1. Heard Shri D.C. Jain, learned counsel for the petitioner and Shri Vasu Deo Mishra, learned counsel for the private-respondents no.4 and 5 as well as learned Additional Chief Standing Counsel for the State-respondents.
2. By means of the this writ petition, the petitioner has assailed the order dated 16.07.1982 passed by the Deputy Director of Consolidation, Sultanpur in Revisions No.199 and 341, whereby the revision preferred by the petitioner was dismissed while the other revision preferred by the Baij Nath was allowed.
3. The original-petitioner Garibey died during pendency of the petition and he is represented by his legal heirs. The private-respondent no.4 Baij Nath also died and is represented by his legal heirs. For the sake of convenience, this Court shall refer to the parties as they appeared in the original memo of the writ petition.
4. The dispute relates to the plots of basic year Khata No.94 recorded jointly in the names of the petitioner and the respondents no.4 and 5. The petitioner Garibey filed his objections under Section 9-A of the U.P. Consolidation and Holdings Act, 1953 wherein he had raised his objections in respect of Khata No.94, situate in Village Panjsara, Paragana and Tehsil Mohanlalganj, District Lucknow. It was the case of the petitioner that he had exclusive rights in respect of Plot No.308 and further he claimed 1/2 share in remaining land of basic year Khata No.94.
5. Disputing the aforesaid contention of the petitioner, the private-respondent no.4 and 5 also filed their objections under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953 wherein they claimed their exclusive rights in respect of the plots comprised in Khata No.94 except Plot No.308.
6. The Consolidation Officer framed two issues as to whether Garibey was the exclusive tenure holder of the Plot No.308 and the other as to the share of the parties in the remaining land of the disputed Khatas. The Consolidation Officer after considering the evidence led before him by means of the order dated 30.11.1981 held that the Plot No.308 was the exclusive property of Garibey whereas Plots of Khata No.94 and 59 were held to be of private- respondents no.4 and 5 and in plots of Khata No.85 the petitioner and the respondents no.4 and 5 were given half share each respectively.
7. Being aggrieved against the aforesaid order of the Consolidation Officer, Garibey preferred an appeal before the Settlement Officer of Consolidation (hereafter referred to as "SOC", in short), which was registered as Appeal No.169. The SOC partially allowed the appeal of Garibey by means of judgment dated 26.03.1982 and in respect of Khata No.94, it granted co-tenancy rights to Garibey. He also found that since the Plot No.308 was also recorded in Khata No.97, consequently, it rejected the contention of Garibey that he had exclusive rights therein and the SOC granted joint rights to the respondents No.4 and 5 along with Garibey in Plot No.308 and so far as claim of Garibey for 1/2 share in the plots of Khata No.94 is concerned, it was also rejected.
8. Garibey and Baij Nath i.e. respondents no.4 and 5 both being aggrieved by the order of the SOC dated 26.03.1982 preferred separate revisions. The revision of Baij Nath was registered as Revision No.199 while the revision of Garibey was registered as Revision No.341. Both the aforesaid revisions were consolidated and by means of the judgment dated 16.07.1982, the Deputy Director of Consolidation allowed the revision of Baij Nath and rejected the revision of Garibey, as a result, the order of SOC was set aside and the order of the Consolidation Officer dated 30.11.1981 was maintained.
9. Being aggrieved against the said order of Deputy Director of Consolidation dated 16.07.1982 the petitioner has preferred the instant writ petition.
10. Shri D.C. Jain, learned counsel for the petitioner while attacking the judgment of the Deputy Director of Consolidation has stated that there were statements on record which indicated that in the earlier round of consolidation the Plots of Khata No.94 were recorded along with the Plot No.308 of the petitioner and thus, he submitted that Garibey had co-tenancy rights in Plots of Khata No.94. It has further been submitted that the property was ancestral except Plot No.308 and the Deputy Director of Consolidation has failed to notice this aspect of the matter.
11. It has also been submitted that the statement of Ram Nath, the respondent no.5, clearly established as well as supported the case of the petitioner and the Deputy Director of Consolidation has fallen in error in failing to consider the documentary evidence filed by the petitioner.
