JUDGMENT : A.K. Padhi, J. - The legal representatives of Defendant No. 2 are the Appellants. Plaintiffs filed the suit for partition claiming 8 annas share in 'Kha', 'Ga', 'Gha'. 'Una' 'Cha' and 'Chha' Schedule properties on the allegation that one Hadia had two wives. Haguru was son through the first wife and Maharaga, Satrughna and Banchha were the sons through the second wife. Haguru got separate by metes 'and bounds from the other brothers before 1915 settlement and Maharaga, Satrughna and Banchha continued to remain joint. The properties are the joint family ancestral properties of Maharaga, Satrughna and Banchha. Banchha died some times in the year 1942 leaving Rukuni, his only daughter. His wife had pre-deceased him. The share of Banchha was inherited by Maharaga and Satrughna by survivorship. The Plaintiffs belongs to Maharag's branch and the Defendants belongs to Satrughna's branch, Therefore the Plaintiffs prayed that the properties maybe divided along the two branches with 8 annas share to each branch. 2. The case of the contesting Defendants is that there was a partition by metes and bounds before the year 1915. Haguru and Satrughna separated from Maharaga and Banchha who preferred to stay joint. As Banchha had only one daughter and did not have any son, Maharaga and Banchha were allotted Ac.16.75 dec. in khata No. 22 and Satrughna was allotted Ac.11.56 dec. in khata No. 27 with the understanding that Maharaga shall inherit Banchha. Accordingly, their names were recorded separately in the settlement of 1322 Sal corresponding to 1915. Khata No. 22 with at) area of Ac.16.74 dec. was recorded jointly in the name of Maharaga and Banchha and khata No. 27 with an area of Ac.11.56 dec. was recorded exclusively in the name of Satrughna and they continued to possess their respective shares separately. Hence in a not shell the Defendants' case is that Haguru:and Satrughna separated from Banchha and Maharaga by metes and bound who preferred to continue jointly. After the said partition, plot No. 436 in khat a No. 22 was sold in Jyostha, 1322 Sal to Satrughna by Maharaga and Banchha. 3. Maharaga and Banchha left their village and went away to Dhenkanal. They did not cultivate their land under khata No. 22 and abandoned those lands without payment of rent. Haguru, Pradhan, the eldest brother happened to be the 'Padhan' of the village. 3. Maharaga and Banchha left their village and went away to Dhenkanal. They did not cultivate their land under khata No. 22 and abandoned those lands without payment of rent. Haguru, Pradhan, the eldest brother happened to be the 'Padhan' of the village. He, as the headman of the village reported to the then Tahasildar of the Ex-State of Keonjhar that the land, belonging to Maharaga, who had left the village without payment of tent should be settled with Satrughna who was then willing to take the lands on payment of rent to the Darbar. The learned Tahasildar after due enquiry settled the entire land in, khata No. 22 in the name of Satrughna. After settlement Satrughna applied for mutation and it was mutated in his name. After the death of Maharaga, Satrughna and Banchha, in or about the year 1942, Parama the son of Maharaga approached the sons of Satrughna to give some lands out of khata No. 22 to him for his maintenance. A Panchayat was convened. Gauranga and Kanhu, sons of Satrughna gave voluntarily Ac.7.18 dec. of land out of khata No; 22. Gauranga Kanhu and Parama were jointly recorded in respect of khata No. 22 Gauranga and Kanhu's name was exclusively mutated in respect of khata No. 27. Since parties had earlier partitioned the properties by metes and bounds, the Plaintiffs suit for partition is not maintainable. The Plaintiffs can only claim fight, title and interest Ac.7. 18 dec. which was voluntarily given by the Defendants' father the Plaintiffs' father Parama. 4. The trial Court after discussing the oral and documentary evidence held that there was no partition by metes and bounds before the settlement of 1322 Sal. The defence plea that Ac.7.18 dec. was given by Gauranga and Kanhu to Parama out of grace is not acceptable. The trial Court also held that 'Gha' schedule land in khata No. 27 with an area of Ae.0.72 dec. and 'Una' schedule land in khata No. 10 with an area of Ac.2.27. dec. is not liable to be partitioned and decreed the suit so far as khata Nos. 22 and 27 are concerned. 5. The learned advocate for the Appellants submits that: (a) the presumption that a joint family continues to be joint is stronger in case of brothers than in the case of cousins. dec. is not liable to be partitioned and decreed the suit so far as khata Nos. 22 and 27 are concerned. 5. The learned advocate for the Appellants submits that: (a) the presumption that a joint family continues to be joint is stronger in case of brothers than in the case of cousins. But the presumption is almost nil in case of third or fourth cousins; and; (b) the fact that the brothers and cousins have been successively recorded in the record of rights with separate note of possession inter se transfer, the admission of the Plaintiffs' father before mutation. authority, the order of the then Tahasildar, Keonjhar in the year 1945 vide Ext. F, Ext. N, the award, Ext. 0, the sale deed of the year 1967 asserting title therein unequivocally prove that there was partition by metes and bounds in between Satrughna on one hand and Banchha and Maharaga on the other at the point of time when Haguru, the eldest brother separated from the family. 