JUDGMENT K. P. Singh, J. - This is a plaintiffs writ petition arising out of a suit under S. 176/229-B, U. P. Act No. 1 of 1951. 2. Necessary facts giving rise to the present writ petition are that the plaintiff-petitioner and contesting defendant Madho are related, as is evident from the following pedigrees : 3. It had been alleged in the plaint that Mahadeo, father of the defendant was Karta Khandan of the family and the disputed land had been acquired by him in representative capacity, therefore, the plaintiff-petitioner had half share in the disputed land. Since the name of the plaintiff was not recorded in the revenue record and that the defendant Madho was denying the title of the plaintiff in the disputed land, therefore, the necessity for the suit for declaration and partition of the disputed land. 4. The defendant Madho had contested the claim of the plaintiff-petitioner with the allegations that the plaintiff and the defendant's father had been living separately and the disputed land was acquired exclusively by defendant's father Mahadeo through lease deed dated 24-6-1948, therefore, the plaintiff-petitioner had no share in the disputed land and the suit was liable to be dismissed. 5. The trial court through its judgment dated 14-5-1971 contained in Annexure 1' attached with the writ petition accepted the claim of the plaintiff-petitioner and decreed the suit. Aggrieved by the judgment of the trial court the defendant-opposite party had preferred an appeal which was allowed by the first appellate court through its judgment dated 19-10-1972 contained in Annexure 2' attached with the writ petition. Thereafter the plaintiff-petitioner preferred a second appeal which has been dismissed by the second appellate court through its judgment dated 2nd March, 1978. Now aggrieved by the judgment of the second appellate court the plaintiff-petitioner has approached this court under Article 226 of the Constitution. 6. Learned counsel for the petitioner has contended before me that the judgments of the appellate courts suffer from patent errors of law as they have misappropriated the facts and evidence on record and they have patently erred in placing burden of proof on wrong shoulders in the circumstances of the present case. 7. Second contention raised on behalf of the plaintiff-petitioner is that the first appellate court has patently erred in interfering with the findings recorded by the trial court on questions of fact. 7. Second contention raised on behalf of the plaintiff-petitioner is that the first appellate court has patently erred in interfering with the findings recorded by the trial court on questions of fact. According to the learned counsel for the petitioner the appellate courts could not interfere with the findings of the trial court in view of the rulings reported in AIR 1951 SC 120 , Sarju Pershad Ramdeo Shau v. Jwaleshwari Pratap Narain Singh; 1982 All LJ 427, Hari Nandan v. Deo Narain; 1985 All WC 625, Mani Ram v. Viresh Kumar and various other rulings. 8. The learned counsel for the opposite party has tried to refute the contentions raised on behalf of the petitioner. According to him the appellate courts have arrived at correct conclusions and their findings need not be interfered with in writ jurisdiction by this court. He has emphasised that the disputed land had been acquired by the defendant's father after enforcement of the Act XVII of 1939, therefore, the appellate courts have arrived at a right conclusion that the disputed land was self-acquisition of the defendant's father in view of the provisions of Sections 33 and 38, U. P.Tenancy Act, 1939. 9. It has also been emphasised that the appellate courts had as much powers as the trial court to appraise the evidence on record, hence in the facts and circumstances of the present case the appellate courts have rightly appreciated the evidence and have arrived at correct conclusions which cannot be interfered with in writ jurisdiction. 10. 1 have considered the contentions raised on behalf of the parties and I have gone through the judgments of the revenue courts. In my opinion the revenue courts have failed to examine the claim of the parties from correct angle. 11. In the present case a knotty question of burden of proof arises. On the findings of fact arrived at by the revenue courts it is evident that the defendants claim that the disputed property was acquired after separation in the family has not been established. The first appellate court has criticised the evidence of the plaintiff petitioner and has accepted the claim of the defendant-opposite party without indicating that the defendant-opposite party had succeeded in establishing that the defendant's father had acquired the disputed property with his own separate income. The first appellate court has criticised the evidence of the plaintiff petitioner and has accepted the claim of the defendant-opposite party without indicating that the defendant-opposite