Lands held by members of a former joint family are to be aggregated or clubbed with lands held by parent or spouse for determination of ceiling area under the Orissa Land Reforms Act, 1960, notwithstanding partition prior to the appointed day.

S. C. MOHAPATRA, J.

( 1 ) THESE two writ applications under Arts. 226 and 227 of the Constitution of India arise out of a proceeding under Chapter IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act') for determination of the ceiling surplus land. Three days after the hearing of O. J. C. No. 1821 of 1979 was concluded and the judgment was reserved, O. J. C. No. 1822 of 1979 came up for hearing. Since both the writ applications arise out of the common revisional order involving the same question of fact and law, they are disposed of by this judgment.

( 2 ) SRIKAR Pradhan, the father of both the petitioners submitted his return under S. 40-A of the Act. He has four sons, namely, Bijoy (Minor), Trinath, Banshidhar and Sudam. Out of them, three sons, viz. Trinath, Banshidhar and Sudam also submitted similar returns independently. Claim of Srikar and three sons is that as early as 1963, they are separated by partition of their lands by metes and bounds and all the four are individual landholders having their own families. Claim of Trinath who is a major married son separated as such prior to 26-9-1970 from his father Srikar was accepted and his lands were excluded from consideration of the ceiling surplus lands of the family of Srikar. However, the lands of Sudam and Banshidhar were included. On determination that the family consists of Srikar, Sudam, Banshidhar and Bijoy, the draft statement was revised and confirmed under S. 44 (1) of the Act. Sudam and his brother Banshidhar being aggrieved preferred appeals under S. 44 (2) of the Act. Having failed in appeals, they preferred revisions under S. 59. The petitioners not being able to get their lands excluded from ceiling in revision, have approached this Court for quashing the orders of the O. L. R. authorities in these two writ applications.

( 3 ) MR. S. Misra (1), the learned counsel for the petitioners has submitted that the two petitioners having separated from their father by partitions of the joint family property in 1963 much prior to the coming into force of Chapter IV of the Act on 1-10-1965, are to be treated as individuals and not as members of the family of Srikar, the father. He has placed reliance on the decisions of this Court reported in (1978) 46 Cut LT 109 (Gourendra Pratap Singh Deo v. State of Orissa) and (1983) 55 Cut LT 31 (Bhubaneswar Prasad Singh Deo v. State of Orissa) for the purpose.

( 4 ) IN (1978) 46 Cut LT 109 (supra), the petitioner claimed before the Revenue Officer that the lands of his joint family consisting of himself, his wife and three sons had been divided by metes and bounds much before 1-10-1965 when Chapter IV of the Act came into force and after partition, no member of the family was possessed of more than the ceiling area. The revisional authority under the Act accepted the family partition as claimed. Yet it remitted the matter back for further enquiry to find out whether the parties were in separate cultivating possession. It was also directed by the revisional authority that in case separate cultivating possession is found, the parties would be entitled to separate ceiling. Relying upon an earlier decision of this Court under the Orissa Agricultural Income-tax Act, 1947, reported in (1971) 1 Cut WR 208 (Ramanath Panda v. State of Orissa), and a decision of the Supreme Court reported in AIR 1961 SC 1077 (Kashinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi), it was held by this Court :"once the fact of partition is accepted, there is hardly scope in view of what has been observed by the learned Chief Justice in the agricultural income-tax matter for enquiry into actual separate cultivating possession and in the absence of such evidence to direct that notwithstanding the fact of partition, the members of the family would be entitled to one ceiling area. . . . . . . . . . . . . . . . "the direction in the revisional order was quashed and the Revenue Officer was directed to finalise the matter on the basis