ORDER K.N. Misra, J. - These two writ petitions are directed against the judgement and order dated 17-10-1979 passed by the Board of Revenue, opp. party No. 1 dismissing the revision filed by the petitioners and confirming the order dated 23rd March, 1978 passed by the Addl. Commissioner, Varanasi remanding the case to the trial court. 2. Briefly stated the facts of the case are that Jagdeo Pathak, opp. party No. 3 had filed two separate suits against his brother Sahdeo Pathak, opp. party No. 4. Under S. 229B one suit was in respect of plots Nos. 896 and 897 situate in village Jarkataha district Ballia which is the subject matter of dispute in with petition No. 334 of 1980; while the other suit was in respect of plots Nos. 1152 and 1153, situate in the aforesaid village which is the subject matter in dispute in the other writ petition No. 335 of 1980. The plaintiff-Jagdeo Pathak filed the aforesaid suits with the allegations that the land in dispute was fixed rate tenancy of one Mahesh Rai and others, who had transferred it through a sale deed dated 20-2-1943 and the petitioner became bhumidhar of the disputed land after the abolition of zamindari. It was further pleaded that the name of the defendant-Sahdeo was wrongly recorded as sole tenure-holder in the Khatauni of 1372 fasli the basis of the alleged order dated 17-4- 1963, said to have been passed in Case No. 747 asserting that he himself is the sole tenant and is in exclusive possession of the land in dispute and sought for a declaration to that effect. It was further contended by the plaintiff that Sahdeo holds no right, title or interest over the land in dispute and his name was wrongly recorded and the entry, in his name was per se wrong and illegal. Sahdeo-defendant did not contest the suit and filed a compromise admitting the claim of the plaintiff. The petitioners, on coming to know about the finding of the said collusive suit, applied for their impleadment alleging that the defendant Sahdeo Pathak had executed a sale deed in their favour on 6-5-67 and he had now colluded with the plaintiff and has filed a collusive compromise in favour of the plaintiff; hence they be impleaded in the suit. The petitioners, on coming to know about the finding of the said collusive suit, applied for their impleadment alleging that the defendant Sahdeo Pathak had executed a sale deed in their favour on 6-5-67 and he had now colluded with the plaintiff and has filed a collusive compromise in favour of the plaintiff; hence they be impleaded in the suit. The petitioners were ordered to be impleaded in the suit and a written statement was filed by the petitioner pleading that Jagdeo Pathak and Sahdeo Pathak are the real brothers forming joint Hindu family and the plaintiff Jagdeo Pathak was the head and Karta of the joint family that the land in dispute was acquired by joint family funds and both the brothers had acquired share in it. It was further pleaded that in a family settlement and mutual partition of the property among the brothers the land in dispute fell in the share of Sahdeo Pathak, whose name was recorded as the sole bhumidhar, vide order dated 7-5-1963 which was passed in the case No. 747 on the basis of the compromise dated 6-4-1963 filed in the said mutation case wherein the plaintiff Jadgeo had admitted that in the family settlement and mutual partition of the property, the land in question had fallen in the share of defendant Sahdeo and he is in exclusive possession as the sole owner thereof hence it is recorded in his name. The said order dated 7-5-1963 was also incorporated in the Khatauni 1370 Fasli and the defendant Sahdeo was in exclusive possession as sole bhumidhar of the same. It was further asserted that the plaintiff Jagdeo was very well aware about the said entries he had obtained the extract of Khatauni 1370-F as back as on 31-10-1964 which has been filed by the plaintiff himself in the present suit. The petitioners further pleaded that they are the sole bhumidhars of the land in suit having purchased it from the defendants Sahdeo through a registered sale deed dated 6-5-1967 and neither the plaintiff-Jagdeo nor the defendant-Sahdeo held any right, title or interest in the land in suit hence it deserves to be dismissed. 3. The trial court framed as many as eleven issues which are referred in the copy of the judgment of the trial court (annexure `2' to the writ petition). 3. The trial court framed as many as eleven issues which are referred in the copy of the judgment of the trial court (annexure `2' to the writ petition). Both, the plaintiff and the defendants, led their oral and documentary evidence in support of their case and the trial court, vide order dated 14-7-1977 dismissed the suit holding that the name of the plaintiff was recorded in the representative capacity being karta of the family and in the private partition the land in suit had fallen to the share of Sahdeo whose name was also recorded on the basis of compromise in the mutation case and the petitioner are bhumidhars of the land in suit having purchased it from Sahdeo Pathak. 4. Aggrieved by the said order, Jagdeo filed on appeal which was allowed by the Additional Commissioner, opposite party No. 2 vide its order dated 23-3-1978 and the case was remanded to the trial court with a direction to frame an additional issue on the question whether the land in dispute was purchased by the plaintiff Jagdeo through joint family funds or not it was-also observed that the trial court failed to consider the oral evidence on record while recording its finding. It was also held that the trial court failed to record a specific finding whether the land in suit came to the share of Sahdeo by the alleged family settlement and mutal partition' and that no finding has been recorded on issues Nos. 1 and 3. The lower appellate court further observed that no such private partition could be made after the enforcement of U.P.Z.A. & L.R. Act and as such the partition could not be valid if it was not made in accordance with the provisions of the Act. It was further observed that the trial court should also have considered whether the compromise filed in a correction of paper case would be binding on the parties or not and placing reliance upon the decision of the Board of Revenue in 1966 Rev. Dec. 10 he held that such compromise would not be binding with these observations and findings, he remanded the case to the trial court for decision afresh in the light of the observations made in the Judgment. 