# Ram Asrey & Ors v. D.D.C. & Ors

- **Citation:** (2024) 1 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-02
- **Case number:** Writ-B No. 2306 of 1978
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-asrey-ors-v-d-d-c-ors-51383
- **Pages:** 24

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Sections 19-A(2) - According to
family settlement, descendants of Bandhau
allotted
land
of
Village
Khandasara
and
descendants of Gopi allotted land of Village
Chaupuria - Partition suit filed by Bandhau's
descendants
concerning
Village
Chaupuria,
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
745
decreed & anr. partition suit filed by petitioners
concerning Village Khandasara, decreed - Khata
No. 88 of Village Khandsara recorded in name of
Bandhau, whose descendants are opposite
parties - Petitioners, descendants of Gopi,
asserted Khata No. 88 belonged to Bhairon - In
objections, claimants claimed Khata No. 88 as
joint family property, asserted entitlement to 1/4
share - Claimants belong to sixth generation,
required to establish Bhairon's property never
partitioned, for this purpose, required to prove
from acquisition of property till filing of claim in
consolidation proceedings, family of cousins and
uncle remained joined, after death of original
recorded tenure holder, eldest member's name
recorded in revenue records, or that Bandhau
was karta of family, failed to prove - As per
settlement of Abhai Narain, considered by DDC
while recording finding on partition, land of
Bhairon partitioned - To controvert this, neither
Abhai
Narain's
St.ment
produced
nor
submissions advanced - St.ment of Patiram
confirms partition - Further, claimants' suit for
partition concerning land in Village Khandsara,
excluding Khata No. 88, demonstrates land,
including Khata No. 88 allotted to Bandhau's
descendants, belonging to Bhairon partitioned,
claimants accepted same, except regarding land
in suit. (Para 30)

Writ petition dismissed. (E-13)

List of Cases cited:

## Text

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744 INDIAN LAW REPORTS ALLAHABAD SERIES
issues were not framed, this Court is of the
view that the same is unsustainable in the
light of Issue Nos.1 and 2 framed by the
Consolidation Officer, indicated in Para 13
of this judgment.

41. In regard to plea that un-rebutted
averments made in the petition regarding
possession should be considered and the
impugned orders be set aside, this Court is
of the view that in the instant petition the
findings recorded by the authorities under
the Act of 1953 are to be considered on the
basis of material available on record and
the facts and evidence adduced by the
parties before the authorities under the Act
of 1953 and as such, the contention so
raised is completely misconceived.

42. The contention of the learned
counsel for the petitioners based upon
Section 180(2) of the Act of 1939 is
completely misconceived as in the instant
petition the same has not been pleaded and
also for the reason that the case of the
petitioners is based upon the plea of
adverse possession.

43. The decision of Board of Revenue
in the case of Hazari vs. Mathura (B.R.),
1991 SCC OnLine BoR (UP) 27; 1992
RD 79; is not an authority on the question
that where the person is claiming rights
over the land on the basis of plea of adverse
possession and relies upon the recorded
entries, he is not to establish that the entries
were made in accordance with the mode
and manner prescribed under law. In the
instant case, the claim of the petitioners
based upon the plea of adverse possession
was based upon the entries in Khasra and
Khatauni, as such, they were required to
prove the said entries and they failed to
prove the same by adducing proper
evidence.

44. Thus, for the reasons aforesaid,
the findings recorded by the Assistant
Settlement Officer of Consolidation and
Deputy
Director
of
Consolidation,
according to which, the entries in Khasra
and
Khatauni
produced
by
the
petitioners were not made in the revenue
record in terms of mode and manner
prescribed in U.P. Land Records Manual
and that no evidence was produced by
the petitioners to prove that before
making entries PA-10 was issued and
served upon the recorded tenure holder
and Land Management Committee, are
justified.

45. Accordingly, this Court does not
find any merit in this petition. It is
accordingly dismissed. No order as to
costs.
----------
(2024) 1 ILRA 744
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 2306 of 1978

Ram Asrey & Ors. ...Petitioners
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioners:
U.S. Sahai, Uma Shankar Sahai

Counsel for the Respondent:
C.S.C., L.P. Misra, Surendra Sharma

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Sections 19-A(2) - According to
family settlement, descendants of Bandhau
allotted
land
of
Village
Khandasara
and
descendants of Gopi allotted land of Village
Chaupuria - Partition suit filed by Bandhau's
descendants
concerning
Village
Chaupuria,
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
745
decreed & anr. partition suit filed by petitioners
concerning Village Khandasara, decreed - Khata
No. 88 of Village Khandsara recorded in name of
Bandhau, whose descendants are opposite
parties - Petitioners, descendants of Gopi,
asserted Khata No. 88 belonged to Bhairon - In
objections, claimants claimed Khata No. 88 as
joint family property, asserted entitlement to 1/4
share - Claimants belong to sixth generation,
required to establish Bhairon's property never
partitioned, for this purpose, required to prove
from acquisition of property till filing of claim in
consolidation proceedings, family of cousins and
uncle remained joined, after death of original
recorded tenure holder, eldest member's name
recorded in revenue records, or that Bandhau
was karta of family, failed to prove - As per
settlement of Abhai Narain, considered by DDC
while recording finding on partition, land of
Bhairon partitioned - To controvert this, neither
Abhai
Narain's
St.ment
produced
nor
submissions advanced - St.ment of Patiram
confirms partition - Further, claimants' suit for
partition concerning land in Village Khandsara,
excluding Khata No. 88, demonstrates land,
including Khata No. 88 allotted to Bandhau's
descendants, belonging to Bhairon partitioned,
claimants accepted same, except regarding land
in suit. (Para 30)

