JUDGMENT A. K. PARICHHA, J. : This appeal by defendants Nos. 1, 2, & 3 (appellants) and cross-appeal by defendant No.5 (Respondent No.2) are directed against the judgment and decree passed by the learned Subordinate Judge, Jajpur in Title Suit No. 14 of 1976 filed by Respondent No.1 for partition of the suit properties. 2. Respondent No.1 as plaintiff filed the above noted suit pleading inter alia that Kurup Behera had two sons, namely; Nanda and Giridhari. Rama and Panchu were the sons of Nanda. Nuri and Netra were the sons of Rama and Kangali and Khetra were the sons of Panchu. Naba (defendant No.1) and Kusa (defendant No.2) are the sons of Nuri. Siba (defendant No.3) is the son of Netra. Kangali died issueless. Khetra also died issuless leaving behind his widow Musi (defendant No.4). In the other branch Laxman was the son of Giridhari. Jogi and Ekadosi were the sons of Laxman. Hari (plaintiff) is the son of Jogi. Ekadosi died issuless. The suit Scheduled- A land measuring Ac.0.76 decimals stands recorded in the names of Rama, Panchu, Jogi and Ekadosi. The branches of Nanda and Giridhari were in possession of separate portion of the Schedule-A land by amicable arrangement prior to the Current Settlement for which the portions of home-stead were separately noted in the Current Settlement record even though there was no partition by metes and bouns. Thus he and his broth¬er Ekadosi were together in possession of plot Nos. 67 and 76 Holding No.33 noted in the plaint towards their 8 annas share. Ekadosi's had pre-deceased him. So when Ekadosi died in the 1941 his brother Jogi inherited the interest of Ekadosi as the sole surviving co-parcener in the branch of Giridhari and consequently on Jogi’s death, the plaintiff became entitled to the 8 annas share in Schedule-A property and accordingly remained in amicable possession of lands measuring Ac.0.34 decimals in Plot No.67 and 76. In the branch of Nanda also his sons Rama and Panchu were separate inter se and on death of Panchu his son Kangali enjoyed the two annas share of his late father in the suit home stead. On the death of Khetra his widow Musi Bewa (defendant No.4) continued to possess the two annas interest of Khetra. Kangali and Musi were very much attached to the plaintiff as the plaintiff was rendering services and looking after them. On the death of Khetra his widow Musi Bewa (defendant No.4) continued to possess the two annas interest of Khetra. Kangali and Musi were very much attached to the plaintiff as the plaintiff was rendering services and looking after them. So out of affection Kangali and Musi gifted their 4 annas interest in Scheduled-A property to the plaintiff by a registered gift deed and in this process the plaintiff became entitled to 12 annas shares in Scheduled-A property. Schedule-B holding belonged to defendants 1 to 3, Kangali and Khetra and accordingly Kangali and Musi had 8 annas interest in Schedule-B property, which they gifted to the plaintiff along with their 4 annas interest in Scheduled-A property. Further case of the plaintiff was that defendant No.5 Chanchala is not the daughter of Ekadosi and is a complete stranger to the family, but defendants 1 to 3 by falsely describ¬ing her as the daughter of Ekadosi obtained a sale deed and basing on such invalid sale deed tried to create disturbance in the peaceful possession of the plaintiff over Ac.0.34 decimals of Schedule A land for which the plaintiff filed Title Suit No.92 of 1973 u/s. 44 of the T.P. Act claiming the suit plots 67 and 76 as his exclusive property. Somehow the suit was dismissed for de¬fault. Being emboldened by such dismissal defendants 1 to 3 forcibly entered into of the aforesaid Ac.0.34 decimals of land and possessed it jointly with the plaintiff and did not pay heed to the plaintiff’s repeated requests for partition of the suit properties. So finding no alternative the plaintiff filed the suit claiming partition of the suit property and allotment of 12 annas shares in Schedule-A property and 8 annas shares in Sched¬ule-B property.He also claimed compensation of Rs.160/- for removal of some trees, bamboos and fish from the suit lands by defendants 1 to 3. 