5. Aggrieved by the said order the petitioners filed revisions which were heard and dismissed by the Board of Revenue, vide its order dated 17-10-1979. 5. Aggrieved by the said order the petitioners filed revisions which were heard and dismissed by the Board of Revenue, vide its order dated 17-10-1979. The petitioners have challenged the aforesaid orders passed by opp. parties Nos. 1 and 2 in this writ petition. It appears that Sahdeo had died during the pendency of the case and his sons Shambhu Nath Pathak and Bishambhar Pathak were substituted and they are arrayed as the opp. parties Nos. 4 and 5 in the writ petition. 6. The learned counsel for the opp. party No. 2 raised a preliminary objection about the maintainability of the writ petition against the order of remand passed by the opp. party No. 2 which has been maintained by opp. party No. 1. Reliance was placed on Uma Shanker v. Dy. Director of Consolidation, Etah (1969 All W R (H C) 182), wherein the learned single Judge held that "it was not desirable to entertain the petition against the order of remand as the grounds which have been raised by the learned counsel here would be available to him before the consolidation authorities after the remand." This case is distinguishable. In the present case the lower appellate court, while remanding the case, has observed that the trial court has omitted to consider that under the provisions of U.P.Z.A. & L.R. Act partition cannot be treated to be valid if it has not been made in accordance with the provisions of the Act itself. He has also recorded a finding that the trial court should also have looked to the fact whether the compromise, filed in a correction of papers case, could be binding or not and placing reliance upon the case of Hira Lal v. Aharwa, (1966 Rev. Dec. 10) (B R) he observed that no such compromise will be binding. Since the opp. party has recorded these findings against the petitioner they will be prejudiced if they would not be permitted to challenge the aforesaid findings in this writ petition although the impugned order passed by the Addl. Commissioner is an order of remand. The petitioner cannot possibly urge anything before the trial court against the aforesaid observations and findings of the opp. party No. 2 on the said points recorded in the impugned remand order. The Board of Revenue has also, while rejecting the revision of the petitioner endorsed those findings. Commissioner is an order of remand. The petitioner cannot possibly urge anything before the trial court against the aforesaid observations and findings of the opp. party No. 2 on the said points recorded in the impugned remand order. The Board of Revenue has also, while rejecting the revision of the petitioner endorsed those findings. In this view of the matter, I am of the opinion, that the aforesaid case relied upon by the learned counsel for the opp. parties is not applicable to the facts of the present case and the writ petition cannot be thrown out on the said preliminary objection which is not sustainable. 7. The learned counsel for the petitioner has argued that there was no necessity for framing any additional issues on the question "whether the land in suit, which was purchased in the name of the plaintiff-Jagdeo through the sale deed D/- 6-5-1967, was acquired.by joint family funds or not" because the said issue would be covered by Issue No. 1 which is to the effect that "whether the plaintiff is the sole bhumidhar of the land in suit or not". He further contended that both the parties had very well understood the case set up by them and they have also led evidence in support of their case which was pleaded, in their plaint and written statement. In these circumstances no specific issue was needed on the point. I am unable to agree with this contention. The main question for consideration, in the present case, would be whether Jagdeo Pathak had purchased the land in suit from his own funds or from the joint family funds. But no issue has been framed on this material question. It is well settled that a member of joint family or even a Karta of joint family can acquire the property for himself and in his own name from his own funds. But if it is acquired with the aid and assistance of the joint family funds, then all the members of the joint family would have a share in it though it may be recorded in the name of an individual of the joint family and he would not be the sole owner thereof. In the present case, therefore, it was necessary that a specific issue should have been framed on the point. In the present case, therefore, it was necessary that a specific issue should have been framed on the point. The petitioners, in their written statement had pleaded that the land was purchased in the name of Jagdeo from the joint family funds and it was recorded in his name as he was the Karta of the joint family. No doubt, it may be that while recording a finding on Issue No. 1 such question may be considered if the parties have led evidence in support of or against their respective contentions on the aforesaid points. The petitioners have not brought on record the