Writ petition dismissed. (E-13)

List of Cases cited:

1. Rangammal Vs Kuppuswami, (2011) 12 SCC 220

2. Jai Narain Vs D.D.C., 1979 RD 198

3. Sheo Nath Vs D.D.C., 1983 RD 107

4.
Jagdamba
Singh
Vs
Dy.
Director
of
Consolidation, 1984 SCC OnLine All 689 : 1985
All LJ 671, (Paras 14 to 29)

5. Sanehi & anr. Vs Deputy Director (Cons.)
Faizabad & ors. 1985 All CJ 2306, (Paras 6, 7)

6. Bodh Raj Vs Joint Director of Consolidation,
Faizabad, 1995 SCC OnLine All 614 : (1996) 27
ALR 98, (Para 12)

7. Bajrangi Vs Joint Director Cons. Raebareli
reported in 2020 SCC OnLine All 2066 : (2020)
147 RD 683, (Paras 22 to 33)
8. Dropadi Devi Vs Shiv Chandra Dixit, 2020 SCC
OnLine All 104, (Paras 51 to 55)

9. Bhagwat Sharan Vs Purushottam, (2020) 6
SCC 387 : 2020 SCC OnLine SC 348, (Paras 10
to 12)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Case called out. No one appeared
on behalf of private respondents to oppose
this petition. The present petition is listed
under the heading 'THESE CASES SHALL
NOT BE ADJOURNED'. As such, this
Court proceeded to hear the case finally.

2. Heard learned counsel for the
petitioners and Sri Hemant Kumar Pandey,
learned State counsel.

3. By means of this petition, the
petitioners have challenged the order dated
21.05.1973 passed by Assistant Settlement
Officer of Consolidation, District Sultanpur
(hereinafter referred to as "ASOC") in
Appeal Nos. 992 and 1974, which were
filed
under
Section
11(1)
of
U.P.
Consolidation of Holdings Act, 1953 (in
short "Act of 1953"). The petitioners have
also challenged the order dated 18.07.1978
passed
by
Deputy
Director
of
Consolidation,
District
Sultanpur
(hereinafter referred to as "DDC") in
Revision Nos. 2645 and 2638, which were
filed under Section 48 of the Act of 1953.

4. Before proceeding further, it would be
apt to indicate here that earlier this petition
was allowed vide order dated 20.10.2008.
Thereafter,
an
application
(C.M.
Application No. 127124 of 2014) seeking
recall of the order dated 20.10.2008 was
filed alongwith an application (C.M.
Application No. 127123 of 2014) for
condonation of delay and this Court after
taking note of the averments made in the
746 INDIAN LAW REPORTS ALLAHABAD SERIES
application(s), recalled the final order dated
20.10.2008 vide order dated 31.08.2017,
which on reproduction reads as under:-

"C.M.Application
No.127123
of
2014

Considering the statement of affidavit
filed in support of the application, the
application is allowed and the delay in
filing the application for recall of order
dated 20.10.2008 is condoned.

C.M.Application
No.127124
of
2014

This is an application for recall of
order dated 20.10.2008.

The
learned
counsel
for
the
applicants/respondents has submitted that
the opposite parties 3, 4, 5, 6 and 7 had
already died and the applications for
substitution of their legal heirs were
pending, but it appears that those were
escaped from mentioning to the court and
this court proceeded to decide the matter
finally against the dead persons vide
order dated 20.10.2008.

Despite
time
provided
to
the
petitioners, no objection has been filed. I
have
considered
the
aforesaid
submissions and found it appropriate to
recall the order dated 20.10.2008 and
restore the writ petition to its original
number.

Let a fresh notice be issued to the
petitioners to decide the case afresh on
merit."

5. Now reverting to the matter, the
dispute in the present case relates to
Khata
No.
88
situated
at
Village
Khandsara,
Tehsil
Kadipur,
District
Sultanpur. In regard to Khata No. 88, the
original petitioner No. 1 namely Ram
Asrey and Abhai Narain (father of original
petitioner Nos. 2 & 3 namely Ram Pyarey
and Radhey Shyam), both sons of Sahadeo
(in short "claimants/objectors"), filed the
objection under Section 9-A(2) of the Act
of 1953. In this objection, the relief was
also sought with regard to Deep Narain son
of Sahadeo. It appears from the copy of
order dated 21.06.1971 (Annexure No. 4 to
this petition) passed by Consolidation
Officer, Kadipur, Sultanpur (hereinafter
referred to as "CO') in Case No. 848 that
CO declared that Ram Asrey, Abhai Narain
and Deep Narain are entitled to 1/4 share of
Khata
No.
88.
The
claim
of
claimants/objectors before the CO was to
get share in land indicated in Khata No. 88.
The claimants/objectors before the CO
stated that it is a joint property and
accordingly they are entitled to 1/4 share of
the same, as is apparent from para 4 and 5
of the objections (Annexure No. 1 to this
petition), which are extracted hereunder:-

"र्ारा 4- यह वक बाद भूवि िें आपवत्त कताण
का 1/4 भाग है ि इस हद तक आपवत्त कताण तथा
वद० प०नं० 7बाद भूवि पर अवर्कृत है।

