ORDER : 1. Heard, Shri U.S. Sahai, learned counsel for the petitioners, learned Standing Counsel for opposite parties No. 1 to 3 and Shri Ashok Kumar Maury a, learned counsel for the private opposite parties. 2. This writ petition under Article 226 of the Constitution of India has been filed challenging the orders dated 23.03.1979, 15.02.1980 and 23.04.1981 passed by the Consolidation Officer, Settlement Officer Consolidation and Assistant Director of Consolidation respectively. 3. The facts in brief for adjudication of the instant writ petition are that Khata No. 302 was recorded in the Khatauni of basic year in the names of Ram Bharos, Shankar and Gomti. An objection was filed by the petitioners under the Consolidation of Holdings Act 1954 (here-in-after referred as the Act of 1954) that Kali Din was the common ancestor of the petitioners and the respondents and the land in question was acquired in his time and it was recorded in the name of Chonhar, father of Ram Bharos, Shankar and Gomti, being elder and Karta of the family and it was a joint Hindu family property. The objection was allowed ex-parte in favour of the petitioners. The opposite parties moved an application for recall of the ex-parte order. The application was allowed and ex-parte order was set aside and the matter was decided afresh by the Consolidation Officer by means of order dated 23.03.1979 after considering the pleadings and evidence. The petitioners had filed an appeal under Section 11(1) of the Act of 1954. The appeal was dismissed by means of order dated 15.02.1980. Feeling aggrieved, the petitioners had filed revision which has also been dismissed by means of order dated 23.04.1981. Hence the present writ petition was filed challenging all the three orders. 4. Submission of learned counsel for the petitioners was that the land in dispute i.e. Khata No. 302 was recorded in the name of Ram Bharos, Shankar and Gomti in the Khatauni of basic year, the predecessors in interest of the opposite parties and who came from the branch of Chonhar son of Kali Din. On publication of records after Partal and verification of Khatauni the petitioners/their predecessor in interest filed an objection under Section 9 of the Act of 1954 seeking co-tenancy on the ground that the land was coming down from their common ancestor Kali Din. On publication of records after Partal and verification of Khatauni the petitioners/their predecessor in interest filed an objection under Section 9 of the Act of 1954 seeking co-tenancy on the ground that the land was coming down from their common ancestor Kali Din. After Kali Din the name of his elder son Chonhar was recorded being head of the family and Karta of Khandan, but the petitioners/predecessors in interest of the petitioners were the co-tenants as they form a joint family and there was no partition in the joint family. It was also submitted that the land in dispute was acquired by joint family funds and the land in dispute was hereditary and alternatively the plea of adverse possession was taken by the petitioners by virtue of their uninterrupted and joint possession in the full knowledge of the opposite parties/their ancestors. The matter was referred by the Assistant Consolidation Officer to the Consolidation Officer, before whom the oral and documentary evidences were led, but the opposite parties did not appear and the objections were allowed ex-parte and the petitioners were held to be co-tenants. The opposite parties moved an application for recall of the ex-parte order which was recalled and the impugned order dated 23.03.1979 was passed without considering the evidence and material on record. 5. Learned counsel for the petitioners had further submitted that Khataunies of first, second and third settlement were filed before the Consolidation Officer. The Patta filed by the respondents was not proved in accordance with the Evidence Act, even then the objection has been rejected merely on the ground that the land in dispute was recorded in addition to few plots in the subsequent years after Kali Din. While the major portion of the land in question was recorded in the name of common ancestor Kali Din, therefore, the addition of a few plots in the subsequent years will not deprive the petitioners from co-tenancy rights, which has not been considered by the Consolidation Authorities. The alternative case of the petitioners by adverse possession and acquiring Sirdari rights has also not been considered by the Consolidation Authorities. 6. The alternative case of the petitioners by adverse possession and acquiring Sirdari rights has also not been considered by the Consolidation Authorities. 6. On the basis of above, learned counsel for the petitioners submitted that since Kali Din was the common ancestor of the petitioners and the respondents and the partition had not taken place, therefore, the petitioners are also entitled for co-tenancy rights in the land in dispute as only Sudama has deposed in his evidence that Shanker and Gomti had acquired the land in dispute. Learned counsel for the petitioners has relied on Dukkhu vs. Deputy Director of Consolidation, Varanasi and Others, 2019 (136) ALR 899, Lakhan Singh and Others vs. Bitola Kunwar and Others, 1981 (7) ALR 607, Dharmawati Tewari and Others vs. Prem Shanker Tewari and Others, 1998 (4) AWC 701 , Sattan and Others vs. D.D.C. and Others, 2017 (137) RD 137, Ram Chandra Dubey and Others vs. Dy. Director of Consolidation and Others, 1977 AWC 731 (All.) : 1978 RD 1 , Smt. Dhana Bai vs. Smt. Kewara Bai and Others, AIR 1972 M.P. 100 , Ram Jas and Others vs. Surendra Nath and Others, AIR 1980 (All.) 385 : 1980 AWC 730 and Santosh Jaiswal and Others vs. State of M.P. and Others, AIR 1996 SC 207 . 