evidence which has been led by the parties on the aforesaid points and, as such, it cannot be said that the parties have led evidence on such material point. In the absence of any specific issue on the said point, a finding cannot be recorded against a party on the ground that he has omitted to lead evidence about it and no adverse inference can, thus, be drawn against him for not leading evidence on the said poin. The aforesaid question is a crucial question of fact and hence a specific issue, on that point, should have been framed for just and proper decision of the case. There should be a distinct issue for each proposition of law and fact and an issue should be framed on the point necessary for proper trial and disposal. In the present case the said question was eery material. A perusal of the order passed by the trial court also indicate that no specific finding on the aforesaid question has been recorded nor he has referred to any evidence on the point that the land in question was acquired by the joint family funds. Since the petitioner have not brought on record, of this petition, the evidence which has been led by the parties on the aforesaid point nor any evidence has been referred in the judgment of the trial court and, as such, I am inclined to accept the contention of the learned counsel for the plaintiff-opp. party that, since no specific issue on the said point was raised, the plaintiff could not lead evidence on the said point. The learned counsel for the petitioner also could not refer to any evidence which might have been led by the petitioners in respect of the said fact. party that, since no specific issue on the said point was raised, the plaintiff could not lead evidence on the said point. The learned counsel for the petitioner also could not refer to any evidence which might have been led by the petitioners in respect of the said fact. In this view of the matter, remand was necessary for deciding the case afresh after framing an issue on the aforesaid material fact so that the parties may not be prejudiced. It is not a case where the parties had led their evidence on the material point in spite of omission of an issue on the particular point. The decision cited by the learned counsel for the petitioner, in support of his contention. that the omission to frame an Issue is not fatal, specifically when in spite of omission of framing an Issue. the points involved in the suit have been correctly understood by all the parties, are distinguishable. In the percent case. as already stated above, the trial court has not yet recorded specific finding on the said material point nor he has referred to any evidence on that point. The petitioner has also not referred to, in the writ petition the evidence led by the parties on the said point. In this view of the matter, I am of the opinion, that the order passed by the opp. party No. 2 directing the specific issue to be framed on the said question, does not suffer from any infirmity. 8. The learned counsel for the petitioners next contended that no order of remand could be passed on the ground that the trial court has not considered the oral evidence while deciding the case. If that was not done the appellate court, instead of remanding the case, could very well consider the evidence on merits and record findings on the material questions of fact and law involved in the suit. If that was not done the appellate court, instead of remanding the case, could very well consider the evidence on merits and record findings on the material questions of fact and law involved in the suit. In support of this contention the learned counsel referred to decision of the Supreme Court in Indian Army & Public Equipment Factory v. Kanodia Brother, (1968 S C, Notes)489 ) and Sunder Singh v. Narain Singh, (1969 SC (Notes) 292) :(AIR 1969 NSC 12 wherein it has been held that "no doubt, it is correct that the trial court should have recorded finding after considering the entire evidence on record but if that has not been done the appellate court, instead of remanding the case. should have considered and recorded a finding on all the material questions of fact and law itself". In the present case, however, the case has been remanded for framing of an issue on the said material question of fact and as such, unless the parties get an opportunity to lead their evidence on the said question, no decision can be given on the evidence available on record. The trial court has not taken into consideration the oral evidence while deciding the case and this fact has been pointed out in the remand order so that after framing an issue and taking the evidence of the parties the trial court should decide the case after the appraisal of the entire evidence on record. The impugned remand order is not based merely on the ground that the trial court has considered the evidence on record. If that alone would have been the ground, the remand order could not be upheld. 9. The learned counsel for the petitioner further contended that the opp. parties Nos. 1 and 2 have erred in holding that the land could not be mutually partitioned by way of family settlement and unless the partition takes place in accordance with the provisions of the U.P.Z.A. & L.R. Act, the private partition, so effected, cannot be recognised as valid. The learned counsel has further contended that the opposite parites Nos. I and 2 have erred in holding that the admissions made in the corrections of papers case cannot be relied upon and these findings. apart from being erroneous, should not have been recorded by the opposite parties Nos. The learned counsel has further contended that the opposite parites Nos. I and 2 have erred in holding that the admissions made in the corrections of papers case cannot be relied upon and these findings. apart from being erroneous, should not have been recorded by the opposite parties Nos. 1 and 2 when the the case was remanded to the trial court for decision afresh. 