र्ारा 5- यह वक दीप नरायन आपवत्त कताण
के रूप िें नही सक्तम्मवित ह सके हैं अतः उन्हें
वद०प०नं० 7 बनाया जाता है। आपवत्त पि उनके
भी वहत िें प्रस्तुत वकया जा रहा है। अतः प्राथणना
है वक बाद भूवि के 1/4 भाग क िावियत
आपवत्त कताण तथा वद०प०नं० 7 क दी जाये।"

6. The claim of above named
claimants/objectors was opposed by Ram
Abhilakh and others. In the reply to the
objections under Section 9-A(2) of the Act
of 1953, Ram Abhilakh and others stated
that Gopi and Bandhau, sons of Bhairon,
were living separately. Gopi was the elder
brother and hence the entry with regard to
Bandhau
cannot
be
looked
into
in
representative capacity. The branch of Gopi
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
747
has been out of possession and hence their
claims have been extinguished.

7. The CO decided the objection on
21.06.1971 in favour of above named
claimants/objectors holding that partition
never took place and provided 1/4 share in
Khata No. 88 to the objectors.

8. Being aggrieved, theAppeal Nos.
992 and 1974 were filed broadly on the fact
that partition took place earlier, as such, the
claimants/objectors were not having right
over the land indicated in Khata No. 88.
The appellate authority/ASOC allowed the
appeals vide order dated 21.05.1973 and
interfered in the order passed by CO dated
21.06.1971. The relevant portion of the
order passed by ASOC dated 21.05.1973 on
reproduction reads as under:-

"वििावदत
खाता
के
नम्बरान
पर
अपीिकताण गण के पूिणज ं का नाि अंवकत है।
यवद खाते के द चार नम्बरान पर सह पूिणज का
नाि दजण वसद्ध ह त जायदाद सह पूिणज के
सिय की नहीं सिझी जा सकती है। क्य ंवक उस
सिय से ि नम्बरान उसी दशा िें दजण नहीं चिे
आ रहे हैं विपक्षीगण द्वारा प्रवदष्ट की गयी 1868
की रूविंग इस िुकदिे िें िागू नहीं ह गी।
क्य ंवक विपक्षी द्वारा यह सावबत नहीं वकया गया
है वक वििावदत भूवि जब िी गई उस सिय यह
ि ग एक साथ रहते थे तथा संयुक्त पररिार के
जायदाद से िी गयी थी। अपीिकताणगण द्वारा
प्रवदष्ट की गयी आर०डी० 1969 की पृष्ठ 175 पर
की रूविंग इस िुकदिे िें िागू ह ती है वजसिें
विपक्षीगण स्वयं के नजदीकी खानदान िें
सहखातेदारी का हक स्वीकृत नहीं वकया गया
है। विपक्षीगण का वहस्से के अनुसार िािगुजारी
अदा करने या कब्जे का प्रिाण भी नहीं वििता।
खाते िें केिि कुछ नम्बरान पर कब्जा अंवकत
ह ने से सहखातेदारी का हक नहीं िाना जा
सकता। इन सब तथ् ं के आर्ार पर चकबंदी
अवर्कारी के वनणणय से वजसिें विपक्षी अभय
नरायन आवद क सहखातेदार िाना गया है। िै
सहित नहीं हूूँ विपक्षीगण इस खाते िें अपने क
सहखातेदार नहीं वसद्ध कर सके।

अपीि नम्बर 992 पूणण रूप से तथा अपीि
नम्बर 1674अंशतः केिि अभय नरायन आवद
के सम्बि िें स्वीकृत की जाती है तथा राि
अवििाख आवद के सम्बि िें खाररज की गयी।
वनणणय चकबन्दी अवर्कारी वदनांक 21.6.71 रद्द
वकया गया। खाता नम्बर 88 का बििारा वनम्न
प्रकार से वकया गया। तथा अभय नरायन आवद
की आपवत्त खाररज की गयी। िाद अिि दरािद
विवसि दाक्तखि दफतर ह ।"

9. Challenging the order dated
21.05.1973 passed by ASOC, theRevision
Nos. 2645 and 2638 were filed under
Section 48 of the Act of 1953. The
revisional authority/DDC dismissed the
revisions vide order dated 18.07.1978,
which on reproduction reads as under:-

"यह द वनगरावनयां सबअच० के आदेश
वदनांक 21-5-73 के विरुद्ध प्रस्तुत की गई है ज
उन्ह ंने अपीि सं० 992 आवद िे पाररत वकया है।
चूूँवक ये द न ं वनगरावनयां एक दूसरे से सम्बक्तित
है तथा एक ही प्राकृवत की है अतः िै उनका
वनस्तारण एक ही साथ करना उवचत सिझता हूूँ।

िैने पक्ष ं क सुना तथा कागजात का
अिि कन वकया।

वनगरानीकताणगण वििावदत खाते की भूवि
क सहपूिणज भैरि विश्र के सिय की भूवि कहते
हुए सहखातेदारी की िाूँग करते है। च०अ० के
द्वारा उनकी सहखातेदारी की िाूँग स्वीकार की
गई वकन्तु स०ब०अ०च० ने उनकी सहखातेदारी
की िाूँग क वनरस्त कर वदया तथा आर्ारिषण के
इन्द्राज क वनगरानीकताण के विरुद्ध कायि
रखा। पक्ष ं के िध्य वनम्न िंशाििी प्रस्तुत की गई
ज वक पक्ष ं क स्वीकार है।
748 INDIAN LAW REPORTS ALLAHABAD SERIES

