JUDGMENT K.N. Misra, J. 1. Both these writ petitions are directed against a common judgment and order dated 27th March, 1980 and, therefore, these are taken together with the consent of the learned counsel for the parties. 2. Writ Petition No. 1687 of 1980 relates to land of Khata No. 57, which is Bhumidhari Khata recorded in the name of the petitioner in the basic year Khatauni, whereas writ petition No. 927 of 1980 relates to land of Khata No. 246, which is Sirdari holding and is recorded in the basic year Khatauni in petitioner's name. In respect of both these holdings an objection was filed by Subedar, the opposite-party No. 2 in Writ Petition No. 927 of 1980. Subedar has filed writ petition No. 1687 of 1980 in respect of Khata No. 246. Subedar had claimed co-tenancy rights in both the holdings alleging the land in dispute as ancestral holding coming down from the common ancestor Paltan son of Parauti. He claimed one-half share in the holdings in dispute asserting that after death of Paltan, name of Ram Prasad was recorded in the representative capacity over the land in dispute as Karta of the family and subsequently after death of Ram Prasad the names of the petitioners came to be recorded in the representative capacity. Subedar claimed one-half share in the land in dispute and claimed to be in possession over the land in dispute. The case was contested by the petitioners, who asserted that the land in dispute was acquired by their predecessor, namely-Ram Prasad son of Paltan. It was further stated that the land in dispute did not belong to the common ancestor namely, Paltan, nor it is coming down from his time in the family. It was also asserted that Subedar had no concern with the land in dispute nor he has been in possession over the same. It was also denied that Subedar is member of their family. 3. Consolidation Officer, after taking evidence of the parties, held that the land in dispute was acquired by Ram Prasad son of Paltan and it had not come in the identical form. It has also been held that the petitioners are the sole tenure-holders and in exclusive possession over the land in dispute and Subedar has no right, title or interest in the land in dispute. 4. Aggrieved by this order Subedar filed appeal. It has also been held that the petitioners are the sole tenure-holders and in exclusive possession over the land in dispute and Subedar has no right, title or interest in the land in dispute. 4. Aggrieved by this order Subedar filed appeal. This appeal was confined only in respect of Khata No. 57. Appeal was not pressed in respect of Khata No. 246, which is Sirdari holding. Settlement Officer (Consolidation) vide order dated 3-10-78 dismissed the appeal filed by Subedar holding that the land in dispute was acquired by Ram Prasad. He considered in detail the evidence on record and came to the conclusion that Subedar had no share in the land in dispute; nor he had ever been in possession of the same. The land rent receipts filed by Subedar were not accepted to be receipts in respect of land in dispute. It has been observed that the land rent receipts are of the year 1969 and, therefore, these cannot be taken to be rent receipts in respect of the holding in dispute because after abolition of zamindari rent could not be paid to the Zamindar in respect of the land in dispute. The findings recorded by the Consolidation Officer were affirmed by the Settlement Officer (Consolidation). He has further recorded a finding to the effect that Paltan had died sometimes in the year 1335 Fasli, i.e., 1928, whereas the entry in the name of Ram Prasad son of Paltan is coming down from the year 1328 Fasli. He has further found that there was a difference of ten biswansis in the area and, therefore, there is a difference in rent, which was initially recorded of the land holding in the name of Paltan in the year 1314 Fasli. The Settlement Officer (Consolidation) on these findings dismissed the appeal. Aggrieved by that order Subedar went up in revision and this revision was also confirmed in respect of Khata No. 57, as is mentioned in the impugned order itself. The revision was heard and allowed by opposite-party No. 1 vide judgment and order dated 27th March, 1980. Petitioners (Writ Petition No. 927 of 1980) have filed this writ petition challenging the order passed by the Deputy Director (Consolidation). 5. The revision was heard and allowed by opposite-party No. 1 vide judgment and order dated 27th March, 1980. Petitioners (Writ Petition No. 927 of 1980) have filed this writ petition challenging the order passed by the Deputy Director (Consolidation). 