The presumption of jointness arising from the Record of Rights is rebuttable and can be overcome by evidence of separate possession and acquisition of property individually by each of the brothers.

D.K. Seth, J.: This appeal is directed against the judgment and decree dated 29th July, 1983 passed by the learned Subordinate Judge, Maldah in Partition Suit No. 81 of 1976. The plaintiff respondent has filed the suit for partition on the ground that his father Lakshman Mondal and Ramji Mondal were enjoying the properties sought to be partitioned jointly and that there was no partition and his request for partition having been refused, he has filed the suit for partition. According to him, some of the properties stood in the name of the parties and some stood in the name of the individual members. But those are all purchased from the income of the joint properties. Therefore, all these properties are joint properties, which are liable to be partitioned.

1.2. The defendant, Ramji Mondal, on the other hand, points out that the two brothers were joint but around 45/50 years ago there was an amicable partition between the parties and since then each of the brothers had been possessing the properties separately. According to him, each plot was being possessed by each of the brothers, one by one side of the property and other by the other side of the property. That some properties were purchased individually out of their own fund and some properties were also sold individually by the parties.

1.3. The parties went to trial and produced certain documents and the Trial Court found that the properties were joint and decreed the suit.

Submission on behalf of the Appellant :

2. The learned Counsel for the appellant points out that the plaintiff has not been able to discharge the burden which lay upon him, to show that the properties purchased by Ramji Mondal were joint properties or that the properties were enjoyed by them jointly. It has further been contended that until and unless the plaintiff discharges his burden, defendant is not called upon to prove the same. She further contends that though in the Record of Rights some of the plots were shown to be as joint but the Records of Rights are documents of possession and it gives rise to presumption, which is rebut-table. It does not conclusively prove joint-ness of the property. The shares are not in dispute. It is also apparent from the evidence of PW1 that the properties were being held separately by each of them and that they were separate in mess and residence. The plaintiff has admitted that he has seen the brothers to possess the property separately even before the death of Lakshman Mondal, who allegedly died in 1362 B.S.

Submission on behalf of the Respondent :

3. On the other hand, the learned Counsel for the respondent points out that the PW 1 has been able to prove that there was joint-ness in the property. Though they may be separate in mess and residence, even then, there could be joint-ness in the property. According to him, the presumption arising out of the Record of Rights have not been rebutted. It has also been denied that they had ever sold any property or had purchased any property. It is also denied that the properties purchased by Ramji were his own properties. On the other hand, he pointed out that the parties were in the habit of purchasing properties in individual names, though the same belong to the joint family.

Presumption of jointness :

4. After having heard the learned Counsel for the parties, it appears that the plaintiff had made the statements that the properties were joint. Therefore, the burden lay upon him to prove that it were so joint. Properties standing in the name of individual persons does not mean, even if some other properties are joint, that these are joint properties. Learned Counsel for the appellant had relied on the decision in Srinivas Krishnarao Kango vs. Naryan Devji Kango & Ors., reported in AIR 1954 SC 379. In the said decision, it was held that the existence of joint family does not lead to the presumption that property held by any member of the family is joint. The burden rests upon anyone asserting that any item of property was jo