वनगरानीकताणगण अपने क ग पी की साखा
का बताते हुए तथा वििावदत भूवि क भैरि की
बनाई हुई बताते हुए सहखातेदारी की िाूँग करते
हैं जबवक विपक्षीगण इस भूवि क बिु के द्वारा
ग पी से अिग रहते हुए अवजणत की हुई बताते
है। तथा उनकी ओर से यह कहा गया वक पक्ष ं
के िध्य 40-50 िषण से अवर्क अिगा वििगी है
ि पक्ष ं के िध्य पाररिाररक विभाजन ह चुका
है। इस तथ् क वनगरानीकताणगण भी स्वीकार
करते है। यह भूवि ग्राि खाडसरा िेंःं क्तस्थत है।
विभाजन िें विपक्षीगण की ओर से कहा गया है
वक इस ग्राि की भूवि विपक्षीगण क प्राप्त हुई
तथा विपक्षीगण ही इस ग्राि के रहने िािे हैं
जबवक वनगरानी कताण ग्राि चौपररया के रहने
िािे हैं तथा िहां की भूवि पाररिाररक विभाजन
के अनुसार वनगरानीकताणगण क प्राप्त हुई है।
वनगरानीकताण के अवर्िक्ता द्वारा िेरा ध्यान इस
ओर आकवषणत कराया गया वक स०ब०अ०च० ने
अपने आदेश िें यह गित विखा वदया है वक
वििावदत भूवि बन्द िस्त ओिि, द यि तथा
स यि ि उसके िाद केिि विपक्षीगण के नाि
या उनके पूिणज ं के नाि दजण है जबवक इस भूवि
के अनेक गािे द न पक्ष ं के सहपूिणज बिू के
नाि भी दजण है। तथा इन्द्र के नाि भी दजण है।
वनगरानीकताण के अवर्िक्ता की यह बात
अवभिेख के अिि कन से सत्य पाई गई वक
विपक्षीगण के अवर्िक्ता द्वारा यह कहा गया वक
वनगरानीकताण अपने ही साखा के राि िन रथ
क सहखातेदार के अवर्कार स्वीकार नहीं करते
हैं अतः िह उससे कैसे सहखातेदार के अवर्कार
िाूँग सकते हैं। उसके विरुद्ध वनगरानीकताण के
अवर्िक्ता द्वारा यह कहा गया वक राििन रथ
की ओर से िाननीय उच्च न्यायािय िें अभी िाद
का फैसिा नहीं हुआ इसके सिथणन िें उन्ह ंने
िाननीय उच्च न्यायािय के ररिान्ड आदेश की
नकि प्रस्तुत की वजससे यह वसद्ध ह ता है वक
अभी राििन रथ ि उनके िध्य भी िुकदिेबाजी
चि रही है। इस प्रकार से इस तकण के आर्ार
पर विपक्षीगण क क ई िाभ नहीं प्रदान वकया
जा सकता है। विपक्षीगण के अवर्िक्ता ने िेरा
ध्यान अभय नरायन के बयान की ओर आकवषणत
वकया वजसिें अभय नरायन ने यह स्वयं बयान
वदया है वक वििाद भैरि के सिय की भूवि से
सम्बक्तित है तथा ग्राि खडसरा के भूवि के
बििारे के बारे िें उन्ह ंने दािा वकया था ज दािा
भैरि के सिय की भूवि के बारे िें स्वीकार वकया
जा चुका है इस प्रकार से स्वयं अभय नरायन के
बयान के अनुसार ज भूवि वििावदत थी उसके
बारे िें बििारे के दािे के अनुसार उन्हें हक
पहिे से ही प्राप्त ह चुकी है। यह बात सिझ िें
नही आती है वक अब शेष भूवि के बारे िें भी
वनगरानीकताण क क ई अवर्कार प्राप्त था त
उन्ह ंने उस भूवि के बारे िें भी क्य ं नहीं उसी
सिय बििारे के विए दािा प्रस्तुत वकया। पक्ष ं
के िध्य बििारा बहुत असे पूिण से स्वीकार है
वजससे यही वसद्ध ह ता है वक पक्ष ं के िध्य
काफी िम्बे असे से पाररिाररक विभाजन ह
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
749
चुका है। तथा इस विभाजन के अनुसार ग्राि
खाडसरा की भूवि विपक्षीगण क प्राप्त हुई थी
तथा ग्राि चौपररया की भूवि वनगरानीकताणगण
क प्राप्त हुई थी। िे इस विभाजन से सन्तुष्ट भी
थे। तथा वजस भूवि से वनगरानीकताणगण संतुष्ट
नहीं थे उसके बारे िें पहिे भी विभाजन का
दािा कर चुके है। इससे यही वसद्ध ह ता है वक
ग्राि खाडसरा की शेष भूवि के बारे िें यह
विपक्षीगण के अवर्कार क स्वीकार कर चुके
हैं। यद्यवप वनगरानीकताण के अवर्िक्ता ने यह
तकण प्रस्तुत वकया वक पाररिाररक विभाजन से
पक्ष ं के िध्य अंवति बििारा नहीं िाना जाना
चावहए वकन्तु इतने िम्बे असे पूिण वकए गए
पाररिाररक विभाजन का भी उतना ही िहत्व है।
तथा यह विभाजन पक्ष ं के िध्य पिाििी पर
उपिब्ध साक्ष् से बििारा के रूप से स्वीकार
कर विया जाना प्रतीत ह ता है। इसके अवतररक्त
भैरि ि बिऊ आवद के सिय से ज भूवि चिी
आ रही ि उसकी सिरूपता िे भी पयाणप्त अंतर
ह चुका है चूूँवक पक्षगण स्वयं काफी असे पूिण से
पाररिाररक विभाजन स्वीकार करते है। इसविए
यह िाद िें सफि ह ने हेतु वनगरानीकताण द्वारा
यह आिश्यक था वक िे वसद्ध करते वक पक्ष ं के
सहपूिणज भैरि के िाद ज भूवि बिऊ अथिा
ग पी के द्वारा अवजणत की गई िह संयुक्त पररिार
िें रहते हुए तथा संयुक्त सम्पवत्त से अवजणत की
गई थी। इस सम्बि िें वनगरानीकताण ने बिऊ
क अगुआ पररिार भी ह ना वसद्ध नहीं वकया है
तथा चूूँवक बिऊ तथा इन्द्र के ही नाि अवतररक्त
रूप से अिग-अिग भूवि दजण की गई इसविए
भी विपक्षी के अवर्िक्ता के इस तकण िें बि
प्रतीत ह ता है वक ग पी तथा बिऊ के सिय से
ही द न पक्ष ं के िध्य विभाजन ह चुका है तथा
द न ं पक्ष िें अिग अिग रहकर सम्पवत्त अवजणत
की।