7. Per contra, learned counsel for the respondents submitted that the pedigree is not in dispute and Kali Din was the common ancestor but after his death the partition had taken place between Chonhar and Parmeshwari and they had also acquired separate land after partition. The objection filed by the petitioners/predecessors in interest of the petitioners under Section 9 of Act of 1954 was rejected by the Consolidation Officer after considering the pleadings and evidence of the parties and appeal and the revision filed by the petitioners have also been rejected in accordance with law. There is concurrent findings of all the three courts against the petitioners. The writ petition has been filed on misconceived and baseless grounds and it is liable to be dismissed with costs. 8. I have considered the submissions of learned counsel for the parties and perused the record. 9. The dispute in the instant writ petition relates to Khata No. 302 of village Raipur, Pargana Chanda, Tehsil Kadipur, District Sultanpur. The writ petition has been filed on misconceived and baseless grounds and it is liable to be dismissed with costs. 8. I have considered the submissions of learned counsel for the parties and perused the record. 9. The dispute in the instant writ petition relates to Khata No. 302 of village Raipur, Pargana Chanda, Tehsil Kadipur, District Sultanpur. The pedigree given in the judgment of the Consolidation Officer and the Settlement Officer Consolidation is not disputed to the parties. Kali Din was the common ancestor of the petitioners and the respondents. The plot in dispute was recorded in the Khatauni of basis year in the names of Ram Bharos, Shanker and Gomti son of Chonhar. At the time of Partal/verification of Khataui the portions were shown in the CH-4 and recorded in CH-5 which was issued. On publication of records an objection under Section 9 of the Act of 1954 was filed by Shiv Sahai and others (predecessors in interest of the petitioners) claiming their co-tenancy rights on the ground that from the time immemorial (Muris Ala) they were living jointly and their eating, agriculture, business and living was joint. The land in dispute was ancestral and is of the time of Kali Din Misra. Even if it is found that all the land in dispute was not ancestral then also it was acquired for the benefit of the whole family. The name of Chonhar, being the elder and Karta of the family, was recorded as representative of the family after the death of Kali Din. After the death of Chonhar the names of Ram Bharos, Shanker and Gomti were recorded. Since there was no dispute and the petitioners were in possession on their portion of land therefore, they had never made any effort for recording their names in the revenue records. After the death of Kali Din Misra neither any settlement had taken place nor his successors were dispossessed as such the whole land in dispute is ancestral. An alternative plea was taken that in case the land is not found to be ancestral the objectors are in continuous possession on their portion of land since prior to Zamindari and have become Sirdar of the land in dispute so their names should be recorded in the land in dispute as co-tenants. 10. An alternative plea was taken that in case the land is not found to be ancestral the objectors are in continuous possession on their portion of land since prior to Zamindari and have become Sirdar of the land in dispute so their names should be recorded in the land in dispute as co-tenants. 10. It appears that initially an ex parte order was passed in favour of the predecessors in interest of the petitioners, but that was recalled. Thereafter the objections were decided after considering the pleadings and evidence. Three issues were framed. Issue No. 1 and 2 were as to whether Shiv Shankar and others are co-tenure holders in Khata No. 302 and as to whether Shiv Shanker and others are Sirdar on the basis of continuous possession. 11. Nakched was produced on behalf of the petitioners who had stated that the land in dispute was acquired by Kali Din who was in possession in his life time. After his death Chonhar and Parmeshwari were in possession who used to live together but being elder and Karta of the family the name of Chonhar was recorded in the records in representative capacity. After his death the names of Ram Bharos etc. were recorded. It has also been stated that both the parties are in possession on their half portion of land. However he has also stated that the partition had taken place between Chonhar and Parmeshwari after the death of Kali Deen and Parmeshwari had acquired 7 bigha land after separation, in which Chonhar has no share. On behalf of respondents Sudama son of Ram Bharos was produced in evidence who had stated in his evidence that on the land in dispute he, Raghubir and Ram Kishor, Shankar and Gomti are in possession. The land in dispute was acquired by Ram Bharos, Shanker and Gomti from Diyara State. The land in dispute was given in two times. He also disclosed both the lands. 