3. Defendant Nos. 1, 2, 3 and 5 filed joint written statement traversing the pleadings of the plaintiff in all mate¬rial particulars and pleaded inter alia, that Jogi and Ekadosi by amicable arrangement separated in mess and property in Baisakh, 1939 in presence of local gentlemen and in consequence Ekadosi was having Ac.0.19 decimals of land out of holding No.33. On his death in 1941 his only daughter Chanchala (defendant No.5) became his sole successor as his wife had predeceased him. On his death in 1941 his only daughter Chanchala (defendant No.5) became his sole successor as his wife had predeceased him. Defendant No.5 possessed the above noted Ac.0.19 decimals of land left by her father and later on sold Ac.0.17 decimals out of the same to defendants 1, 2, & 3 by means of registered sale deed dated 6.8.1973 on receipt of consideration of 700/- and delivered pos¬session of the said land to them.They denied the allegation that they removed any tree, bamboo or fish belonging to the plain¬tiff. They further pleaded that in view of the dismissal of T.S. No.92 of 1973 the suit for partition is not maintainable. As per of the provisions of Order IX Rule 9 of the C.P.C. Defendant No.4 did not file any written statement and was set ex parte. Basing on the pleadings of the contesting parties, the following issues were framed by the learned trial Court: 1. Is the suit maintainable as laid ? 2. Is Chanchala daughter of Ekadosi ? 3. Did Ekadosi die in a state of separation with Jogi ? 4. Is the plaintiff entitled to get the share as claimed ? 5. Is the suit hit by Order 9 Rule 9 C.P.C. in view of dismissal of T.S. No.92/73 of this Court ? 6. Is the plaintiff entitled to damage as claimed ? 7. To what relief, if any, is the plaintiff entitled ? 4. Six witnesses were examined and documents Exts. 1 to 5 were produced on behalf of the plaintiff. Similarly, 5 witnesses were examined on behalf of the defendants and documents produced by them were marked as Exts. 6. Is the plaintiff entitled to damage as claimed ? 7. To what relief, if any, is the plaintiff entitled ? 4. Six witnesses were examined and documents Exts. 1 to 5 were produced on behalf of the plaintiff. Similarly, 5 witnesses were examined on behalf of the defendants and documents produced by them were marked as Exts. A to E. On consideration of these evidences learned trial Judge came to hold that Jogi and Edakosi were joint till their death, defendant No.5 is not the daughter of Ekadosi and is not entitled to inherit the property of Ekadosi Kangali and Musi gifted away their shares in Schedules A & B properties in favour of the plaintiff vide gift deed Ext.2, the plaintiff became entitled to 12 annas shares in Schedule A and 8 annas share in Schedule B properties, the alleged sale of 17 decimals of land by defendant No.5 in favour of defendants 1 to 3 is not genuine and does not convey any title; that the suit is not barred under Order 9 Rule 9 of the C.P.C. Consequently, he decreed the suit preliminarily on contest against defendants 1, 2, 3, & 5 and ex parte against defendant No.4 and granted 12 annas share in Schedule A property and 8 annas shares in Schedule B properties to the plaintiff and the rest part of the properties to defendants 1, 2, & 3. The claim for compensation on account of the alleged removal of trees, bamboos and fish was, however, rejected. The present appeal and cross-appeal are against the said judgment and decree. 5. Mr. R. C. Rath, learned counsel for the appellants only challenged the findings of the learned trial Court on the plea that those findings are contrary to the evidence on record and settled principles of law. He stated that there was clear evi¬dence of D.Ws.1 to 5 about separation between Jogi and Ekadasi in the year 1939 and there was also admission of P.W.5 in this re¬gard, but those evidence were unreasonably ignored by the learned trial Court. He further argued that when defendant No.5 as D.W.3 herself stated that she is the daughter of Ekadasi and Ambi and her statement was thoroughly supported by D.Ws.1, 2, 4 and 5, who were close to the family of Ekadasi, there was no scope for the learned trial Court to disbelieve the daughtership of Chanchala. He further argued that when defendant No.5 as D.W.3 herself stated that she is the daughter of Ekadasi and Ambi and her statement was thoroughly supported by D.Ws.1, 2, 4 and 5, who were close to the family of Ekadasi, there was no scope for the learned trial Court to disbelieve the daughtership of Chanchala. He also challenged the legality of the gift of the shares of Kangali and Musi in favour of the plaintiff. 