उपर क्त
वििेचन
के
आर्ार
पर
वनगरानीकताणगण अपने िाद क वसद्ध करने िें
सफि नहीं रहे थे तथा सबअच० का वनणणय सही
ि न्यायसंगत प्रतीत ह ता है।

द न ं वनगरावनयां वनरार्ार हैं और खाररज
की जाती है।"

10. In the aforesaid background of the
case, the present petition has been filed.

11. Assailing the impugned orders
dated 21.05.1973 and 18.07.1978, learned
counsel for the petitioners submitted that
the family property, which was originally
recorded in the name of Bhairon, was never
partitioned, as such, the petitioners and
their predecessors were entitled to share in
the
property
including
the
property
indicated in Khata No. 88, as such, the
findings recorded by the ASOC and DDC
in the impugned orders dated 21.05.1973
and 18.07.1978, respectively, are liable to
be interfered with by this Court.

12. To substantiate the aforesaid,
learned counsel for the petitioners only
placed reliance on the order passed by the
trial court dated 18.05.1961 in Suit/Case
No. 32 of 1960, which was filed under
Section 176 of U.P. Zamindari Abolition
and Land Reforms Act, 1950 (in short "Act
of 1950") byAbhai Narain, Deep Narain
and Ram Asrey.

13. Based upon the order dated
18.05.1961, it has been stated that the
aforesaid suit was filed with regard to
property situated at Village Khandsara, in
which, the plea of partition was taken,
however, the same was not accepted and
considering the pleadings on record, the
suit was decided in favour of plaintiffs
holding that they are having 1/2 share over
the property in suit.

14. At this stage, on being asked that
which was the property in issue in suit,
learned counsel for the petitioners, based
750 INDIAN LAW REPORTS ALLAHABAD SERIES
upon the copy of order dated 18.05.1961 as
also the pleadings on record, failed to
indicate the property in issue in suit.

15. It is appropriate to mention here
that the order passed in partition suit No.
32 of 1960 dated 18.05.1961 indicates
that the case of above named plaintiffs in
the suit was to the effect that the land in
suit was in co-tenancy of the plaintiffs &
defendant Nos. 3 to 9 and the same was
situated at Village Khandsara and the
allegation that the land in suit was
partitioned, was not accepted by the
regular/trial court.

16. The case of the side opposite, as
appears from counter and supplementary
counter affidavit, is to the effect that
family partition took placemore than 50
years ago and as per the same, the land
situated at Village Khandsara went
towards the share of Bandhau's branch
and land situated at Village Chauparia
went towards the share of Gopi's branch.
To support the fact related to partition,
side opposite has brought on record the
statement
of
one
Patiram
(defence
witness), which on reproduction reads as
under:-

"िैं पतीराि सुत ढ ढई उिर 55 साि सा०
खडासरा प ० अल्देिऊ तहसीि कादीपुर
िहल्फ बयान वकया वक आराजी वनजाई जानता
हूूँ। बर्ऊ ि ग पी क जानता हूूँ ये द न अिग
अिग रहते थे इनकी खेती बारी रहन सहन सब
अिग ह गय था ग पी चौपविया रहते थे िभऊ
खडसरा रहते ग पी बर्ऊ िें ग पी बडे थे द न ं
सगे भाई थी आराजी विजई िेरा वजजा के जिाने
की नहीं है। यह हिारे आजा िेनी िार् क
बनाई है ये ि ग चौखविया िें िुर्त से रहते है।
इनकी क ई खेती बारी इस गाूँि िें नहीं है और न
इनका क ई कब्जा ि दखि ही है और न ये ि ग
कभी कब्जा ि दखि करने जाते है हिारी कुछ
जिीन िातहती थी ज िेरी जिाने की थी वजसके
बारे िें दािा दायर करके अपना वहस्सा िे चुके
है आजा से िािूि हुआ वक यह आराजी िेनी
िार्ि क बनाई है और ग पी ि िजऊ अिग
अिग रहते थे।"

17. Considered the aforesaid and
perused the record.

18. Undisputedly, the case setup by
the original petitioner No. 1, predecessors
in interest of the original petitioner Nos. 2
& 3, before the CO was based upon the fact
that the land recorded in Khata No. 88 is a
joint property, as such, they are entitled to
the
share.
To
prove
the
jointness,
petitioners' counsel has placed reliance on
the order passed by regular/trial court dated
18.05.1961.

