JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Pankaj Gupta, holding brief of Sri R.N. Gupta, for the petitioners and Sri Sudhakar Mishra, for the heirs of respondent-2. 2. The writ petition has been filed against the order Joint Director of Consolidation dated 23.9.1985, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties relates to plots 38 (area 6 biswa), 40 (area 7 biswa), 43 (area 15 biswa) and 44 (area 14 biswa) recorded in basic consolidation year khata-48 of village Naupur, pargana Gaurajamo, district Sultanpur, recorded in the name of Rafi-Ullah (now represented by the petitioners). Shami-Ullah (respondent-2) filed an objection, claiming co-tenancy of 1/2 share in the land in dispute. This objection was consolidated alongwith other cases between the parties. Consolidation Officer, by his order dated 12.3.1980 allowed the objection of respondent-2 and held his 1/2 share in the land in dispute. Rafi-Ullah filed an appeal (registered as Appeal No. 122) from the aforesaid order, which was allowed by Settlement Officer Consolidation by order dated 16.6.1980 and the case was remanded to Consolidation Officer for fresh decision, after giving opportunity of hearing and evidence to the parties. After remand, Consolidation Officer dismissed the objection of respondent-2 by order dated 11.3.1981. 4. Respondent-2 filed an appeal (registered as Appeal No. 1433/317) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 17.3.1982, held that land in dispute was recorded as tenancy holdings of Shivratan son of Sarayu in 1330 F. Separate khata was carved out in the name of Rafi-Ullah in 1344 F, in which land in dispute was recorded in class-4-C as his tenancy holding. Name of Rafi-Ullah was recorded over the land in dispute in 1359 F in class-4-C, with 15 years period of cultivation. He had obtained bhumidhari certificate of the land in dispute, endorsement of which has been made in khatauni 1359 F. This entry continued up to basic consolidation year. There is no concept of joint family among Muslim. From Power of Attorney, executed in 1951 also, it cannot be proved that land in dispute was acquired by joint family. In Pariwar Register of 1971-72, Liyaqat was shown as head of the family and not Rafi-Ullah as stated by the respondent. Shami-Ullah did not file extract of khasra to prove his possession. From Power of Attorney, executed in 1951 also, it cannot be proved that land in dispute was acquired by joint family. In Pariwar Register of 1971-72, Liyaqat was shown as head of the family and not Rafi-Ullah as stated by the respondent. Shami-Ullah did not file extract of khasra to prove his possession. Receipts relating to irrigation dues filed by Shami-Ullah did not co-relates to the land in disptue. PA-10 did not contain date of its issuance nor diary of Lekhpal was produced to prove its issuance. Thus adverse possession was also not proved. He could not prove that land in dispute was of the time of common ancestor. On these findings the appeal was dismissed. 5. Respondent-2 filed a revision (registered as Revision Nos. 443) from aforesaid order. The revision was heard by Joint Director of Consolidation, who by his order dated 23.9.1985, held that land in dispute was acquired through patta in the year 1938. At that time age of Shami-Ullah, who is real brother of Rafi-Ullah, was about 10 years. Admittedly their father was not alive at that time. Rafi-Ullah acquired sirdari right from adhiwasi, in 1359 F. Even after partition in family, Shami-Ullah was in possession of 1/2 share of the land in dispute and was paying land revenue and irrigation dues, which proves that land in dispute was acquired from nucleus of joint family at the time when family was joint as such Shami-Ullah was co-sharer of 1/2 share in the land in dispute. On these findings, he allowed the revision, set aside orders of Courts below and directed for recording the name of Shami-Ullah over the land in dispute and his share was held as 1/2. Hence this writ petition has been filed. 6. The counsel for the petitioners submitted that respondent-2 took plea that the land in dispute was ancestral property but he could not prove it. Similarly his plea relating to adverse possession was also not proved. From the period of cultivation as noted in various khataunis, it is proved that land in dispute was acquired from then zamindar by Rafi-Ullah in 1344 F which corresponds to 1936. At that time age of Shami-Ullah was about 8 years. Admittedly, Dildar, their father, had died during life time of his father Parauti and at the time of his death, Shami-Ullah was three years old as admittedly by him in his oral statement. At that time age of Shami-Ullah was about 8 years. Admittedly, Dildar, their father, had died during life time of his father Parauti and at the time of his death, Shami-Ullah was three years old as admittedly by him in his oral statement. Concept of joint family property is not applicable among Muslim. Joint Director of Consolidation has illegally presumed that as at the time of acquisition of the property, family was joint as such it was joint family property. Even in joint family, a member/karta is not debarred from acquiring property separately. Liyaqat was also member of the family at the time when the land in dispute was acquired but he did not claim any right over it, although he entered witness box as a witness of respondent-2. Respondent-2 could not prove either joint possession or separate possession over 1/2 share of the land in dispute. Shahjad, Badal and Shami-Ullah jointly executed Power of Attorney dated 18.7.1951 in favour of Rafi-Ullah, authorizing him to look after their litigation, which proves that all of them were separate from Rafi-Ullah, otherwise there would have been no need of Power of Attorney. Respondent-2 was given share in the land, which was ancestral property of the parties. PA-10 produced by Shami-Ullah are forged papers in as much as on its basis name of Shami-Ullah was never recorded in khasra. Its authenticity has not been proved by summoning diary of Lekhpal. No reliance can be placed on it. The order of respondent-1 is illegal and liable to be set aside. 