party had succeeded in establishing that the defendant's father had acquired the disputed property with his own separate income. From the facts involved in the case it is evident that when the disputed land was acquired the family was joint and that the defendant's father Mahadeo was Karta of the family and that the family had sufficient nucleus with which the disputed land could be acquired, but the question remains whether the disputed land was really acquired with the joint family fund. To my mind the appellate court has not approached the problem from correct angle. Section 33 proviso of U. P. Tenancy Act reads as below:- "No person shall be deemed to be a co-tenant notwithstanding that he may have shared in the cultivation of the holding, unless he was a co-tenant from the commencement of the tenancy, or has become such by succession or has been specifically recognised as such in writing by the landholder." 12. Section 38, U. P. Act No. XVII of 1939, reads as below: "No person shall be deemed to have an interest in a tenancy to which the provisions of Section 35, S. 36 or S. 37 apply merely by reason of being joint in estate with any person with whom a contract of tenancy has been made or who has succeeded to the interest of a tenant or who has become a tenant by operation of law or otherwise, and except in the case of a co-widow of a co-tenant who dies leaving no heir entitled to succeed under the provisions of this Act, no interest in such tenancy shall pass by survivorship. Where the persons possessing such interest are joint in estate they shall be deemed for the purposes of succession to be tenants in common." 13. Section 90, U. P. Tenancy Act, 1939 provides : "No landholder shall take a premium for the admission of a tenant to holding, and it shall not be a condition of any tenancy that the tenant shall render any service to or do any work for the landholder, whether for wages or not." 14. Section 90, U. P. Tenancy Act, 1939 provides : "No landholder shall take a premium for the admission of a tenant to holding, and it shall not be a condition of any tenancy that the tenant shall render any service to or do any work for the landholder, whether for wages or not." 14. Relying upon the above three sections of U. P. Act No. XVII of 1939 learned counsel for the contesting opposite party has contested that there cannot be any acquistion of tenancy in representative capacity. Therefore the impugned judgments of the appellate courts should not be disturbed. 15. In 1965 All LJ 582, Mahabir v. Suba Lal, a learned single Judge has indicated that till the repeal of Act XVII of 1939 a joint Hindu family as such could be held to be a tenant. 16. In 1952 All LJ 301 , Rajendra Misra v. Tirath Raj Misra another learned single Judge has indicated that : "The ordinary rule of Hindu law that properties acquired while the family was joint and with the help of the ancestral or joint family property should be regarded as joint family property and that the burden of proof that it was self acquired of a single member should be on that member, should be applied also to a case where the property in question was a tenancy holding." 17. After hearing learned counsel for the contesting opposite party I am unable to accept the broad proposition that whenever a member of the joint Hindu family acquires tenancy land, it shall be only his property and not the property of other members constituting the joint Hindu family. In my opinion whether the acquisition is in representative capacity or for the self will be determined on the facts of each case. As a matter of law it cannot be accepted that during the continuance of U. P. Act No. XVII of 1939 acquisition of tenancy by Karta of a joint Hindu family shall be only his separate property. 18. No doubt the rulings in this State are somewhat conflicting and the counsel for the parties have placed reliance upon the rulings in support of their contentions. 19. 18. No doubt the rulings in this State are somewhat conflicting and the counsel for the parties have placed reliance upon the rulings in support of their contentions. 19. My attention has been drawn to the ruling reported in 1930 All LJ 974, Acharji Ahir v. Harai Ahir wherein a Division Bench has made the following observations :- "The ordinary rule of Hindu Law, that properties acquired while the family was joint and with the help of the ancestral or joint family property should be regarded as joint family property, and that the burden of proof that it was self acquired property of a single member should be on that member should be applied to a case where the property in question is a tenancy." 