19. The CO while allowing the claim
of the petitioners specifically observed that
the onus of proving partition in the family
was on the defendants but they failed to
produce cogent evidence.

20. However, as per the established
principles, the claimant has to prove his
case and he can succeed on the strength of
his own legs and not on the weakness of
side opposite. In the case of Rangammal v.
Kuppuswami, (2011) 12 SCC 220, the
Hob'ble Apex Court observed that "Thus,
the Evidence Act has clearly laid down that
the burden of proving a fact always lies
upon the person who asserts it. Until such
burden is discharged, the other party is not
required to be called upon to prove his
case. The court has to examine as to
whether the person upon whom the burden
lies has been able to discharge his burden.
Until he arrives at such conclusion, he
cannot proceed on the basis of weakness of
the other party."
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
751

21.

In
the
case
ofJai
Narainv.D.D.C.,[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. It may be thrown in the
common stock or the members may
intend it to be treated as joint family
property or it may be acquired by joint
family nucleus. But this is a matter of
evidence and not of presumption.

22.

In
the
case
of
Sheo
Nathv.D.D.C.,[1983 RD 107] it was held
that a member of the joint family or even
a Karta of the family can acquire property
for himself and in his own name and that
the other members of the family would
have no interest or share in it if he had
acquired it from his own funds. But if the
tenancy holding was acquired with the
aid and assistance of the joint family
funds while the family was joint, then
other members of the joint family would
also have a share in it although it may be
recorded in the name of an individual
member of the joint family. It was also
held in this case that it is well settled that
the claim of co-tenancy rights cannot be
upheld merely on the strength of recorded
possession over certain plots of the
disputed holding and receipt for rent and
canal dues made by the claimant. 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.

23. In the judgment passed in the case
of Jagdamba Singh v. Dy. Director of
Consolidation, 1984 SCC OnLine All 689
: 1985 All LJ 671, this Court observed as
under:-

"14.It is fairly well settled that in order
to entitle a party to claim co-tenancy rights
in the holding on the ground of its being
ancestral the unbroken identity of the
holding
has
got
to
be
established
throughout the period. If the identity has
changed of the holding the claim cannot
succeed. This view has been expressed in
several decisions of Board of Revenue and
also of this Court in the cases noted
below:-

(1)
1943
Rev
Dec
567
(BR)Jodhiav.Bhikwa.

(2) 1942 Rev Dec 379 (BR)Hamid
Aliv.Benares Bank.

(3) 1942 Rev Dee 401 (BR)Mohd.
Yasinv.Mohd. Shafi.

(4)
1945
Rev
Dec
122
(BR)Rajaramv.Narain Singh.

(5) 1969 Rev Dec 175 (BR)Abhai
Narainv.Ram Manorath.

(6)
1973
Rev
Dec
242
(BR)Aminuddinv.Kamuruddin.

(7) 1975 Rev Dec 195 (BR)Ram
Narainv.Buddhu.

(8) 1963 Rev Dec 37 (BR)Mahadeo
Singhv.Sunder Kewat.

(9) 1979 Rev Dec 125 : (1979 All LJ
NOC 47) (BR)Balwantiv.Bhaiya Ram.

(10)
1983
(1)
Lucknow
Civil
Decision, 40 (HC)Jhagroov.The Deputy
Director of Consolidation.

15.In all the aforesaid decisions it has
been consistently held that in order to
uphold the claim of co-tenancy rights on
the ground of land being ancestral it is
essential that the entire land of the holding
of the common ancestor must have come
down in the identical form an it must have
remained unchanged and intact. It would,
however, be correct to say that where as a
752 INDIAN LAW REPORTS ALLAHABAD SERIES
result of survey made during settlements,
the area of some plots might have
decreased or increased or that some plot or
plots are eliminated for some explained
reason from the holding in question viz.
having fallen in the bed of river due to the
alluvial and deluvial action of the river or
by the construction of the canal etc., then in
such event it cannot be said that there is
break in the identity of the holding in
dispute. The slight change like elimination
of certain plot or the increase or decrease in
the area of certain plots for the aforesaid
reasons shown would not operate to destroy
the identity of the holding coming down in
identical form in the family from the time
of common ancestor. But in order to uphold
the claim of co-tenancy rights on the
ground of land being ancestral it must be
established by the claimant that the holding
has come down intact and in identical form
that it has not been sub-divided or resettled
with one or some of the heirs or with the
strangers. Thus, where the disputed holding
has not come intact in the identical form
and only some of the plots of the holding
belonging to common ancestor are found
included as in the present disputed holding
it would not make it ancestral holding so as
to give a share in it to the claimants on that
ground nor it would be permissible to pick
up those plots from the holding and declare
them to be ancestral property and give a
share in those plots to the claimant.