6. Mr. Panda, learned counsel for respondent No.2-cross appellant challenged the findings of the trial Court on issue Nos.2 & 3 and adopted the argument offered by learned counsel for the appellants. 7. Mr. P. C. Rout, on behalf of M/s. B. K. Dagara and associates, learned counsel for the respondent No.1, while sup¬porting the judgment of the learned trial Court submitted per contra that heavy onus was cast on the appellants as well as respondent No.2 (defendant Nos.1 to 3 and 5) to establish by clear and cogent evidence the separation between Jogi and Ekadasi in the year 1939 because such plea was against the legal presump¬tion of jointness. He stated that the above noted defendants miserably failed to discharge the onus as they could not produce a scrap of paper regarding separation between Jogi and Ekadasi and the statements of D.Ws. were highly improbable and unreli¬able. Regarding the daughtership of Chanchala, he argued that no document was there and the evidence of D.Ws. were shaky and unworthy of acceptance and for that reason that learned trial Court rightly refused to held that defendant No.5, is the daugh¬ter of Ekadasi and Ambi, Mr. Rout stoutly argued that the find¬ings of the learned trial Court on issue Nos.2 and 3 are perfect¬ly in accordance with the materials on record and the settled norms of law. He supported the findings of the trial Court on the issue of gift and apportionment of shares between the respective parties. 8. At the outset, it is worthwhile to point out that Jogi and Ekadasi belonging to the branch of Giridhari had undisputedly 8 annas share in the suit property. It is also not disputed that Ekadasi died in the year 1941 long prior to the commencement of Hindu Succession Act, 1956. 8. At the outset, it is worthwhile to point out that Jogi and Ekadasi belonging to the branch of Giridhari had undisputedly 8 annas share in the suit property. It is also not disputed that Ekadasi died in the year 1941 long prior to the commencement of Hindu Succession Act, 1956. So, if both the brothers Ekadasi and Jogi continued to be joint till the death of Ekadasi, then the share of Ekadasi would pass on to his brother Jogi by way of survivorship in which event the plaintiff as the only heir of Jogi would inherit the entire 8 annas share of the suit property even if it is proved that defendant No.5 is the daughter of Late Ekadasi. On the other hand, if Ekadasi and Jogi were already separate before the death of Ekadasi and defendant No.5 is proved to be the daughter of Ekadasi, then the share of Ekadasi would not go to Jogi and his son, but would passed on to his own heir, namely, defendant No.5. Jauntiness in Hindu family is to be pre¬sumed unless separation is specifically established by clinching evidence. Such being the legal position, the normal presumption would be that Jogi and Ekadasi continued to live in jauntiness. The onus was, therefore, heavy on defendant Nos.1 to 3 and 5 to prove that Jogi and Ekadasi had separated before the death of Ekadasi. In this regard, these defendants pleaded that Jogi and Ekadasi separated in mess and property in the year 1939. But in support of this plea, they were unable to produce a single docu¬ment or record. They simply relied on the oral evidence of D.Ws. and P.W.5. D.W.1, who is no other than defendant No.2 stated that Ekadasi died prior to Jogi and before his death Ekadasi had separated from Jogi Baisakha, 1939. D.W.2 did not say anything on this issue of separation. D.W.3, who is defendant No.5 stated that by the time of her mother’s death, Jogi and Ekadasi were already separate in all respect. D.W.4 claimed that he was present when Jogi and Ekadasi were separated. D.W.5 also stated that Jogi and Ekadasi separated in mess and residence and that he knew about this as he was in visiting term to the house of Jogi and Ekadasi. D.Ws.1 