12. After considering the evidence the Consolidation Officer found that the land in dispute as Khata No. 4 is recorded in the third settlement in the name of Ram Bharos, Shanker and Gomti sons of Chonhar, which is not in the situation of second settlement. In the second settlement area of 6 bigha 18 biswa was in the name of Chonhar and the Khatauni is of category 5. In the second settlement area of 6 bigha 18 biswa was in the name of Chonhar and the Khatauni is of category 5. In the third settlement 08-05-05 area with 32(1:3) rent is recorded in the name of Ram Bharos. It is clear from this that the land which was recorded in the name of Kali Din in the first settlement did not remain in the name of Ram Bharos etc. sons of Chonhar. Besides it from the Patta of 1294 Fasali and copy of Kabooliyat of 1318 Fasali which were filed by Sudama it is apparent that the land in dispute was acquired after Kali Din. It has also been found from the copy of the Khatauni of third settlement of Village Narendrapur regarding Khata No. 201 and 286 that both were recorded in the name of Parmeshwari son of Kali Din and in Village Raipur the name of Chonhar and Ram Bharos is recorded in separate Khatas from which it is proved that the name of Chonhar was not recorded in the land in dispute in the representative capacity being head of joint Hindu family and Karta of Khandan and separation had already taken place. 13. It also appears from the evidence of Jagannath that the Kabooliyat 1318 Fasali by which the land in dispute was given to the father of respondents Chonhar by the Diyara State though it was not registered. The patta and Kabooliyat have not been proved in accordance with the Evidence Act, but the fact remains that after Kali Din the names of Chonhar and Parmeshwari were recorded on their respective shares and according to the evidence of Nakched, who appeared on behalf of the petitioners after the death of Kali Din, the partition had taken place between Chonhar and Parmeshwari and 7 bigha land has been acquired by Parmeshwari after separation in which Chonhar has no share. Therefore this Court is of the view that the findings recorded by the Consolidation Officer that the name of Chonhar was not recorded in representative capacity in the land in dispute and it was acquired by him and recorded in the names of his sons Ram Bharos, Shanker and Gomti in the Khatauni of basic year and there was no joint Hindu family does not suffer from any error or illegality and it is on the basis of correct appreciation of evidence. 14. 14. The petitioners have also failed to prove the joint Hindu family or any joint nucleus from which it could have been acquired for the common benefit of the family. In fact it has also not been disputed that some plots did not find place in the subsequent settlement which itself shows that there was separation and the plots acquired subsequently by the parties have been recorded in their names. 15. So far as the alternative plea of the petitioners/predecessors in interest of the petitioners on the basis of adverse possession is concerned, the learned trial court found that no such evidence has been led to prove the continuous possession. The Settlement Officer Consolidation has also recorded a finding that when the division had taken place after the death of Kali Din then the division of land must also have got done. The village in which the land in dispute is situated is covered under the Awadh Rent Act. Therefore, also the plea of the petitioners that all were in possession on their portion and the name of Chonhar was recorded in representative capacity is misconceived because after the death of Kali Din, if Parmeshwari was also in possession then normally his name should also have been recorded. The Deputy Director of Consolidation has also found that the plots, their area and rent have also been changed after the death of Kali Din as recorded in the names of Chonhar and Parmeshwari. Learned Revisional Court has also found that the rent receipt produced by the petitioners is of Rs. 3/- while the rent of the Khata in dispute was Rs. 33/-. Besides it the rent receipt of half portion has not been produced, therefore, also the petitioners are not entitled for recording their names in the land in dispute. 16. Learned Revisional Court has also found that the rent receipt produced by the petitioners is of Rs. 3/- while the rent of the Khata in dispute was Rs. 33/-. Besides it the rent receipt of half portion has not been produced, therefore, also the petitioners are not entitled for recording their names in the land in dispute. 16. The main thrust of the arguments of the learned counsel for the petitioners was that since there was joint Hindu family and the land was acquired for the welfare of the joint family which was recorded in the name of Chonhar being elder and Karta of Khandan and thereafter his sons in representative capacity, therefore, their names should also be recorded as co-tenure holders as they are in possession on their portion of land, but, as discussed above, the petitioners have failed to prove the jointness of family and any joint nucleus after the death of Kali Din from which the land in dispute could have been acquired for the welfare of the family, rather his own witness Nakched has stated in evidence that the separation had taken place between Chonhar and Parmeshwari after the death of Kali Din, therefore, the burden of proof that after the death of Kali Din there was joint family and any joint nucleus was on the petitioners/predecessors in interest of the petitioners. 