16.Learned counsel for the opposite
parties had urged that in the present case
there is no evidence regarding resettlement
of the land with Mata Dihal Singh, and, as
such, the opposite parties 1 to 3 have
committed no error in giving co-tenancy
rights to opposite parties 5 to 8 in those
plots of the holding which initially
belonged to Devi Singh. I am unable to
agree with this contention. In second
settlement of 1301F, the present holding in
dispute was recorded in the name of Mata
Dihal Singh. Although it contained 19 plots
which initially belonged to Devi Singh, but
this holding consisted of 43 plots with an
area of 43 bighas, 19 biswas and 16
biswansis on an annual rent of Rs. 117-6-3.
It is thus evident that 24 plots which did not
belong to Devi Singh were also included in
the holding which was settled with Mata
Dihal Singh on aforesaid annual rent by the
then landlord. Similarly, in 1301 F., a
separate holding is recorded in the name of
Ram Baran Singh consisting of 19 plots out
of which 5 plots belonged to Devi Singh.
These two holdings were thus apparently
settled by the landlord separately with these
persons, Mata Dihal Singh and Ram Baran
Sngh. This entry is 90 years old and it is
practically impossible to produce direct
evidence
on
the
question
regarding
settlement of land by the landlord with
these persons. The entry itself affords the
evidence regarding settlement with these
persons - especially when all those plots
which belonged to Devi Singh had not
come down in identical form in none of
these holdings which came to be recorded
separately in the name of Mata Dihal Singh
and Ram Baran Singh. In this view of the
matter I do not find any substance in the
aforesaid arguments of the learned counsel
for the opposite parties. It is not disputed
before me that the suits for ejectment and
arrears of rent were filed by the landlord
against Mata Dihal Singh and also against
Ram Baran Singh in respect of the landholding which were recorded in their
names. Admittedly, Ram Baran Singh was
ejected in the suit filed by the landlord for
arrears of rent and ejectment as he could
not pay the arrears of rent outstanding
against him. The grandfather of the
petitioners Mata Dihal Singh was not
ejected as rent was paid by him. Landlord
had also filed suits for ejectment in respect
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
753
of the holding in dispute against the
petitioners. It is thus evident that the
petitioners and their predecessors were
always treated separate tenure-holders of
the land in dispute by the landlord.

17.Thus, in this view of the matter I
find that neither the disputed holding nor
any portion thereof could be held to be
ancestral holding coming down from the
time of common ancestor Devi Singh as it
has not come down in the identical form,
and, as such, the opposite parties could not
be declared to be co-tenure-holders by
picking uncertain plots from the holding in
dispute and treating them to be ancestral on
the ground that those initially belonged to
Devi Singh.

18.Learned counsel for the opposite
parties had contended that the opposite
parties 1 to 3 cannot be said to have fallen
in error in giving share in those plots of the
disputed holding which belonged to Devi
Singh. I am unable to agree with this
contention as well. Where the holding of
the common ancestor, as already observed
above, has not come down intact in
identical form the claimant cannot be
granted co-tenancy rights only in some of
the plots of the disputed holding merely on
the ground that those initially belonged to
the
common
ancestor. This
question
cropped up for consideration before Board
of Revenue inMohd. Yasinv.Mohd. Shaft,
1942 Rev Dec 401 (BR) wherein Sathe, J.
observed:-

"The mere fact that land comprised in
several holding belonged to a common
ancestor is not enough to hold that it
belongs to all the descendants of the
common ancestor. One essential thing
which is necessary for this is that the
identity of the holding must have continued
unbroken. If the land was divided between
two branches of the family by a family
arrangement and some holdings are entered
in the name of one branch or the other and
some jointly, if will be inequitable to pick
out some of the resultant holdings and say
that they belong to both the branches as
they belonged to one ancestor."

19.In (sic)Udal Singhv.Hardayal, 1973
Rev Dec 242 (BR) it has been observed:-

"It was more than clear that the
holding had not come in the identical form
from the ancestor. The holding may have
been acquired by the plaintiffs' ancestor in
1872 or thereabouts and it appears to have
continued in that form until 1924 or
thereabouts, but then it changed hands and
while part of the old plots were retained
some additions and alterations were made
and instead of occupancy a new hereditary
tenure was created in favour of the new
lessees. It is obviously, therefore, not
possible to hop back to the year 1900, and
then assume in spite of the lack of
continuity that since the ancestors were cotenure-holders in the year 1900, they
should be regarded as co-tenure-holders in
any new settlement made with some of the
members of the family."

20.Similar view was expressed by
Board of Revenue inRam Narainv.Buddhu,
1975 Rev Dec 195 (BR), wherein it was
held:

"Where the original holding of the
common ancestor has not come down in an
intact form the plaintiffs cannot claim cotenancy in respect of only one part of
common ancestor's holding".

21.I have carefully gone through these
decisions and in my opinion, the Board of
Revenue has taken a correct view on the
point that in order to uphold the claim of
co-tenancy rights on the ground that the
holding in dispute is ancestral property, it is
necessary that the holding should have
come down intact in the identical form
without any break and it would not be open
to pick up few plots of the holding which
754 INDIAN LAW REPORTS ALLAHABAD SERIES
initially belonged to common ancestor and
declare them to be ancestral property
giving a share to the claimant on that
ground. The claim of co-tenancy rights
cannot be upheld in respect of certain plots
of the holding but the claim is to be
considered and is to be accepted or rejected
in toto in respect of the holding and not in
respect of any portion thereof. In this view
of the matter I find that the opposite parties
1 to 3 committed error in granting cotenancy rights to the opposite parties 5 to 8
in 36 plots of the disputed holding merely
on the ground that these plot's initially
belonged to Devi Singh, and, are therefore,
ancestral property. This view is absolutely
erroneous and in view of what has been
said above, the said plots in question
cannot be held to be ancestral holding so as
to give co-tenancy rights to the opposite
parties 5 to 8 in those plots. In my opinion
no co-tenancy rights could be legally
granted in respect of a part of the holding
and, as such, the impugned orders passed
by opposite parties 1 to 3 granting opposite
parties 5 to 8 co-tenancy rights in respect of
the part of the holding (36 plots), cannot be
legally sustained.