10. The learned counsel for the opposite party No. 3 in reply, supported the said observations, contained in the remand order, and urged that without filing a suit for partition, under S. 176 of the U.P.Z.A. & L.R. Act a joint holding could not be mutually divided by the co-tenure-holders and they will not become the sole tenant in respect of the land which falls in their respective shares in mutual partition and family settlement. I do not agree with the argument of the learned counsel for the opposite parties. 11. It is well settled that a property can be mutually divided by way of family settlement bona fide arrived at between the parties so as to resolve the family dispute and rival claims by a fair and equitable division or allotment of properties between the various members of the family provided but such settlement must be voluntary and should not be induced by fraud, coercion or undue influence. The family settlement might have been oral in which case no registration is necessary. (See Kale v. D.D.C., 1976 Rev. Dec. 355 . In Abdul Haq v. Mohd. Hashim, AIR 1946 All 200 , a Division Bench of this Court held that: The cosharers in a mahal have a right to effect a partition by private arrangement. Partition among the cosharers once effected either through court or by private treaty puts an end to the joint ownership of the parties. Thence forward the parcels of land allotted to different cosharers are absolutely distinct in the eye of law and one has nothing whatsoever to do with the otters." 12. This case was referred and relied upon by R. M. Sahai, J. in Dara Singh v. Board of Revenue, Civil Misc. Writ No. 7815 of 1973, decided on 20-3-1979, and the trial court's order, dismissing the suit for partition under section 176 of the U.P.Z. A. & L.R. Act on the ground that the partition was already made in accordance with the mutual partition, was upheld. Writ No. 7815 of 1973, decided on 20-3-1979, and the trial court's order, dismissing the suit for partition under section 176 of the U.P.Z. A. & L.R. Act on the ground that the partition was already made in accordance with the mutual partition, was upheld. Placing reliance on Abdul Majid's case (supra) (1) it was held that there a property has been partitioned privately then a suit for partition ab mt it is not maintainable". This view has been taken by a Division Bench of this Court in Sri. Ram v S.O.C , Special Appeal No. 675 of 1066 decided on 26-2-1973. I respectfully concur with the principles laid down in these decisions. 13. There appears to he no specific bar under the provisions of the U. P. Zamindari Abolition & Land Reforms Act to the mutual partition of a joint holding by a tenure holder by way of family settlement, which if bona fide arrived at, would operate as estoppel between the parties. On the basis of the mutual partition of a joint holding made in a family settlement the parties are entitled to get their names mutated in the revenue records, as is provided in the Explanation appended to S. 34 of U. P. Land Revenue Act which reads as follows: The word "transfer" includes a family settlement by which the holding or part of the holding recorded in the record of rights in the name of one or more members of that family is declared to belong to another or other members (or in exchange of holding under Section 162 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950)" The aforesaid Explanation clearly indicates that if a holding or part thereof which is recorded in the name of one or more members of the family, is declared to belong to another member in a family settlement arrived at between the parties it would, for the purpose of mutation in the revenue records, be deemed to he a transfer. It is well settled that a family settlement need not he in writing and may be arrived at orally between the parties and on the basis of such family settlement mutation application for recording their names as exclusive tenants of the same would be maintainable in view of the aforesaid explanation appended to S. 34. It is well settled that a family settlement need not he in writing and may be arrived at orally between the parties and on the basis of such family settlement mutation application for recording their names as exclusive tenants of the same would be maintainable in view of the aforesaid explanation appended to S. 34. Any compromise or consent application filed in the mutation case admitting-exclusive tenancy rights on the basis of family settlement and possession of the applicant in pursuance thereof would be binding on the party concerned and he would be estopped in resiling from it unless some fraud, misrepresentation, coercion or undue influence in filing of compromise or consent application is alleged and established. 14. It is thus evident that a joint holding, which stands recorded exclusively in the name of one of the members of the family can he mutually partitioned by way of family settlement declaring it to belong to another or other members of the family. In the absence of any provisions, contained in U.P.Z.A. & L.R. Act prohibiting mutual partition by way of family settlement of a holding and in view of the aforesaid explanation appended to S. 14 (or S. 34) recognising such family settlement for the purposes of mutation in the revenue records, I am of the opinion, that if a joint property has been partitioned mutually in family settlement the parties thereto acquire exclusive rights in the portion falling in their shares and once a joint property has been partitioned in family settlement and is acted upon the parties to such family settlement would be estopped in resiling from it. It can be avoided only on