and 3 are respectively defendant Nos.2 and 5. D.W.4 claimed that he was present when Jogi and Ekadasi were separated. D.W.5 also stated that Jogi and Ekadasi separated in mess and residence and that he knew about this as he was in visiting term to the house of Jogi and Ekadasi. D.Ws.1 and 3 are respectively defendant Nos.2 and 5. So, they are highly interested witnesses and much reliance cannot be placed on their statements without reasonable corrobo¬ration from independent and reliable source. D.W.2 spoke nothing about partition. D.W.4 could not say the exact year and month of the alleged separation and simply stated that 2-4 years after Manika’s death, Jogi and Ekadasi were separated. He further stated that Manika died 15-16 years back during the life time of Ekadasi. If his statement is accepted, then separation between Jogi and Ekadasi took place only 12 years before he gave evidence in the Court in the year 1977 although it is the admitted case that Ekadasi died on the year 1941. The evidence of D.W.4 was thus absurd. In cross-examination, D.W.5 stated that separation between Jogi and Ekadasi took place 40-48 years back when he was himself a boy of 13 years. There was hardly any scope of presence of this witness on the occasion of separation or having any; real knowledge about such separation as he was a minor boy and could not have been called or consulted. Moreover, it was avail¬able in the evidence that both the D.Ws. 4 and 5 were some how inimically disposed of towards the plaintiff. So, their evidence could not have been taken as independent or reliable. The defend¬ants relied heavily on the statement of P.W.5, who stated that Hari, Netra, Kangali, Khetrabasi, Jogi and Ekadasi amicably possessed different portions of suit homestead without effecting complete partition of the same. Such statement does not prove partition or separation between Jogi and Ekadasi as it is the admitted case of the parties that even without partition the respective members of the family were amicably possessing differ¬ent portion of the suit homestead. Law is settled that mere occupation of different portions of the family homestead does not pre-suppose partition or separation. 9. D.W.1 stated that Ekadasi was paying rent for his share separately and was obtaining rent receipts for about 30 years, but not a single rent receipt was proved in this regard. Law is settled that mere occupation of different portions of the family homestead does not pre-suppose partition or separation. 9. D.W.1 stated that Ekadasi was paying rent for his share separately and was obtaining rent receipts for about 30 years, but not a single rent receipt was proved in this regard. The statement was also unbelievable as the alleged separation took place in 1939 and Ekadasi was already dead by 1941. So, there was no scope for his depositing rent for 30 years for his share. On the other hand, the rent receipts Ext.E and E/1 would show joint payment of rent in respect of the entire Ac.0.19 dec. and there was Exts.E/2 to E/5 to show joint payment of rent in respect of the entire Ac.0.76 dec. in Schedule ‘A’ land. Ext.1 series also show that the plaintiff was paying rent for the entire 8 annas share of the suit properties. If he would not have inherited 4 annas share of Ekadasi, then he would have deposited the rent for the entire 8 annas share of the suit property. D.W.3 claimed that she inherited the share of Ekadasi as his daughter and has been paying tax to the municipality for the house left by Ekadasi. But she could not produce a scrap of paper in support of her state¬ment. As has been stated earlier in the absence of any specific proof of separation, presumption would be in favour of jointness. Since defendants 1 to 3 and 5 could not produce any reli¬able and clinching evidence to show that there was separation between Jogi and Ekadasi before the death of Ekadasi, the learned trial Court committed no error in concluding that Jogi and Ekada¬si were still joint when Ekadasi expired in 1941. 