The court ruled that historical evidence and conduct proved prior partition among family members, emphasizing that joint records do not negate previous separations of ownership.

JUDGMENT :

R.K. Pattanaik, J.

1. The appellant filed instant appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the impugned judgment and decree dated 11th September, 2000 promulgated in Title Appeal No.46 of 1992 by learned 2^nd Additional District Judge, Cuttack, whereby, the decision of the learned subordinate Judge, 2nd Court, Cuttack in T.S. 90 of 1989 was modified to the extent of share allotted to the parties on the grounds inter alia that the same is untenable in law.

2. The suit in T.S. No. 90 of 1989 was instituted by respondent No.1 succeeded by respondent Nos. 1(a) & 1(b) for partition and permanent injunction. The contention of the plaintiff is that there has been no partition by metes and bounds and the parties possesses the properties as per convenience and the plaintiff being the successors of one branch is entitled to half share therein. The share of interest as per the RoR has been questioned by the plaintiff, hence, the suit seeking partition of equal shares and allotment of the same. The defendants except defendant Nos. 4 & 5 contested the suit and challenged the claim of the plaintiff and justified the RoR prepared and published with separate notes of possession and allotment of share. It was denied by the defendants that there was any partition. It is objected on the ground that there are alienations made, which proved, the parties have had partition and separate possession of lands which are ancestral in nature. In support of such transfers, the defendants placed on record the sale deeds executed in respect of paddy lands. So, therefore, the defendants declined that there is no partition and challenged it in view of the separate notes of possession and earlier partition proved by conduct of the parties with the plea that the suit is not maintainable.

3. This Court by order dated 13th April, 2001 formulated following the substantial questions of law, such as:

(i) Whether there was any prior partition whether the learned court below has erred in law in holding that there was never any partition by metes and bounds contrary to the when the documents under Ext. A, B, C, D, E, E-1 and F which clearly established prior partition?

(ii) When it is fairly well settled that once there has been severance of status and shares are defined, the partition is complete and mere recording of the property jointly with separate note of possession cannot give rise to the presumption of jointness, whether the learned Additional District Judge has erred in law in holding that there was never any partition by metes and bounds mainly on the basis of Ext.A, the consolidation RoR, wherein, the properties have been recorded jointly though the documents vide Exts. A, B, C, D, E, E-1 and also Ext. F clearly establish that at least from the year 1930 till 1989 the parties have been separately recorded in respect of the properties they are in enjoyment and possession?

(iii) When admittedly by a Regd. Sale deed Banamali has transferred his share in this suit land in favour of Bhikari in 1907, in the process of which the branch of Jayaram is entitled to 12 annas share (8 annas of Banamali by purchase and 4 annas of Jayaram) whether the learned lower appellate court is justified in holding that in the absence of any previous partition the purchase of Banamali will enure to the benefit of both Radhakrishna and Bhikari?

(iv) When the plaintiff and defendants No.1 to 3 are admittedly in possession of 4 annas and 12 annas share in the family and the same stands fortified by the note of possession indicated in the successive the RoR whether the learned Lower Appellate Court is justified in not inferring previous partition?

(E) Whether the