6. The learned advocate for the Respondents on the other hand submits that the presumption of jointness of a Hindu family is rebuttable presumption which can be displaced by direct evidence or by the conduct of the parties. The burden always is on the person who asserts that there was a prior partition. Since there is no partition deed evidencing partition of the lands, from the admission of the Defendants that the properties in khata No. 22 were joint family properties and each of them are entitled to a share unequivocally proves that there was no prior partition and the trial Court has come to the correct finding that there was no partition by metes and bounds. 7. In the plaint, the disputed properties, are described as 'Kha', 'Ga', 'Gba', 'Una', 'Cha' and 'Chha', 'Kha' schedule lands refers khata No. 22 with an area of Ac.16.74 dec. 'Ga' schedule land refers to khata No. 27 comprising an area of Ac. 11.56 dec. The Plaintiff's suit, has been decreed only regarding "Kha' schedule properties of khata No. 22 and 'Ga' schedule 'properties of khata No. 27 only.' No cross-appeal has been filed by the Plaintiffs in respect of test of the schedules. Hence the judgment of the trial Court has become final in respect of other schedules and this appeal is confined only to 'Kha' and 'Ga' schedules. 8. Hence the judgment of the trial Court has become final in respect of other schedules and this appeal is confined only to 'Kha' and 'Ga' schedules. 8. The only, question for determination in this First Appeal is as to whether there was a partition amongst Maharag, Satrughna and Banchha by metes and bounds with regard to the lands comprised in khata Nos. 22 and 27 before 1915. The suit was filed in the year 1976 and the alleged partition said to be about in the year 1915 P.W. 1 is the Plaintiff No. 1. In the examination-in-chief he has stated that Haguru had partitioned by metes and' bounds from all the other brothers while rest of the three branches still remained joint; In cross-examination he has stated: ... We had raised objection in the settlement Court and demanded all lands should be recorded in to names of an co-sharers. I cannot say what area of land has been sold out of the suit land to others. But I can say the area of the land purchased and possessed by last purchaser. Kanhei, Gourang and Parama separated from each other at one time. Gouranga and Kanhei are possessing lands separately. Gouranga has sold some lands to Minaketan Pradhan. I have signed in the sale deed (marked X) executed by Gouranga in favour of Minaketan. P.W. 2 has stated in the examination-in-chief: ... At this time Parama, Gouranga and Kanhei separated in mess and residence. At this time each of them cultivated different portions of land separately. They did not partition that lands by metes and bound. xx xx xx Banchha's daughter is alive. Her children are also living. When Gouranga, Kanhei and Paraina separated from each other, I had not been called. P.W. 3 has no knowledge of the family affairs and his evidence is of no avail. P.W. 4 is the daughter of Banchha. She has deposed: Banchha Pradhan is my father. Maharaga and Satrughna are my father's elder brothers. I have seen Maharaga and Satrughna. My father and his above named brothers lived joint till they died. She has further stated: ... Parama, Gouranga and Kanhei and their children never took care of me at any time. Gada told me that if I will depose, I will get a share out of the properties, which had belonged to my father. My father and his above named brothers lived joint till they died. She has further stated: ... Parama, Gouranga and Kanhei and their children never took care of me at any time. Gada told me that if I will depose, I will get a share out of the properties, which had belonged to my father. P.W. 5 in his examination-in-chief has stated: About 8 years back, Gouranga and Kanhei gave about one mana of land in Chhachipadar Chaka, one mana of land in Patkuder chak and a piece of homestead to the Plaintiffs. I was present when they gave the land at Chhachipadar to the Plaintiffs Plaintiffs built a ouse on the homestead which was given to me by Gouranga. ... PreviousIy Gouranga and Kanhei were cultivating, this piece of land jointly. Gouranga and Kanhei have separated from each other. By the time I returned to my village 15 years back, they had separated. They were cultivating the other lands separately.... D.W. 1 is Defendant No. 2. In the examination-in-chief he has stated: ... Since before the 1322 V.S. Settlement, my father separated from his brothers in mess, residence and properties. The lands had been partitioned. The lands in khata No. 22 had belonged to Maharaga and Banchha. My father told me that Maharaga and Banchha kept arrears of rent for 2 years and left our village and went away to Dhenkanal. Thereafter on the report of the Pradhan of the village, these