SIBGHAT ULLAH KHAN,J. - (1.) HEARD Sri M.A. Siddiqui, learned counsel for the petitioner and learned counsel for the contesting respondent no.4, Bahadur.
(2.) THIS writ petition arises out of Suit No.640/281 instituted by respondent no.4, Bahadur against petitioner under Sections 229 B and 176 of U.P.Z.A.&L.R. Act in respect of agricultural land comprised in Khata No.284 situate in village Kotia, Pargana Fakharpur, Tehsil Kaiserganj, District Bahraich. Plaintiff respondent no.4 claimed that his father, Tilak was real brother of Dhondhey father of petitioners and property in dispute was joint property as the fathers of the parties had inherited the same from their father Sukai. SDO/Extra Offier I, Bahraich decreed the suit and passed the preliminary decree declaring share of the plaintiff to be half on 28.9.1981. Against the said decree, defendants petitioners filed Appeal No.168. Additional Commissioner Faizabad Division, Faizabad dismissed the appeal on 24.12.1983. Thereafter Second Appeal No. 28(Z) of 1983 84 was filed by the petitioners which was also dismissed by Board of Revenue, Allahabad on 5.2.1991 hence this writ petition. The case of the plaintiff was that the name of Dhondhey was entered in the representative capacity. The courts below held that as it was admitted that both the parties belonged to the same family and there had never been any partition and Dhondhey was elder brother hence naturally Dhondhey was Karta of the family. Board of Revenue in para 8 after recording the aforesaid finding further held as follows: "It was hereditary tenancy before the Zamindari abolition, hence it must have been obtained from the Zamindar and so the acquisition must have been for the whole family and not for Dhondhey himself. A very heavy burden lay upon the defendants to prove their case which they could not discharge because Dhondhey had no income of his own. He must have acquired the land out of the fund of the joint family. Hence he and his brother Sukai i.e. father of the plaintiff became co tenant from the very inception of the tenancy and so even if the name of the father of the plaintiffs was not recorded in the papers it would not cause any adverse effect on his rights and those of the plaintiff."
(3.) SUIT was filed on 2.2.1981. Why the suit was not filed since Zamindari abolition till 1981 (for 29 years); nothing was stated in this regard. The finding of the courts below particularly of the Board of Revenue as quoted above are patently erroneous in law. First of all while granting Patta, Zamindar was not authorized to charge any premium. Secondly even if the family is joint, no presumption can be drawn that property acquired by one member of the family is joint property of the entire family even if he is Karta. In such situation no presumption can be drawn that it was acquired for the joint family unless such nucleolus is shown from which property could be acquired. The burden is upon the person who asserts that it was joint property to prove the said assertion and not on the person who acquired the property in his own name or his descendants. In this regard reference may be made to the Supreme Court Authority reported in AIR 2003 SC 3800 D.S.Lakshmaiah vs. L.Bala Subrahmanium. The Supreme Court held that the fact that the person in whose name property was purchased had not led evidence to establish his separate income to purchase property was inconsequential. In this regard reference may also be made to the leading authority of this Court reported in Jagdamba Singh vs. DDC 1984(2) LCD 398. In para 16 of the said authority it was held that if the revenue entry is very old then it is practically impossible to produce direct evidence on the question regarding settlement of the land by the landlord with the persons in whose name the entries stand and the entry itself affords the evidence regarding settlement with those persons. Para 22 of the said authority is quoted below: "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 co parceners and it is treated as such by the members of the family." ;