22.Learned counsel for the opposite
parties Sri Hargun Charan, however, urged
that even if the claim of the opposite parties
5 to 8 cannot be sustained on the ground
that the disputed holding is ancestral, yet
their claim is sustainable on the ground that
the entire land of the disputed Khata No. 36
is joint family property and the name of
Mata Dihal Singh was recorded in the
representative capacity as he was head and
Karta of the joint family. His further
contention was that even if it be held that
the holding in dispute consisting of 84 plots
with an area of 44 bighas, 9 biswas, 14
biswansis was settled afresh by the landlord
with Mata Dihal Singh, the same would be
deemed to be joint family property as at the
time of acquisition he was head and Karta
of the family being elder brother. Learned
counsel pointed out that the opposite
parties 1 to 3 have recorded a finding to the
effect that at the time of second settlement
in the year 1301 F., both these brothers
Mata Dihal Singh and Ram Baran Singh
formed joint family and on the basis of this
finding learned counsel urged that even if
land of the disputed holding was acquired
by Mata Dihal Singh, but the same would
be treated to be joint family property and
the opposite parties 5 to 8 would get half
share in all the plots of the disputed
holding-Khata No. 36.1 am unable to agree
with this contention as well.

23.It is well settled that the creation of
tenancy in respect of agricultural land is a
matter of contract between the landlord and
the tenant. Even in the joint Hindu family a
member of the joint family could acquire
land for himself and unless it is proved that
the land was acquired by him in the
representative capacity and 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. Even a Karta of joint
Hindu family can acquire land in his name
for his own benefit and it cannot be treated
to be joint family property merely because
he happens to be Karta of the family at the
time of the alleged acquisition of the
property. It has to be positively proved that
when the land was acquired by the Karta of
the joint family he had acquired it in the
representative capacity for the entire body
of coparceners and it is treated as such by
the members of the family.

24.It appears to be fairly well settled
that when joint family is possessed of
sufficient nucleus and the Head or Karta of
the family had, as a matter of fact, in his
possession
joint
family
funds,
while
acquiring certain property in his own name,
1 All. Ram Asrey & Ors. Vs. D.D.C. & Ors.
755
the onus would lie on him to prove that it
was his self-acquired property and that it
was not acquired with the aid or assistance
of the joint family funds. But even this rule
cannot be always pressed in service in the
matter relating to acquisition of agricultural
tenancy
lands
because
no
premium
(Najrana) can be legally charged by the
landlord while letting the land to the tenant.
It therefore, cannot be assumed that in
every case while obtaining lease of
agricultural land the tenant must have paid
some premium (Najrana) to the landlord
and that too from the joint family funds.
InBhagirath
Devi
Kumar
Rani
Sahabav.Agricultural Income Tax Revision
Board, 1970 Rev Dec 365 : (1971 Tax LR
81), while considering this question, the
Division Bench of this Court held:-

"No doubt a presumption arises in
Hindu law that property standing in the
name of a member of Hindu undivided
family must be presumed to have been
acquired from Hindu undivided family
funds,
and,
therefore,
to
be
Hindu
undivided family property, where the
member of the family does not possess
sufficient funds of his own for the purposes
of acquiring the property. But in a case
where acquisition of the property does not
require any expenditure of funds, the
presumption cannot be raised.

In the instant case, no funds were
required because payment of Nazrana for
the acquisition of tenancy lands had been
declared illegal by law."

25.Thus in this view of the matter and
also in the absence of any positive
evidence, I find it difficult to assume that
Mata Dihal Singh while he acquired land of
the disputed holding had paid some
premium to the landlord and that too from
the joint family funds. In the present case it
was neither asserted nor proved that the
land in dispute was acquired by Mata Dihal
Singh with the aid or assistance of the joint
family funds, and, as such, simply because
the and in dispute was recorded in the name
of Mata Dihal Singh it cannot be assumed
to be joint family property because even in
a joint family any member or even a Karta
of the joint family can acquire land in his
name for his own benefit. It has to be
shown positively that it was neither
acquired in the representative capacity by
the Karta of the joint family or that it was
blended as joint family property and was
treated as such and that all the members of
the joint family were in possession over it.
But where no such case was set up nor
established, the claimants cannot get cotenancy rights merely because the disputed
holding is recorded in the name of the
Karta of the joint family or in the name of
any member of the joint family. The claim
of co-tenancy rights in such land by
unrecorded member of the joint family can
only be accepted if it is established that the
land in dispute was acquired in the
representative capacity and was blended as
joint family property and was treated as
such. The burden of proof that the land was
acquired by the recorded tenure-holder in
the representative capacity, lies heavily on
the person who asserts that it was acquired
as such.

26.In the present case it is very well
evident that both Mata Dihal Singh and his
brother Ram Baran Singh had separately
acquired land and their names are recorded
as separate tenure-holders on different
holding in second settlement of 1301F.