JUDGMENT Brijesh Kumar, Member - This is a second appeal directed against the judgment and decree dated 23.1.85 passed by Sri S.K. Lakhtakiya, Additional Commissioner. Lucknow Division, Lucknow, allowing the defendant-respondent's appeal and setting aside the judgment and decree dated 24.6.83 passed by the Assistant Collector 1st Class Rai Bareilly in a suit u/s 229-B/209 of the U.P. Zamindari Abolition & Land Reforms Act. 2. The facts of the case are that Bhagauti, Ram Sewak and Harish Chand filed a suit u/s 229-B/209 of the Act against Gaudeen and seven others impleading Gaon Sabha and State of U.P. as necessary parties. The plaintiff's case is that Sri Babu,. father of the plaintiffs was sirdar of the plot No. 374 area 3-9-2 situate in village Bala Gusis Pergana and district Rai Bareily. The land was in his exclusive possession. After his death, the plaintiffs inherited the land as bhumidhars. When the defendant started interfering with the plaintiff's peaceful possession, they rushed to civil court which restrained the defendants from interfering with the plaintiffs possession and held the plaintiffs bhumidhars of the land. The Civil Suit was, however, dismissed being out of the jurisdiction of the civil court. This necessitated the plaintiffs to file this regular suit. It was also alleged that the defendant's case is barred u/s 49 of the U.P. C.H. Act as they had not filed any objection, during the course of the consolidation operations. A prayer was made to declare the plaintiffs sole bhumidhars of the land in dispute. 3. Defendants 1 to 7 contested the suit stating that the civil court had found them in possession and dismissed the plaintiffs' suit. They also denied that the plaintiffs were declared sole bhumidhars by the consolidation authorities. However, they admitted that they had not filed any objection before the consolidation authorities under the influence of the father of the plaintiffs and plaintiffs themselves who persuaded the defendants to refrain from filing any objection which may cause fragmentation of the holding in small pieces. After the consolidation was over, the share of all the four brothers were divided. In persuance of that partition, they are in possession of their respective share and cultivating the land accordingly. Their case is that Sheetaldin, the common ancestor was the tenant of the land in dispute. After the consolidation was over, the share of all the four brothers were divided. In persuance of that partition, they are in possession of their respective share and cultivating the land accordingly. Their case is that Sheetaldin, the common ancestor was the tenant of the land in dispute. Sheetal was father of Badri, the father of the plaintiffs and defendants 3 to 7 and brother of defendants 1 and 2. After the death of Sheetaldin, Babu who was the eldest amongst all the brothers came to be recorded against the plot in representative capacity. But all the brothers held their shares as co-tenants with plaintiffs who are only in possession of 1/4. The remaining 3/4 is held by the sons of defendants 1 and 2 and defendants 3 to 7 to the full knowledge of the plaintiffs. They also contended that Section 49 of the U.P.C.H. Act is not applicable to this case. 4. On the pleadings of the parties, the learned trial court framed 8 issues and decreed the suit declaring the plaintiffs to be the sole bhumidhar of the plot No. 374/3-9-2. Felt aggrieved, the defendants went in appeal before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal declaring the defendants 1 to 7 co-tenants along with the plaintiffs. Hence this second appeal against the order dated 23.1.85. 5. I have heard the learned counsel for the parties. Sri R.P. Singh, learned counsel for the appellant has contended that if the tenancy comes in the name of the son during the life time of his father, the land will not be ancestral. Reliance has been placed on 1985 RD 13. His second contention is that the identity of the land was found intact during the consolidation operation during the year 1964 and finding the land in exclusive possession of the plaintiffs appellants, no objection was raised. Sri Hari Shanker, the learned counsel for the respondents has contended that it is clear from the report of the Commissioner that the land is divided on the spot which goes to show that the parties held their respective shares. His second submission is that the court below has given a finding fact and no substantial question of law is involved in this case. 6. I have carefully considered the arguments advanced before and have also perused the record. His second submission is that the court below has given a finding fact and no substantial question of law is involved in this case. 6. I have carefully considered the arguments advanced before and have also perused the record. The learned trial court has observed that Sheetaldin was the tenant of the plot in dispute who was father of the plaintiffs and defendants 3 to 7 and defendants 1 and 2. It has also observed that Sheetaldin is recorded in the khatauni 1332F against khata No. 280 area 3-16-15 in class 5 (1). (He is recorded in 1346F against khata No. 27 area 14-16-0. In