establishing that such family settlement or mutual partition was obtained by practising fraud mis-representation, coercion or undue influence. It would be treated to be void if it is violative of some mandatory provisions of law. 15. The parties to the family settlement would be bound by it and cannot resile from it. Hon'ble Supreme Court in the aforesaid Kale v. Dy. Director of Consolidation (AIR 1976 S C 807 at pp. 817.825) (supra) case has laid down that: "A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Director of Consolidation (AIR 1976 S C 807 at pp. 817.825) (supra) case has laid down that: "A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Even if the family arrangement was not registered it could be used for a collateral purpose namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose, of applying the rule of estoppel which followed from the conduct of the parties who have taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement." In the present case, Sahdeo Pathak is said to have received the land in suit in his share exclusively and if the said family settlement was bona fide, voluntary and was not induced by fraud, coercion or undue influence, the plaintiff would be bound by it. But whether any such family settlement was, in fact arrived at or not and whether a compromise was arrived or not in the aforesaid correction of papers case admitting exclusive title of Sahdeo Pathak on the basis of mutual partition in family settlement are questions of fact which have got to be determined by the trial court and so I do not express any opinion about it. 16. In view of what has been said above, I am of the opinion that a joint holding can be mutually partitioned by way of family settlement provided such mutual partition and family settlement is genuine and has not been made to circumvent the provisions of any other enactment for the time being in force if the family settlement would be bona fide and genuinely made in recognition of pre-existing rights in the land in question it would be valid, effective and binding between the parties. It would however, he liable to be ignored by the landholder (State Govt.) in case it is found to have been arrived with mala fide intentions in order to circumvent some provisions of law, namely the U. P. Imposition of Ceiling on Land Holdings Act or such other enactment. Under the provisions of said Act even certain declaration and partition decrees of court are liable to be ignored. Under the provisions of said Act even certain declaration and partition decrees of court are liable to be ignored. 17. The opp. parties Nos. 1 & 2 have held that the compromise, filed in a mutation case. would not be recognised and reliance has been placed on an earlier decision of the Board of Revenue in the case of Hira Lal v. Aharwa (1966 Rev. Dec. 10) (B R) wherein it, has been held that: "Long standing entries should not be changed under S. 33 of the U.P. Land Revenue Act even if they are agreed to by both the parties. The proper remedy in such cases is by way of declaration of title-as prescribed in law. S. 229-B of the Z.A. & L.R. Act specifically provides for such declaration." I am unable to agree with this. As already observed above, a holding even if recorded in the name of one member of the family can, by virtue of a mutual partition in fancily settlement, be declared to belong to another or other member of the family and the name of such person, in whose share the land falls in family settlement, would be liable to be recorded in the revenue records. This can be done irrespective of the fact that the entry in the name of the individual member of the family is of very long standing. No suit for declaration would be necessary for recording the name in the revenue records on the basis of family settlement which can be done in view of the provisions contained in Explanation to S. 34 of the Land Revenue Act. In the present case, the defendants asserted that Sahdeo Pathak had received the land in suit by mutual partition in family settlement and his name was recorded in the revenue records as sole tenant after expunging the name of the plaintiff-Jagdeo to which he had given his consent and orders were passed accordingly. The opp. parties Nos. 1 and 2 have held that no entry in favour of Sahdeo Pathak could be made even if recorded tenure holder had given consent. I am unable to agree with this finding. The opp. parties Nos. 1 and 2 have held that no entry in favour of Sahdeo Pathak could be made even if recorded tenure holder had given consent. I am unable to agree with this finding. The trial court will, however, consider on merits whether the plaintiff Jagdeo had filed any such compromise giving consent for recording the name of Sahdeo as the sole tenant of the land in question or not on the basis of alleged family settlement and mutual partition. On these questions of fact, the trial court will record the findings after considering the evidence which may be led by the parties and I do not express my opinion about it. 18. No other point is pressed before me. 19. In the result, both the writ petitions succeed and are partly allowed to the extent that the observations made and the findings recorded by opp. parties Nos. 1 and 2 in the impugned orders, to the effect that there could he no mutual partition of the holding and the records cannot be corrected on its basis is quashed. The order regarding remand of the case to the trial court for decision afresh suffers from no error and is accordingly maintained. The trial court will now decide the case in accordance with law and observations made above, after framing necessary issue and taking the evidence of the parties which they may like to produce in support of their case. In the circumstances of the case, the parties shall bear their own costs.