10. Defendant No.5 claiming herself to be the daughter of Ekadasi sold Ac.0.17 decimals of land out of plot Nos.67 & 76 noted in Schedule A to defendants 1, 2, & 3 by means of a regis¬tered sale deed dated 6.8.1973 which is marked as Ext. 10. Defendant No.5 claiming herself to be the daughter of Ekadasi sold Ac.0.17 decimals of land out of plot Nos.67 & 76 noted in Schedule A to defendants 1, 2, & 3 by means of a regis¬tered sale deed dated 6.8.1973 which is marked as Ext. A. Since defendants 1, 2, & 3 claimed their right, title and interest over the said Ac.0.17 decimals of land burden was on them to prove that defendant No.5 is the daughter of Ekadasi because if defend¬ant No.5 is not established as the daughter of Ekadasi then de¬fendants 1 to 3 would nor get any interest over the property noted in Ext.A. Defendant No.5 was D.W. 3, defendant No.4 was D.W.1. Besides these two witnesses, three other witnesses D.Ws.2, 4 and 5 were also examined to prove that defendant No.5 is the daughter of Ekadosi. D.Ws. 1 & 3 are highly interested witnesses as they are the defendants 2 & 5 in the suit. Their self-serving statement cannot be relied unless found unimpeachable, unblem¬ished and is supported by independent evidence. No document was produced by the contesting defendants to indicate that defendant No.5 is the daughter of late Ekadosi. Learned counsel for the appel¬lants submits that the statement of D.Ws.2, 4 & 5 are there to corroborate the claim of D.Ws. 1 & 3, as these witnesses are relatives of defendant No.5 and have special knowledge about the daughtership of defendant No.5. D.W.2 stated that Ratan Patra married to Chanchala, the daughter of Ekadasi Behera and that Nuri Behera gave Chanchala in marriage with Ratan Patra. This witness has not stated how Nuri Behera giving Chanchala in mar¬riage to Ratan patra proves that Defendant No.5 is the daughter of Ekadasi Behera. D.W. 2 is not a relative of Ekadasi and has no special means of knowledge about the family affairs of Ekadasi. This is evident from his statement in paragraph 5 of his deposi¬tion wherein he stated that the defendant No.5’s marriage took place 26 years back when he himself was 24 years old. Defendant No.5 as D.W.3 stated that she was given in marriage by Nuri when she was 10 years old. This statement was given by D.W.3 when she was 47 years old. So, according to her statement, her marriage took place 37 years back which is contrary to the evidence of D.W.2. Defendant No.5 as D.W.3 stated that she was given in marriage by Nuri when she was 10 years old. This statement was given by D.W.3 when she was 47 years old. So, according to her statement, her marriage took place 37 years back which is contrary to the evidence of D.W.2. D.W.4 claimed that Ekadosi’s wife Ambi was his niece and D.W.5 claimed that Nuri Behera had married his sister. They stated that they were in visiting terms with the family of Eka¬dosi and Nuri, but in cross-examination they virtually admitted that they never attended any function or ceremony performed in the house of Ekadasi and Nuri. They were not able to say about any incident of birth and death in the family of Ekadasi. Rather they admitted that they never attended any birth day or 21st day ceremony of any child in the family of Ekadasi. Evidence of a witness having special means of knowledge regarding relationship in a family is admissible u/s. 50 of the Evidence Act. Special means of knowledge has to be proved independent of the opinion by conduct. The test to be supplied to the competency of a witness claiming to have special means of knowledge with regard to the relationship between one with the other has been described in the case of Ulla Dei v. Malli Bewa and others ; 33 (1967) CLT 740 wherein it is clarified that special means of knowledge germi¬nates from regular contacts and not from a solitary instance or visit. D.Ws. 4 & 5 were only distantly related to Ekadasi and they had no scope of frequent visit to the household of Ekadasi. These witnesses also admitted that they rarely attended any family function in the house hold of Ekadasi. In such situation, these witnesses cannot be said to have special means of knowledge about the relationship in the family of Ekadasi. Thus there was no real support to the claim of defendant 5 from the D.Ws. There was also no document to show that she was the daughter of Ekadasi or was treated as such anywhere. Even no voter list or official record describing Defendant’s No.5 was daughter of Ekadasi was produced. In such a situation, learned trial Court cannot be blamed for drawing a conclusion that contesting defend¬ants failed to prove that defendant No.5 was the daughter of Ekadasi. 