lands under khata No. 22 were settled with my father and rent was, realised from my father... He has further stated: Maharaga Pradhan had sold to my father 87 decimals of land out of khat a No. 22 as per the unregistered sale deed of 1322 V.S. It was executed on the 27th day of the month of Jestha. Though he has deposed that Parama and others were never in occupation of any portions of the land In Khata No. 27 and were in possession of Ac.7.18 dec. of land which was given to them. He being of 50 years of age could not have witnessed the partition itself. D.W. 2 who is aged about 80 years 'has stated in his evidence: As Maharaga and Banchha remained absent and were in arrears of rent, the Padhan Haguru submitted a report and on the said report, these lands were settled with Satrughna. Since then' Satrughna possessed the same. D.W. 2 who is aged about 80 years 'has stated in his evidence: As Maharaga and Banchha remained absent and were in arrears of rent, the Padhan Haguru submitted a report and on the said report, these lands were settled with Satrughna. Since then' Satrughna possessed the same. The said lands are in khata No. 22. In 1943-44 Gouranga gave some lands to Parama out of khata No. 22. Gouranga demanded a Chuktinama. Parama agreed to the same and executed a Chuktinama in a Panchayat which I had attended being caned by Parama. The Chuktinama was scribed by Anirudha Patnaik. I signed the same as a witness. He is a signatory to Ext. N, the Faisala made by the Panchayat so also D.W. 3. 9. The Plaintiff mainly relies on two documents of the year 1945, which have been marked as Exts. 4 and 5. Ext. 4 is the petition of Gouranga Pradhan, father of the Defendants along with Parama, the father of the Plaintiffs to mutate their names. In the said petition, it had been averred that (translation is mine) we, the applicants are cousins, though the lands have been exclusively recorded in the name of Satrughna, the same is undivided ancestral property of Satrughna and Maharaga. Gouranga, Kanhu and Parama all have tight and possession in the properties. Hence the properties be recorded in our name jointly. This application is dated 26-8-1944 and referred to Ac. 16.74 dec. in khata No. 22. On 21-3-1945 the order was passed in Mutation Case No. 190 of 1944-45 in pursuance of the application as per Ext. 4. The order has been exhibited as Ext. 5. In the said order, it has been recorded in "all the three cousin brothers have been in possession of the area on payment of rent" and the Court ordered for joint recording of the names of Parama, Kanhei and gouranga in the settlement papers. Relying on these Exts. 4 and 5 the learned trial Court had come to the finding that since tis amounts to admission of jointness in the year 1944-45 any other documents cannot be accepted. On the side of the Defendants-Appellants the documents which are relied upon are as follows. Ext. B, the petition filed by Haguru Pradhan in Mutation Case No. 517 of 1916-17 dated 3-5-1916. Haguru though was the eldest brother of the family, was also the "Padhan" of the village. On the side of the Defendants-Appellants the documents which are relied upon are as follows. Ext. B, the petition filed by Haguru Pradhan in Mutation Case No. 517 of 1916-17 dated 3-5-1916. Haguru though was the eldest brother of the family, was also the "Padhan" of the village. In the said Ext. B. it has been stated that Maharaga has abandoned the property enjoyed by him in khata No. 22 and had not made any arrangement for cultivation of the same and has failed to pay rent regarding the properties of khata No. 22 and prayed to the authorities to re-settle the same in the name of satrughna who was agreeable to pay back rent. On tis report as Ext. B the Tahasildar has stated that Maharaga Pradhan fled away to Dhenkanal without payment of rent and ordered that in place of Maharaga, Satrughna be treated as tenant in respect of the land. Ext. B is the order of the Ex-State of Keonjhar. In the report of Ramadhany (Vol. 3 of Keonjhar State), it has been noted that under the law prevailing in the Ex-State of Keonjhar it was the duty of the "Padhan" of the village to settle the lands. These Exts. B and C coupled with the order Ext. D passed by the Tahasildar (Sadar) in Mutation Case No. 517 of 1916-17 shows that at one point of time Maharaga had abandoned the property which were in is possession and the same had been re-settled on Satrughna as he was willing to be tenant on payment of arrear rent in accordance with the prevailing rule in the Ex-State of Keonjhar. Regarding khata No. 27 it is admitted that neither the Plaintiffs nor their father had ever paid any rent and Satrughnain whose name it has been exclusively recorded was paying rent throughout. The next document relied by the Appellants is Ext. F. Ext. F is the copy of the petition dated 26-8-1944 filed by Gouranga on his behalf and his brother to mutate their name, exclusively regarding lands situated in khata Nos. 22 and 27. The application was considered by the authorities on 21-3-1945. The Court recorded the names of Gauranga and Kanhei exclusively to which Parama though present in Court did not object. The most important document