12. It is further submitted that the Plot No.308 was not the ancestral property rather it was the exclusive property of Garibey which he had acquired by contesting the case from the erstwhile tenure holder. He further submits that the Plot No.308 was equivalent to the old Plot No.166 which was part of Khata No.5/5. It is in this view of the matter that it is urged that the Deputy Director of Consolidation erred in failing to provide the co-tenancy rights in respect of Plot of Khata No.94. He has further urged that the SOC had granted the co-tenancy rights to the petitioner in respect of Plot of Gata No.94, but the SOC erred in not treating the Plot No.308 as the exclusive property of Garibey and to that limited extent the revision was preferred.
13. Shri Jain, learned counsel for the petitioner has further submitted that the petitioner has filed various supplementary affidavits bringing on record the khatauni of 1332 Fasli, 1362 Fasli amongst other to indicate that the property in question belonged to late Osari, the common ancestor. It is urged that the property belonged to Shri Osari, who was survived by his two sons namely Rajnu and Pitambar. The private-respondents no.4 and 5 are the sons of Rajnu whereas the Garibey is the son of Pitambar and since the property was ancestral, consequently, Garibey was entitled to half share in the Plot of Khata No.94 and this aspect of the matter has not been dealt with nor considered. He submitted that once the property was held to be joint, it was necessary to grant co-tenancy rights and this aspect of the matter has been dealt by this Court in the case of Dukkhu vs. Deputy Director of Consolidation, Varanasi & Ors., (2019) 143 RD 514 upon which reliance has been placed.
14. On the strength of the aforesaid decision, Shri Jain, learned counsel for the petitioner submitted that since the property in question belonged to Shri Osari, hence, the property belonged to joint family and Garibey being the son of Pitambar was entitled to his half share and ignoring the aforesaid, the Deputy Director of Consolidation has committed an error.
15. Per contra, Shri Vasu Deo Mishra, learned counsel appearing for the private-respondents no.4 and 5 has submitted that in the earlier around of consolidation, Plots of Khata No.94 were recorded in the name of the respondents no.4 and 5. On account of inadvertence, the Plot No.308 was included in the said khata while there is no order passed by any authority to do so. He has further submitted that insofar as Khata No.59 is concerned, it comprise of eight plots which was also in the name of the private-respondents no.4 and 5 from which Chak No.97 was allotted to them. The aforesaid could be verified from Form No.41 which was brought on record and related to the earlier round of consolidation.
16. He has further submitted that the Plot of Khata No.85 which formed chak No.89 was allotted in the joint names of Baij Nath, Ram Nath and Garibey. Shri Mishra has further urged that insofar as Plot No.308 is concerned, the same is the property of Garibey and he very fairly submitted that the order passed by the SOC granting co-tenancy rights to the private-respondents no.4 and 5 in respect of Plot No.308 was not correct. Thus, the submission of Shri Mishra is that insofar as the Plot No.308 is concerned its an exclusive property of Garibey while the Plot of Khata No.94, they belonged exclusively to the private-respondents no.4 and 5 whereas the Plot of Khata No.85 is jointly held by the petitioner as well as the private-respondents no.4 and 5 together each having half shares (half with Garibey and half with Baij Nath and Ram Nath).
17. It is also urged by Shri Mishra that the plea of property being joint and ancestral was not initially raised by Shri Garibey either before the Consolidation Officer or the SOC or the Deputy Director of Consolidation. It is after many many years that the aforesaid plea is now being developed before this Court by filing supplementary affidavits. It is submitted that the documents which are sought to be placed on record through the supplementary affidavits were not part of the record before the consolidation Courts. Moreover, he has submitted that once the rights had been crystallized in earlier round of consolidation and they were not objected but now the petitioner is precluded to raise the aforesaid plea apart from the fact that in order to do so they must have adequate pleadings and proof to indicate that the property was joint.
18. He has further submitted that even if at all it is assumed that the family was joint it will not be give rise to any presumption that the said joint family had procured the property and the same is joint. In order to indicate that the property is jointly held by the Members of the Hindu Joint Family, it will be necessary for the petitioner to prove that not only the family was living jointly but there was a nucleus for the joint family with which the property has been acquired in a representative capacity only then the presumption would be of Hindu Joint Family and the plea of co-tenancy can be considered. He has further submitted that this plea was not raised before the authorities below nor any evidence is on record to establish the said plea before the courts, hence, the same is afterthought and for the said reason the reliance placed by the learned counsel for the petitioner on the case of Dukkhu (supra) is also not appropriate. For the aforesaid reasons, it is submitted that the order of the Deputy Director of Consolidation does not require any interference and the writ petition deserves to be dismissed.