5. The learned counsel for the petitioners Sri S.D. Misra placed the judgment of Deputy Director (Consolidation) and argued that the Deputy Director (Consolidation) acted illegally and committed material irregularities in exercise of jurisdiction in setting aside the concurrent findings recorded by the two courts below without even considering the findings on merits. He urged that the judgment of Deputy Director (Consolidation), being not the judgment of affirmance, cannot be sustained as he has failed to consider the evidence on record, which was led by the parties and also no reason has been assigned as to why he differs from the findings recorded by the two courts below. In reply, the learned counsel for the opposite-party argued that the Deputy Director (Consolidation) has, after taking into consideration the evidence on record, both oral and documentary led by the parties, came to the conclusion that the land in dispute is ancestral and as such opposite-party No. 2 has got one-half share in it. He urged that the finding recorded by the Deputy Director (Consolidation) is neither perverse nor it is against evidence on record and as such no interference can be made by this court in exercise of powers under Article 226 of the Constitution of India. 6. I have perused the orders passed by the Deputy Director (Consolidation) as well as by the Settlement Officer (Consolidation) and the Consolidation Officer. The two courts below have recorded a finding that the land in dispute was acquired by Ram Prasad son of Paltan and it has not come down in the identical form from the time of Paltan, the common ancestor of the parties. They have also referred to the oral and documentary evidence in coming to that conclusion. It was further held that Paltan died sometimes in 1235F and as such the entry in the name of Ram Prasad in 1328F cannot be in the representative capacity as an heir and successor of Paltan. This finding has not been upset by the Deputy Director (Consolidation), although he has recorded a cryptic finding that the land in dispute was coming down from the common ancestor. This finding has not been upset by the Deputy Director (Consolidation), although he has recorded a cryptic finding that the land in dispute was coming down from the common ancestor. I have perused the judgment and order passed by the Deputy Director (Consolidation) and find substance in the argument of the learned counsel for the petitioner that the order, being not an order of affirmance, deserves to be quashed on the ground that while recording a contrary finding the Deputy Director (Consolidation) has not taken care to consider evidence on record as well as the findings recorded by the two courts below. When the Deputy Director (Consolidation) arrived at a different finding while dealing with the revision, he should have expressed in his order the reasons on which he wants to differ with the findings recorded by the two courts below. He has also ommitted to consider the material finding recorded by the two courts below to the effect that Paltan died sometime in 1338F, whereas the entry in name of Ram Prasad came to be recorded in the year 1328F, when Paltan was alive. This entry could not be taken to be an entry recording the name of Ram Prasad as heir and successor of Paltan. If the land came to be recorded in the name of Ram Prasad during the life time of Paltan, it was to be assumed that it was a fresh settlement with Ram Prasad. Learned counsel for the opposite party urged that the evidence regarding settlement has not been led by the petitioners and, therefore, merely on the ground that Paltan died sometime in 1335 Fasli it cannot be assumed that it was a fresh settlement with- Ram Prasad. I am unable to agree with this contention. 7. If the land came to be recorded in name of Ram Prasad prior to death of Paltan, then he could very well be taken to have ceased to be the tenure-holder of the land in dispute on his son being admitted as a tenant. It is well settled that no tenant can be superimposed on a sitting tenant. If Paltan was alive, then the name of Ram Prasad could not be recorded in the records unless Paltan ceased to be tenure-holder. It is well settled that no tenant can be superimposed on a sitting tenant. If Paltan was alive, then the name of Ram Prasad could not be recorded in the records unless Paltan ceased to be tenure-holder. Entry of the name of Ram Prasad during the life time of Paltan indicates that Paltan had ceased to be the tenure-holder of the land in dispute. It, therefore, cannot be said that Ram Prasad, whose name was recorded during the life time of Paltan held the land in dispute in the representative capacity in the life time of his father nor it can be said that the land in dispute continued to be ancestral land coming down from the time of Paltan. 