17. This Court, in the case of Dukkhu vs. Deputy Director of Consolidation, Varanasi and Others, 2019 (136) ALR 899 : 2019 (143) RD 514, has held that if the family was joint headed by a karta and land revenue was also being paid in respect to land acquired in the name of certain individual members of joint family from the joint family funds, onus lies upon persons who claim that property was acquired from individual resources and not from joint family fund and allowed the writ petition on the ground that the land in dispute was joint in co-tenancy of three sons of Shiv Charan in 1291 Fasali to 1307 fasali and unless there is something on record to show that there was a partition or family settlement, co-tenancy rights could not have come to an end. But in the present case the petitioners have failed to prove the payment of land or it's revenue from any joint family fund and the land in dispute was recorded in the name of sons of Chonhar in basic year khatauni and the names of the petitioners/predecessors in interest of the petitioners were not recorded on the land in dispute. 18. This Court, in the case of Lakhan Singh and Others vs. Bitola Kunwar and Others, 1981 (7) ALR 607, has held that where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family property. 19. The judgment in the case of Smt. Dharmawati Tiwari and Others vs. Prem Shanker Tiwari and Others, 1998 (4) AWC 701 (All.) is also not of any assistance to the case of the petitioners because in that case also the trial court after considering all relevant aspects of the controversy viz. continuity of jointness till the house in dispute is acquired, availability of nucleus of the joint family for purchase of the house in dispute, treatment and conduct of the parties with respect to the property in dispute while raising a presumption of jointness of the family had placed the burden upon the shoulder of the contesting respondents to prove that jointness of the family came to an end from the property in dispute as it was alleged to have been self acquired. But in the present case the petitioners have failed to discharge their initial burden, therefore, the plea of the petitioners that the opposite parties were required to prove that the jointness of the family has come to an end is misconceived and not sustainable in the eyes of law. 20. This Court, in the case of Sattan and Others vs. D.D.C. and Others, 2017 (137) RD 137, has considered several judgments of the Hon'ble Apex Court and held that the one who asserts has to prove that the property is a joint family property. 20. This Court, in the case of Sattan and Others vs. D.D.C. and Others, 2017 (137) RD 137, has considered several judgments of the Hon'ble Apex Court and held that the one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. 21. This court, in the case of Ram Chandra Dubey and Others vs. Dy. Director of Consolidation and Others, 1977 AWC 731 (All.) : 1978 RD 1 , has held that if members of the joint family, who are joint in status, earn and acquire property with their income, even without the aid of any ancestral nucleus, the presumption is that the property so acquired is the joint family property. But it is not applicable on the present case because in the present case the witness of the petitioners has deposed that after the death of common ancestor the partition had taken place and some property was acquired from his own resources by the other brother Parmeshwari in which the respondents had no share as such there was no joint status. 22. Learned counsel for the petitioners has also relied on the judgments in the case of Smt. Dhana Bai vs. Smt. Kewara Bai and Others, AIR 1972 M.P. 100 , Ram Jas and Others vs. Surendra Nath and Others, AIR 1980 (All.) 385 and Santosh Jaiswal and Others vs. State of M.P. and Others, AIR 1996 SC 207 in support of his submissions regarding registration of the lease and the kabooliyat and payment of stamp duty thereon which is of no assistance to the case of the petitioners because even if they were not registered that does not make much difference because the petitioners have otherwise failed to prove their case by any cogent evidence. The petitioners have failed to prove the jointness of family and the joint nucleus from and out of which the property in dispute could have been acquired. 23. The petitioners have failed to prove the jointness of family and the joint nucleus from and out of which the property in dispute could have been acquired. 23. The Hon'ble Apex Court, in the case of D.S. Lakshmaiah and Another vs. L. Balasubramanyam and Another, AIR 2003 SC 3800 has observed that a property could not be presumed to be Joint Hindu Family merely because of the existence of a Joint Hindu Family and raised an ancillary question in paragraph-7 and answered the same in paragraph-18. The same are extracted below:- “7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant. 18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” The same principle has been followed by the Hon'ble Apex Court in the case of Makhan Singh (D) by LRs. vs. Kulwant Singh, (2007) 10 SCC 602 . 24. In view of aforesaid discussion this Court is of the considered opinion that the petitioners have failed to prove their case therefore the impugned orders dated 23.03.1979, 15.02.1980 and 23.04.1981 have rightly been passed by the Consolidation Officer, Settlement Officer Consolidation and Assistant Director of Consolidation in accordance with law after considering the cogent evidence and material on record. This court does not find any illegality or error in the orders. Writ petition has been filed on misconceived grounds, which lacks merit and is liable to be dismissed. 25. The writ petition is, accordingly, dismissed. No order as to costs.