19. The Court has considered the rival submissions and also perused the material on record.
20. In order to put the controversy in a perspective, it would be seen that it is the private-respondents no.4 and 5, who had filed their objections under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953. It was specifically stated that the plots of Khata No.94 was originally recorded in the names of the private-respondents no.4 and 5. It revealed that the plot No.308 was also included in the aforesaid khata whereas the plot No.308 was not original part of Khata No.94. It was also stated that Garibey is the exclusive owner of Plot No.308 and his name may be recorded exclusively.
21. While leading the evidence before the Consolidation Officer, it was stated that at the time of earlier round of consolidation, the private-respondents no.4 and 5 were minor. The petitioner taking advantage of the aforesaid fact though was allotted a separate khata which comprising of Plot No.308 but surreptitiously got the same added with the plots of khata No.94 and so also got his name added which was inappropriate and the same was liable to be corrected.
22. The Consolidation Officer while noticing the documentary evidence found that the plot No.308 was part of its old No.166 as indicated in CH-Form No.41. There was an entry in the name of Garibey relating to the plot comprising in Khata No.5. In the aforesaid Garibey had Sirdhari rights. However, the Consolidation Officer found that in respect of Chak No.97, there was an entry that Plot No.166 is being removed from Chak No.73 and is being included in Chak No.97. It is further indicated that Chak No.97 was originally recorded in the names of Ram Nath and Baij Nath, the respondents No.4 and 5.
23. Learned counsel for the petitioner could not point out the circumstance as to how the aforesaid entry was recorded when there was neither any proceedings initiated by Garibey or by the private-respondents no.4 and 5 to include the said plot No.308 in Chak No.97.
24. It is not disputed by the learned counsel for the parties that none of the parties had initiated any proceedings for correcting the same. Learned counsel for the petitioner relies upon the aforesaid entry and submits that an attempt was made to bring the appropriate copies of the said documents, but it was found that the record of the earlier round of consolidation had been weeded out.
25. Shri Mishra, learned counsel for the private-respondents no.4 and 5 disputes the aforesaid and submits that the private-respondents no.4 and 5 had filed a questionnaire to indicate that no record of the earlier round of consolidation was weeded out. Thus, taking note of the aforesaid the Consolidation Officer found that since in the said entry whereby the Plot No.308 is removed from the Chak No.73 and included in Chak No.97. There is neither the signatures of any authority nor there is any reference to any proceedings under which an order may have been passed authorizing such entry.
26. Considering the aforesaid, the Consolidation Officer found that when the names of parties were recorded separately and there is no order passed by any appropriate Court or authority to include the Plot No.308 in Khata No.97, hence, the said entry was disbelieved. The Consolidation Officer also noted that it is not disputed between the parties that Plot No.308 belonged to Garibey. It also recorded that once the Plot No.308 was separate in the name of Garibey and neither of the parties brought any proceedings to bring it within the Plot of Khata No.94, hence, it noticed the entires in CH-Form No.23, CH-Form No.23 and CH-Form No.41 and recorded findings that in respect of Plot No.308 Garibey had exclusive rights while Chak No.97 which is part of Khata No.94 belonged to Baij Nath and Ram Nath and in respect of Khata No.85 which includes the Chak No.69, names of both Baij Nath and Ram Nath having half shares and Garibey having half share recorded.
27. This Court finds that there is no error committed by the Consolidation Officer to have arrived at the aforesaid findings whereas in the aforesaid context if the decision of the SOC is noticed, it would be found that he has on the basis of surmises found that the entry recorded has been found appropriate even though there is no mention of any order passed by any competent authority authorizing the inclusion of Plot No.308 in Khata No.94. The SOC also did not consider the evidence and the statements of Ram Nath in the correct perspective and has culled out sentence in isolation as shall be evident from the copy of the statement of Shri Ram Nath, which has been brought on record as Annexure No.8.