8. Learned counsel for the opposite party urged that no such case was set up by the petitioners that the land in dispute was acquired by Ram Prasad during the life time of Paltan and as such the opposite party had no occasion to lead evidence that Paltan had already died prior to the entry in the name of Ram Prasad in 1334 Fasli. It is to be noticed that the name of Subedar was not recorded on the land in dispute. He had claimed a share in the holding in dispute being co-tenure-holder on the ground that the land in dispute is an ancestral property. The burden, therefore, lay on him to establish that the land in dispute belongs to Paltan and after his death it devolved on his son Ram Prasad and that the name of Ram Prasad was recorded in the representative capacity. Paltan died sometime in 1335 Fasli was not a matter of pleading, it was a matter of evidence and, therefore, if on evidence on record it was proved that Ram Prasad died in 1335 Fasli, 1 find no error has been committed in recording that finding by subordinate consolidation authorities. Paltan died sometimes in 1335 Fasli and thus the conclusion arrived at by them that the land in dispute was settled afresh with Ram Prasad during the life time of Paltan cannot be said to be an erroneous finding. Learned counsel for the opposite party laid much stress on the rent receipt. He pointed out that certain money order receipts were filed by Subedar. Learned counsel for the opposite party laid much stress on the rent receipt. He pointed out that certain money order receipts were filed by Subedar. As already observed that those receipts were of 1969, but a payment to landlord in the year 1969 in respect of land in dispute does not arise. The said receipts, therefore, cannot be taken to be rent receipts in respect of land in dispute. 9. Learned counsel for the opposite party in the end urged that there would be presumption regarding jointness of the Hindu family. He further urged that no evidence was led by the other side to indicate that there was severance in the family and as such even if the land would be deemed to have been settled afresh, it should be deemed to be joint property of all the members of the family. In support of his argument reliance was placed on a decision reported in Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC p. 405 wherein it has been laid down that even if mutation has been made in the name of a person of the family, it cannot be presumed that there was severance in the family. It was further held that the onus to prove it to be his exclusive property lies on the person, who asserts that the property was acquired after severance of the joint family. There is no dispute regarding the proposition of law laid down in the said decision. But in the present case the facts are altogether different. 10. As observed above it has been established from the evidence on record that the land in dispute was settled with Ram Prasad in the life time of Paltan and as such it cannot be said an acquisition by Ram Prasad in representative capacity. It is well settled that even a member of a joint family can acquire land in "his own name. The land in dispute could certainly be taken to be a joint Hindu family property, if it was acquired by the joint family funds by the Karta of the family or any other member of the family. In the present case there is no such evidence; nor any such case was pleaded. In the present case Subedar admitted that partition took place some twenty-two years ago. In the present case there is no such evidence; nor any such case was pleaded. In the present case Subedar admitted that partition took place some twenty-two years ago. But even during this period he could not produce any receipt regarding payment of rent in respect of the land in dispute; nor his name was ever recorded in possession over any portion of the land in dispute. In this view of the matter I do not find any error was committed by the Consolidation Officer as well the Settlement Officer (Consolidation) in recording a finding that Subedar is not co-tenure-holder in the land in dispute along with the petitioners and that the petitioners are the sole tenure-holders and are in exclusive possession. Thus, I find that the impugned order dated 27th March, 1980, cannot be sustained and deserves to be quashed. In the result, Writ Petition No. 927 of 1980 succeeds and it is accordingly allowed and the impugned order dated 27th March, 1980, passed by the Deputy Director (Consolidation) is set aside and the land in dispute of Khata No. 57 shall continue to be recorded alone in the names of the petitioners. 11. So far as the Writ Petition No. 1687 of 1980-Subedar v. Deputy Direct or (Consolidation) and others is concerned I find that no case was pressed by the petitioner (Subedar) in respect of Khata No. 246, which was a Sirdari holding, before the Settlement Officer (Consolidation); nor he had pressed his claim with regard to said holding before the Deputy Director (Consolidation). In these circumstances I am unable to accept the contention of Subedar that he had not given up his claim with regard to land of Khata No. 246 in dispute. Writ Petition No. 1687 of 1980, being devoid of merits, deserves to be dismissed. 12. I, however, direct the parties, to bear their own costs.