would violate
their legal rights-Held, the court ruled
against
the
petitioners
emphasizing
section 52(2) and Rule 109(A)(1) provide
mechanisms
to
address
unresolved
objections
even
after
publication
or
notification-hence,
petitioners
rights
would not be prejudiced by the issuance
of the notifications.(Para 1 to 11)

The writ petition is dismissed. (E-6)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Sandeep Tiwari,
learned counsel for petitioner as well as
Shri Hemant Kumar Pandey, learned
Standing Counsel.

2. The present writ petition has
been preferred for issuing direction to the
Consolidation Officer, District Amethi, not
to make any notification/publication of
Section 10, Section 22 and Section 27 of
the U.P. Consolidation of Holdings Act,
1953 (hereinafter referred as Act, 1953) and
to restrain the Consolidation Officer (C.O)
to prepare the final documents with a
further prayer that till the decision in the
revision/Review, no publication shall be
made under Section 10 , 19, 29 and 23 of
the Act, 1953.

3. Learned counsel for petitioners
has submitted that the petitioners inherited
the property of his maternal grandparents
(after
the
demise
of
their
maternal
grandfather in the year 1976 and maternal
grandmother
in
the
year
1986).
A
notification has been issued under Section
4A(2), against which the petitioners have
filed an objection under Section 9A(2) of
the Act, 1953. The objection of the
petitioners
was
not
decided
by
the
Consolidation Officer, and the petitioners
had no other option except to approach this
Court by filing writ petition No. 1204 of
2022, (Surendra Bahadur Singh versus