11. Even no voter list or official record describing Defendant’s No.5 was daughter of Ekadasi was produced. In such a situation, learned trial Court cannot be blamed for drawing a conclusion that contesting defend¬ants failed to prove that defendant No.5 was the daughter of Ekadasi. 11. The evidence on record thus show that defendant No.5 failed to prove that she is the daughter of Ekadasi Behera. Therefore, she cannot inherit the property of Ekadasi or sell any part of the property of Ekadasi. Even otherwise since it is established from evidence that Ekadasi died in the year 1941 in a state of jointness with his brother Jogi, on his death, his share in the joint family property would pass onto Jogi by way of survivorship and daughter of Ekadasi, if any, would not be enti¬tled to any share in the property of Ekadasi. 12. Admittedly in the suit holding No.33 described in Sched¬ule ‘A’ of the plaint Rama and Panchu as the heirs of Nanda had four annas share each and similarly Jogi and Ekadasi as the heirs of Laxman, the only son of Giridhari had 4 annas share each. Kangali and Khetra as the sons and heirs of Panchu inherited the share of Panchu and became owner of 2 annas share each. Kangali was issueless and on the death of Khetra his widow Musi inherited the share of Khetra. It is also the admitted case of the parties that Rama and Panchu were the owners in possession of the Sched¬ule ‘B’ properties and as such on panchu’s death his moity share in the same ws inherited by his sons Kangali and Khetra and thus Kangali and Khetra had each 4 annas share in the same. On the death of Khetra, his widow Musi inherited her husband’s 4 annas interest in Schedule ‘B’ property. The plaintiff claimed that Kangali and Musi out of affection gifted their shares in Schedules ‘A’ & ‘B’ properties to him and executed registered gift deed, Ext.2, on 14.3.1970. In this regard the registered deed was duly proved by the attesting witness P.W.3 and the gift transaction was also specifically admitted by the contesting defendants in their written statement. That being so, the plain¬tiff besides inhering the property of Jogi and Ekadasi also inherited the shares of Kangali and Musi in Schedules ‘A’ and ‘B’ properties. In this regard the registered deed was duly proved by the attesting witness P.W.3 and the gift transaction was also specifically admitted by the contesting defendants in their written statement. That being so, the plain¬tiff besides inhering the property of Jogi and Ekadasi also inherited the shares of Kangali and Musi in Schedules ‘A’ and ‘B’ properties. So learned trial Court did not go wrong in holding that the plaintiff acquired 12 annas share in the Schedule ‘A’ properties and 8 annas share in Schedule ‘B’ properties. 13. The appellants as well as the cross-appellant chal¬lenged the maintainability of the suit on the ground that a former suit by the plaintiff bearing T.S. No.92 of 1973 had been dismissed. The plaintiff as P.W.1 admitted that he had filed Title Suit No.92 of 1973 for declaration that the suit plot Nos.67 & 76 are the exclusive properties of his father and that Rama and Panchu had no interest therein. There is no pleading by any of the parties that there was a previous partition of the suit properties; so the prayer for declaration that plot Nos. 67 & 76 are the exclusive properties of the plaintiff’s father was misconceived and dismissal of such suit cannot form a bar for a suit for partition particularly when the parties admit that there was no prior partition in the family. This aspect has been ex¬haustively dealt by learned trial Court in paragraph 11 of the judgment. So, the finding that the suit is not barred under the provisions of Order IX Rule 9, C.P.C. is correct and legally sustainable. 14. For the aforesaid reason, the judgment and decree of the learned trial Court is confirmed and the appeal and cross-appeal are dismissed on contest with cost. Order accordingly.