The presumption of jointness of a Hindu Mitakshara family can only be rebutted by evidence of a prior partition by metes and bounds.

K. P. MOHAPATRA, J.

( 1 ) THE appellant who is the plaintiff in the suit for partition has assailed the judgment and decree passed by the learned Additional Munsif, Athmallik dismissing the suit which in appeal were confirmed by the learned Subordinate Judge, Angul.

( 2 ) THE plaint reveals the following genealogy and facts:- the parties indisputably have 69. 59 acres of land in village Purunamanatri described in greater detail in the plaint schedule which are ancestral joint family property recorded jointly in the names of the appellant and the respondents in the latest settlement record of rights. Each of the branches is entitled to 1/3rd share. There has not so far been a partition by metes and bounds but the parties are in possession according to convenience. The appellant is in possession of lands less than his legitimate share. Therefore, he prayed for a decree for partition of the suit lands by metes and bounds. 2. The respondents in a joint written statement alleged that there was a family partition in the year 1940 in which some lands of village Purunamanatri and about 11 acres of land belonging to the family in village Tumbabajeni were allotted to the share of the appellant's father. While he was in possession of his share of lands in Purunamanatri, he disposed of the Tumbabajeni lands in favour of one Sanatan Pradhan. So a fresh suit for partition was not maintainable.

( 3 ) THE learned Additional Munsif considered the oral and the documentary evidence particularly an unregistered document suggesting partition (Ext. E) and came to the conclusion that the fathers of the parties being three brothers had completely separated in mess and property. Therefore, he dismissed the suit for partition by metes and bounds. On appeal, the learned Subordinate Judge discarded a few documents including Ext. E, but nevertheless came to the conclusion for reasons of his own that there had been an earlier partition and so the appellant could not pray for partition afresh. Therefore, he affirmed the decision of the learned lower court.

( 4 ) MR. S. C. Ghosh, learned counsel appearing for the appellant raised the following contentions:- (1) There was no document showing partition of joint family property of the parties by metersand bounds much less Ext. E which was a manufactured document and saw the light of the day after the evidence of both the parties in the trial court had concluded. In any event, if at all the document is believed, it will at best show disruption of the joint family arid separate possession of ancestral lands by the parties according to convenience. (2) About 11 acres of land of village Tumbahajeni belonging to the joint family were sold in auction for default of land revenue to the Raja of Athmallik and purchased by the appellant's father Tirtha Pradhan in 1941, but subsequently he sold the land to one Sanatan Pradhan in the year 1947. So the lands of Tumbabajeni were not acquired by the appellant's father on partition, but were self-acquisitions over which the other two branches had no claim or share. Mr. A. C. Mohanty, learned counsel appearing for the respondents, on the other hand, urged that the concurrent findings of fact recorded by the learned courts below are not available to be disturbed in second appeal and in any view of the matter the evidence, both oral and documentary, conclusively prove a prior partition by metes and bounds and so the suit was rightly dismissed. It is necessary to examine the contentions with reference to the findings recorded by the learned courts below on the basis of evidence, both oral and documentary, adduced by the parties.

( 5 ) THE appellant (P. W. 1) stated in his evidence that there was no partition amongst the three branches. His father Tirtha was serving as a Constable and had purchased the Tumbabajeni lands in auction, D. W. 1 (respondent No. 3) stated that forty years before his giving evidence in court, the three branches partitioned the joint family property and