20. At page 1005 of 1930 All LI 1003: (at p. 552 of AIR 1930 All 550), Gaya Prasad v. Jaswant Rai, another Division Bench of this court, has indicated that : "There can be no presumption that any property, which is in possesstion of one member of this joint family, is necessarily his separate property. The party, who wishes to make out that it is his separate property should establish that case." 21. In AIR 1969 SC 1076 , Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh the following observation has been made :- "....The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate." 22. In the present case it has been established that when the disputed property was acquired family was joint and that the family had sufficient nucleus, therefore, a knotty question arose as to whether the defendant opposite party has succeeded in establishing that the disputed land was his self acquisition. 23. In the present case it has been established that when the disputed property was acquired family was joint and that the family had sufficient nucleus, therefore, a knotty question arose as to whether the defendant opposite party has succeeded in establishing that the disputed land was his self acquisition. 23. Learned counsel for the contesting opposite party has placed reliance upon the rulings mentioned in the impugned judgments of the appellate courts and he has drawn my attention to the ruling reported in 1970 Rev Dec 365, Bhagirath Devi Kumar Rani Sahiba v. Agricultural Income-tax Revision Board and has emphasised the following observations : "....In any event there is a finding of the Commissioner that no funds were required because payment of Nazrana for the acquisition of these tenancy lands had been declared illegal by law. The finding of the Commissioner has not been disturbed by the revisional court in a case where acquisition of the property does not require any expenditure of funds. The presumption upon which reliance is placed by the learned counsel for the State cannot be raised." 24. Another ruling relied upon by the learned counsel for the opposite party is reported in 1984 Rev Dec 133 , Ram Prasad v. Deputy Director of Consolidation wherein a learned single Judge of this Court has made the following observation at page 136 col. 2 para. 2 (of Rev Dec) : (at p 1400 of All LJ para 12)which reads as below: "These two decisions aforesaid are based on the principles of Hindu Law and those principles will be applicable to the tenancy which is transferable, for instance fixed rate tenancy and has been acquired by the earning of the property or the nucleus. of the joint family. Where the tenancy is not transferable and no money was spent in its acquisition, she principles of Hindu Law will not be applicable." 25. As regards the contention of the learned counsel for the petitioner that the appellate a Court could not interfere with the findings recorded by the trial court based on appraisal of oral evidence, I think that the broad contentions raised on behalf of the petitioner cannot be accepted. It is well known that the first appellate court has co-extensive power with the trial court in the matter of appraising of evidence on record. It is well known that the first appellate court has co-extensive power with the trial court in the matter of appraising of evidence on record. If the appraisal of oral evidence by the trial court does not depend upon the demeanour of the witnesses examined before it, I think that the appellate court has ample powers to re-appraise the evidence on record and can upset the finding recorded by the trial court if it suffered from any mistake of law or fact. In the present case a knotty question of burden of proof is involved. The trial court while accepting the claim of the plaintiff-petitioner has not addressed itself to the provisions of Sections 33, 38 and 90, U. P. Tenancy Act, 1939. Therefore, I think that the first appellate court can appreciate the evidence on record and applying correct proposition of law to the facts and circumstances of the present case can determine the claims of the parties. In case of necessity it can record necessary findings contrary to the findings recorded by the trial court. 26. Since the first appellate court has not examined the evidence of the defendant and has failed to record categorical finding whether the defendant has succeeded in establishing his claim regarding self acquisition I think that its judgment deserves to be quashed. The second appellate court has confirmed the judgment of the first appellate court without addressing itself as to whether the first appellate court has correctly accepted the claim of the defendant-opposite party on the question of burden of proof. I think that the judgment of the second appellate court also suffers from patent error of law and deserves to be quashed. 27. For the foregoing discussions I think that the impugned judgments of the appellate courts suffer from patent errors of law and deserve to be quashed. Accordingly I quash the impugned judgments of the appellate courts contained in Annexures 2' and 3' attached with the writ petition and direct the first appellate court to re-examine the claims of the parties in the light of the discussions made above. Parties shall bear their own costs.