which has been filed on behalf of the Defendants is Ext. N dated 11-521944. In the said Ext. 22 and 27. The application was considered by the authorities on 21-3-1945. The Court recorded the names of Gauranga and Kanhei exclusively to which Parama though present in Court did not object. The most important document which has been filed on behalf of the Defendants is Ext. N dated 11-521944. In the said Ext. N, it has been specifically stated that Haguru and Satrughna separated while Maharaga and Banchha remained Joint. As Maharaga had, gone away, to Dhenkanal abandoning the properties Satrughna, after payment of back rents has got the properties mutated in his name. As Parama, the son of Maharaga approached Gouranga; Gouranga out of compassion, has given the properties to Parama described in the schedule appended to the award. In Ext. N it is also stated that All 87 dec. of land which, Maharaga and Banchha 'bad sold to Satrughna shall not be given and except Ac.7.18 dec., Parama shall not be entitled to any other land. Ext. O is a sale deed which was executed by Maharaga and Banchha in favour of Satrughna which has been referred to in Ext. N. Ext. P is the sale deed executed by Gouranga on 5-4-1967. In the said document it has been stated that there has been a partition by metes and bounds between Gouranga and Kanhu and the property which was sought to be sold had fallen to the share of Gouranga on partition. Plaintiffs and their deceased father never paid any rent for the lands in khata No. 22 from 1917 till 11-5-1944 vide Ext. J series is also compatible with the case of the Defendants. 10. In Bhagwan Dayal Vs. Mst. Reoti Devi Subba Rao, J. speaking for the Court has observed: The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can he rebutted by direct evidence or by course of conduct.. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must he decided on the facts of each case. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must he decided on the facts of each case. To these it may he added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable influences than in a case where the evidence is not obliterated by passage of time. As has been analysed in AIR 1925 132 (Privy Council) : ... the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In AIR 1920 P.C. 46 (Nageswar Baksh Singh v. Mt. Ganesha), it has been explained: Given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint.... In 1971 S.C.D. 799 : AIR 1971 S.C. 962 (lndranarayan v. Roop Narayan and Anr.), it has been held that the presumption of union is the greatest in the case of father and sons. The strength of the presumption necessarily varies in every case. In AIR 1929 P.C. 8 (Yellappa Ramappa Naik and Ors. v. Tippanna), their Lordships opined that the presumption is stronger in case of brothers than in case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker, and third cousins are most part separated. Keeping the above principles in view I analyse the circumstances of this case which are as follows: Parties have been successively separately recorded in the record of rights. There has been inter se transaction in between the brothers vide Ext. O. Ext. N, the Panchayat Faisala records that there was partition by metes and bounds and Ac. 7.18 dec. of land were given out of compassion and Ext. N refers to Ext. O, the transfers inter se between the parties. Ext. There has been inter se transaction in between the brothers vide Ext. O. Ext. N, the Panchayat Faisala records that there was partition by metes and bounds and Ac. 7.18 dec. of land were given out of compassion and Ext. N refers to Ext. O, the transfers inter se between the parties. Ext. B and D., the applications of the "Pradhan" and the decision of the Tahasildar respectively shows that the lands were separately allotted to Banchha and Maharaga which was abandoned and on payment of back rent was settled on Satrughna by the State authorities and the conduct of Parama when properties in khata No. 27 were exclusively recorded in the names of Gouranga and Kanhei. All these circumstances unequivocally prove that there was partition by metes and bounds in between Haguru and Satrughna though Banchha and Maharag preferred to remain joint. As under Ext.N Ac. 7.18 dec. were given to Parama in khata No. 22, the joint application as per Ext. 4 was filed before the authorities in which it was referred that the properties were in past ancestral properties and Ext. 5, the mutation order was passed accordingly. In my opinion, all the documents could not have been rejected by only relying of Exts. 4 and 5. The finding arrived at by the trial Court that there was no partition by metes and bounds is not sustainable. After considering the oral and documentary evidence, I hold that there was a partition by metes and bounds in between Haguru and Satrughna from Banchha and Maharaga who continued to be joint and no further suit or partition is maintainable against the Defendants who belong to Satrughna's branch. In the result, the appeal is allowed. The suit for partition is dismissed, but in the circumstances of the case, there shall be no order as to cost. Appeal allowed. Final Result : Allowed