28. From a perusal thereof, it will be relevant that he has clearly denied the existence of joint family property. He also denied that the parties were living jointly and thus, the presumption drawn by the SOC holding that the plots of both the parties since were joint, hence, he allotted co-tenancy rights to both the said parties i.e. the petitioner and the private-respondents no.4 and 5 in Plot No.308 as well as Plot of Khata No.94.
29. The reason given by the SOC is contrary to the documentary evidence as well as the factum of the pleadings raised by Garibey since he could not establish the jointness in the family and the joint purchase of the property in question. The revisional authority that is the Deputy Director of Consolidation while exercising its revisional power has dealt with the evidence on record as well as the reasons meted out by the Consolidation Officer and has set aside the order of the SOC by allowing the revision of Baij Nath and dismissing the revision of Garibey. In the aforesaid facts and circumstance, this Court finds that there is no error committed by the Deputy Director of Consolidation.
30. At this stage, it will be relevant to note the decision of this Court in the case of Jagdamba Singh & Ors. vs. Dy. Director of Consolidation & Ors., reported in 1984 (2) LCD Page 398 [LB] wherein the ingredients for a claim of co-tenancy and ancestral has been considered very lucidly and the relevant Paragraphs 14, 15, 22 and 23 will be apposite to this controversy.
"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 RD 567 (BR)Jodhia v. Bhikwa.
(2) 1942 RD 379 (BR)Hamid Ali v. Benares Bank.
(3) 1942 RD 401 (BR)Mohd. Yasin v. Mohd. Shafi.
(4) 1945 RD 122 (BR)Rajaram v. Narain Singh.
(5) 1969 RD 175 (BR)Abhai Narain v. Ram Manorath.
(6) 1973 RD 242 (BR)Aminuddin v. Kamuruddin.
(7) 1975 RD 195 (BR)Ram Narain v. Buddhu.
(8) 1963 RD 37 (BR)Mahadeo Singh v. Sunder Kewat.
(9) 1979 RD 125 (BR) Balwanti v. Bhaiya Ram.
(10) 1983 (1) Lucknow Civil Decision, 40 (HC) Jhagroo v. 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 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.
* * * * * * * * * * *
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."
31. Insofar as the decision of Dukkhu (supra) is concerned, from the perusal of the aforesaid decision, it will be relevant to state that in order to seek the benefit, it will be essential for the petitioner to establish the case that the property was acquired from the joint family funds. The law has now been fairly settled that if the parties are related being brothers or father and son, the presumption of living jointness, but it does not extent to the fact of the property being joint unless so proved.
32. This Court had the occasion to consider the issue of joint family and joint family property in the case of Dropadi Devi & others Vs. Shiv Chandra Dixit, 2020 SCC Online, All 104. The relevant paragraphs 54 and 55 of the said report is being reproduced as under:-
"54. There is a difference between a joint family and a joint family property merely because a joint family exists does not give rise to a presumption that the property also belongs to the joint family. In this regard, this Court draws strength from the decision of the Apex 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.
55. Similarly, 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."
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 one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired 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 self-acquisition, 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 self-acquisition 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 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)"
33. Thus, in light of the aforesaid discussion, this Court is of the opinion that the decision of Dukkhu (supra) does not come to the rescue to the petitioner as he is unable to establish the essential ingredients necessary to raise the plea of co-tenancy or treating the property to be ancestral and of the joint family property.
34. This Court further taking note of the plea raised by the petitioner to consider the documentary evidence filed by the petitioner along with supplementary affidavits as means to establish his plea of joint family property, this Court is not inclined to entertain the aforesaid supplementary affidavits inasmuch as the orders passed by the consolidation authorities is of the year 1981 and the petition has been filed before this Court in the year 1982 and the pleadings were exchanged much earlier but such supplementary affidavits are sought to be filed in the year 2019. The said documents were not placed before the court below and hence, this Court is not inclined to open the Pandora box by taking note of the aforesaid documents, moreso as discussed above, the essential ingredients have been missing for raising the aforesaid plea of co-tenancy and ancestral in the plots of Khata No.94.
35. For the aforesaid reasons, this Court is of the view that the order passed by the Deputy Director of Consolidation does not require any interference. Consequently, the petition being devoid of merits is dismissed. However, in the facts and circumstances, there shall be no order as to costs.
Order Date :- 13th August, 2021 Rakesh/-