7. In reply to the aforesaid arguments, the counsel for the respondent submitted that in basic consolidation year khata- 48, plots 38, 40 43 and 44 were recorded alongwith plots 176, 177, 178, 179 and 233, in the name of Rafi-Ullah. Respondent-2 was given share in plots 176, 177, 178, 179 and 233. There is no contest in this respect between the parties. Admittedly Rafi-Ullah and Shami-Ullah were real brother and at the time of death of their father, Shami-Ullah was aged about 3 years. At the time when land in dispute was acquired, his age was about 8 years. It cannot be presumed that a child of 8 years will live separately from his elder brother. Admittedly Rafi-Ullah and Shami-Ullah were real brother and at the time of death of their father, Shami-Ullah was aged about 3 years. At the time when land in dispute was acquired, his age was about 8 years. It cannot be presumed that a child of 8 years will live separately from his elder brother. Otherwise also, Pariwar Register of the year 1970-71 was filed from which it was proved that family of Rafi-Ullah, Shami-Ullah and Liyaqat were residing in same house, which shows that even in 1971, their family was joint. When the property in dispute was acquired in 1936, apart from ancestral joint family property, Rafi-Ullah had no separate onus to acquire separate property. Thus the land in dispute was acquired from joint family fund, derived from ancestral property which partakes nature of ancestral property. In rural area, a child of 8 years also helps in cultivation by doing light works. Shami-Ullah through out his life remained in village and always helped in cultivation of the land in dispute. In family partition also he was given 1/2 share in the land in dispute. His possession was proved by Liyaqat, who was uncle of both the parties and an independent witness Karim-Ullah and also corroborated with revenue and irrigation receipts and PA-10, issued by Lekhpal. Findings of fact recorded by respondent-1 do not suffer from any illegality. The writ petition is liable to be dismissed. 8. I have considered the arguments of the counsel for the parties and examined the record. Among Muslim family, concept of joint Hindu family or karta of joint family is not applicable. Supreme Court G. Narayana Raju v. G. Chamaraju, AIR 1968 SC 1276 , held that it is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact and has to be proved by evidence. In the present case, respondent-2 took plea that that in dispute was ancestral property, which could not be proved as it was came to be recorded in the name of Rafi-Ullah for the first time in 1344 F as his tenancy holding. There is neither any pleading nor evidence that land in dispute was acquired from income of ancestral property. Joint Director of Consolidation raised presumption regarding the land being joint property on the ground that when the land in dispute was acquired, family was joint, although under the law no such presumption could be raised. Respondent-1 further ignored the fact that although at the time of acquisition of disputed land, Liyaqat was also residing jointly but he did not claim any share in it. Findings of respondent-1 in this respect is illegal. 9. Respondent-1 held that question adverse possession does not arise but estoppel and acquiescence will apply as in private partition, respondent-2 was given 1/2 share in the land in dispute. Shami-Ullah and Liyaqat both in their oral statement admitted that no receipts prior to arising of dispute was filed. Receipts of irrigation dues and land revenue did not corroborate with the land in dispute. If Lekhpal had issued PA-10, as produced by Shami-Ullah, finding him in possession of the land in dispute at the time of partal, there could be no reason for him for not recording possession of Shami-Ullah in khasra. Authenticity of PA-10 was not been proved by summoning diary of Lekhpal. No khasra was filed to prove possession over the land in dispute. Settlement Officer Consolidation rightly disbelieved PA-10. Apart from the land in dispute, there was also ancestral property which was recorded in khata 48, in which Shami-Ullah was given 1/2 share by order of Consolidation Officer dated 3.11.1980. No khasra was filed to prove possession over the land in dispute. Settlement Officer Consolidation rightly disbelieved PA-10. Apart from the land in dispute, there was also ancestral property which was recorded in khata 48, in which Shami-Ullah was given 1/2 share by order of Consolidation Officer dated 3.11.1980. That order is not applicable in respect of land in dispute as nature of both properties were different. 10. Shahjad, Badal and Shami-Ullah jointly executed Power of Attorney dated 18.7.1951 in favour of Rafi-Ullah, authorizing him to look after their litigation, from which respondent-1 presumed joint-ness of the family although presumption is otherwise that all of them were separate from Rafi-Ullah, otherwise there would have been no need of Power of Attorney. 11. Admittedly, land in dispute was tenancy holding and acquired in the name of Rafi-Ullah in 1344 F from Zamindar. Without consent of Zamindar, co-tenancy could not be awarded in tenancy holding. The case of adverse possession has not been accepted by any of the authorities. No presumption regarding joint family property can be raised. The orders of Consolidation Officer and Settlement Officer Consolidation did not suffer from any illegality. Joint Director of Consolidation has illegally allowed the revision. 12. In view of the aforesaid discussions, writ petition succeeds and is allowed. The order of Joint Director of Consolidation dated 23.9.1985 is set aside. The order of Settlement Officer Consolidation dated 17.2.1982 is affirmed.