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2013 DIGILAW 2107 (ALL)

Kamla Prasad v. D. D. C.

2013-08-14

SIBGHAT ULLAH KHAN

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JUDGMENT Sibghat Ullah Khan,J. Heard Sri Gopesh Tripathi, learned counsel for the petitioners and Sri R.L. Mishra, learned counsel for all the contesting respondents. 2. The dispute relates to agricultural land comprised in Khata No.45. In the basic year (when the consolidation started) the land was recorded in the name of Sarju Prasad, father of the petitioner. Ram Raj and Sherai respondent nos. 3 and 5 filed objections under Section 9-A (2) of the U.P.C.H. Act claiming co tenancy in the land in dispute to the extent of 1/3rd share each alleging that the land belonged to the joint family. The applicants respondents stated that Pran had four sons Bala prasad, Sarju Prasad (petitioners' father), Ram Prasad and Ram Samhar; that Ram Raj one of the objectors was one of the two sons of Bala Prasad and Sherai the other objector was one of the five sons of Ram Samhar and the property was joint family property and the name of Sarju Prasad was entered as Karta of the family in the representative capacity. Sarju Prasad died during the pendency of the proceedings before the C.O. and was substituted by both the petitioners his sons. 3. Sarju Prasad contended that he was looking after the agricultural operations of Smt. Yashoda Kunwar and in lieu thereof she let out the property in dispute to him hence he was exclusive tenure holder. C.O. final record, Faizabad where the dispute was registered as Case No.141/2344; Kamla Prasad vs. Ram Raj decided the matter on 17.8.1983 rejecting the objections of Ram Raj and Sherai and holding that Sarju Prasad was the exclusive tenure holder of the land in dispute. As he had died hence it was directed that names of the petitioners should be recorded at his place. Against the said order, Ram Raj and Sherai filed appeal no.931, SOC, Faizabad Sadar allowed the appeal on 21.3.1984. Against the said order, petitioners' filed revision no. 1157, DDC, Faizabad dismissed the revision on 20.8.1985 hence this writ petition. 4. SOC and DDC held that until 1975, the family was joint and it was not proved that Sarju Prasad acquired the property from his separate means and for his benefit alone. Judgment of SOC is detailed however DDC in only few lines has dismissed the revision. 5. 1157, DDC, Faizabad dismissed the revision on 20.8.1985 hence this writ petition. 4. SOC and DDC held that until 1975, the family was joint and it was not proved that Sarju Prasad acquired the property from his separate means and for his benefit alone. Judgment of SOC is detailed however DDC in only few lines has dismissed the revision. 5. SOC mentioned that in the Khatauni 1359 fasli (when the Zamindari was abolished) land in dispute was entered in the name of Sarju Prasad alone and period of possession was mentioned as 17 years which proved that when Sarju Prasad got the land, the family was not joint. However thereafter it was held that from perusal of copy of Pariwar registed and voter list, it was clear that at least until 1975 the family was joint. Thereafter SOC very rightly mentioned that even if family is joint still presumption of joint acquisition can not be drawn. However, thereafter SOC mentioned that there was no evidence on record to prove that Sarju Prasad in spite of being member of joint family acquired the property in dispute individually in his personal capacity. 6. The SOC after rightly holding that joint family does not lead to the presumption of joint acquisition, committed an error of law by holding that there must be evidence of independent personal acquisition. If presumption is to be drawn regarding individual personal acquisition then burden-shifts upon the other side to prove that the property was purchased from Joint Hindu Family Funds. 7. The Supreme Court in AIR D.S. Lakshmaiah and another vs. V.L. Balasubramanyam 2003 (10) SCC 310 : AIR 2003 S.C. 3800 after discussing several authorities including those of privy council held that unless it is proved that Joint Hindu Family had some nucleus yielding such income from which property could be purchased, there can not be any presumption that property acquired by any member of the Joint Hindu Family including Karta belonged to the Joint Hindu Family. In the instant case, there was no allegation by the contesting respondents that property belonged to Pran the common ancestor. More over Sarju Prasad was not even eldest brother. In the pedigree given by contesting respondents themselves, he was shown to be at no.2. No.1 eldest being Bala Prasad (father of Ram Raj) respondent no.3. 8. In the instant case, there was no allegation by the contesting respondents that property belonged to Pran the common ancestor. More over Sarju Prasad was not even eldest brother. In the pedigree given by contesting respondents themselves, he was shown to be at no.2. No.1 eldest being Bala Prasad (father of Ram Raj) respondent no.3. 8. Learned counsel for the petitioner has also cited the following authorities: - (i) Shahji vs. DDC 2006 (101) RD 461 (ii) Ram Avadh vs. Ram Das 2009 LCD 712 (Supreme Court) (iii) Mara Pasappa vs. Ningappa 2011 (9) SCC 451 9. Learned counsel for the petitioners has further argued that in respect of land of another Khata i.e. Khata No.57 matter was decided by the DDC and copy of the said judgment has been annexed along with rejoinder. However it is not necessary to consider this aspect of the matter. 10. Accordingly writ petition is allowed. 11. Judgments and orders passed by SOC and DDC are set aside and judgment and order passed by C.O. is restored.