the same year his son Babu is recorded against khata No. 235 area 3-16-18. In the final khatauni form 45, Babu is recorded in 1376-F against plot No. 374 the same khatauni Sabu is recorded along with Gaudin as co-tenant against khata No. 1017, 488 and 564 comprising 17 plots area 13-10-1. The learned trial court has further observed that both Sheetaldin and Babu (father and son) were alive in the year 1346-F . In the year 1346F, Sheetaldin is recorded against Plot. No. 97 whereas Babu was recorded against khata No. 235 with a period of 14 years. The learned Assistant Collector, therefore, came to the conclusion that Babu has been recorded over plots in dispute for the last 40 years. During the consolidation operations, chak was also carved out in his favour over which he was put in possession. He also refers to a compromise dated 3.7.81 wherein the defendants had admitted that the plot was in exclusive possession of the plaintiffs which was solely acquired by their father and that they had no concern with it. After his death, his sons inherited the land. He was, therefore not recorded in representative capacity. It has also not accepted the contention of the defendants that they are in adverse possession as they have failed to prove the date of their possession. It has also held that the defendant's case is barred by Section 49 of the U.P.C.H., Act. Holding that the defendants possession over the plot in dispute is unauthorised and against the consent of the plaintiffs, the learned Assistant Collector ordered to eject them. 7. The learned Additional Commissioner has not agreed with the findings of the learned trial court. He is of the view that the land was never settled with Babu. Holding that the defendants possession over the plot in dispute is unauthorised and against the consent of the plaintiffs, the learned Assistant Collector ordered to eject them. 7. The learned Additional Commissioner has not agreed with the findings of the learned trial court. He is of the view that the land was never settled with Babu. On the contrary, his father Sheetaldin got the khata recorded in the name of his son and so, mere entry in favour of Babu will not affect the co-tenancy rights of his brothers. The learned Additional Commissioner has also placed reliance on the report of the Commissioner and the verdict given by the III Addl. Munsif who held that both the plaintiffs and defendants jointly possess the land. Holding that the Babu's name was recorded against the plot in dispute during the life time of his father for the sake of convenience, the learned Additional Commissioner allowed the appeal holding the defendant-respondents co-tenants along with the plaintiffs-appellants. 8. Let us see that law says on this point. The issue has been examined in detail by the Hon'ble Ram Surat Singh J. of the Allahabad High Court in Raghubir and others v. D.D.C. 1985 R.D. 13. His Lordship is of the view that a property will be considered to be the property of joint Hindu Family when it is proved to the hilt that it has been acquired from the consolidated funds of the joint Hindu Family. In the absence of such proof, the property will be held to be owned by the person recorded over it. Other members of the family cannot claim co-tenancy by virtue of being a member of the joint Hindu family. Similar view has been taken by the Hon'ble K.N. Misra J. of the Lucknow Bench of the Allahabad. High Court in Tribhuwan Nath v. D.D.C. 1984 R.D. 137. It has been held that the entry of the name of the son during the life time of his father indicates that the father has ceased to be the tenant of the land. 9. The aforesaid citations are aptly applicable to this case because the facts of the case under reference and the facts of the instant case are identical. Babu is recorded against the plot in dispute during the life time of his father with a period of 14 years. He has been in continuous possession. 9. The aforesaid citations are aptly applicable to this case because the facts of the case under reference and the facts of the instant case are identical. Babu is recorded against the plot in dispute during the life time of his father with a period of 14 years. He has been in continuous possession. There is no positive evidence or otherwise to indicate that the land has been created by the consolidated funds of the joint Hindu Family The learned Additional Commissioner's observations that this entry was got made for the sake of convenience is nothing but mere presumption which cannot take the place of law, and the evidence on record. The inference drawn by the learned trial court is legally sound - both oral and documented. The contention of the learned counsel for the respondents that the finding of fact given by the court below cannot be disturbed is this second appeal is totally untenable. How can findings totally divorced from the evidence, facts and law and based of mere presumption are acceptable. 10. In view of the reasons given above, this appeal succeeds and is consequently allowed. The order of the learned Additional Commissioner is quashed and the order of the learned trial court is upheld. The parties shall bear their own costs.