JUDGMENT B.K. NAYAK, J. : The petitioner has filed this writ application challenging the orders under Annexure-1 passed by the Consolidation Officer, Anandapur in Objection Case No.217 of 1992 and order under Annexure-3 passed by the Commissioner, Consolidation in Consolidation Revision Case No.476 of 1994 and further prays to restore the order passed by the Deputy Director, Consolidation, Jajpur in Appeal Case No.138 of 1993 (Annexure-3). 2.The dispute relates to C.S. Plot No.594, Ac.0.11 and C.S. Plot No.595, Ac.0.04 under C.S. Khata No.12, which originally stood recorded in the names of Goura, Deba and Nityananda, three sons of late Bali Senapati, the common ancestors of the petitioner and opposite party Nos.1 to 4. During the Consolidation Proceeding Plot No.594 was divided into two L.R. Plots, i.e., L.R. Plot No.594, Ac.0.09 and L.R. Plot No.594/1147, Ac.0.02. The following admitted genealogy gives the relationship of the petitioner and opposite party Nos.1 to 4 inter se. Bali Senapati |-------------------------------------------|-----------------------------------| Late Goura | |-----------|---------| Late Deba Late Nityananda | |-----------------| Late Indramani Kangali Hari Banamali | |----------------------------| Dahala Jada During the consolidation operation, the petitioner-Kangali Senapati filed Objection Case No.217 of 1992 before the Consolidation Officer claiming to record L.R. Plot No.594/1147, Ac.0.02 which is part of C.S. Plot No.594, Ac.0.11 in his favour. The basis of his claim in the sale deed executed by Indramani Senapati in his favour. The petitioner’s case was that the three brothers, Goura, Deba and Nityananda got their joint family properties partitioned in Partition Suit No.667 of 1931-32. As per the compromise decree, Nityananda, the father of opposite party Nos.1 and 2 got a total of two acres of land out of the family property. Goura and Deba continued to remain joint in mess and property. In order to get possession of his share of two acres, Nityananda filed Execution Case No.333/167 of 1933-34. In the execution case he got possession, as per the report of the Kanungo, of an area of Ac.0.02 1/3 out of Sabik Plot No.594 and Ac.0.01 2/3 from Sabik Plot No.595 along with other undisputed lands. Thus, Nityananda got a total area of four decimals from Plot Nos.594 and 595. While continuing in jointness with Goura, Deba expired issueless prior to 1943-44, as a result of which his 1/3rd interest in the suit plots devolved on Goura, who became the owner of the 2/3rd interest in the suit land. Thus, Nityananda got a total area of four decimals from Plot Nos.594 and 595. While continuing in jointness with Goura, Deba expired issueless prior to 1943-44, as a result of which his 1/3rd interest in the suit plots devolved on Goura, who became the owner of the 2/3rd interest in the suit land. Indramani, the father of opposite party Nos.3 and 4, transferred Ac.0.03 3/4 out of his share in favour of the petitioner in 1970 by registered sale deed. 3.Apparently, the present opposite party Nos.1 and 2 were not parties to the objection case before the Consolidation Officer. On perusal of the documents filed by the petitioner and filed enquiry report submitted by the Amin, the Consolidation Officer came to hold that since Deba died issueless, both branches of Goura and Nityananda are entitled to half share each in suit plot Nos.594 and 595, and that Indramani having sold his share to the petitioner, the latter alone became entitled to half share and the opposite parties, namely, Jada and Dahala, sons of Indramani should be deleted from the record. Accordingly, by his order dated 29.01.1993 under Annexure-1 the Consolidation Officer directed to record plot No.595, Ac.0.07 instead of Ac.0.04 in favour of Hari and Banamali (present opposite party Nos.1 and 2) and Plot No.594, Ac.0.06 instead of Ac.0.09 and Plot No.594/1147 Ac.0.02 in favour of the petitioner, Kangali Senapati. 4.Aggrieved by the order of the Consolidation Officer, the petitioner filed Appeal Case No.138 of 1993 before the Deputy Director, Consolidation, Jajpur in which the present opposite party Nos.1 and 2 were impleaded as respondent Nos.1 and 2. 5.In the Consolidation Appeal before the Deputy Director, Consolidation, opposite party Nos.1 and 2 for the first time claimed 1/3rd interest of Deba stating that Deba sold his interest to their father, Nityananda vide registered sale deed No.3962 dated 20.12.1952. The said sale deed was challenged by the present petitioner stating that opposite party Nos.1 and 2 have never claimed the suit land on the basis of such sale deed of 1952, which never saw the light of the day and that it was a forged and fabricated deed in as much as Deba was a literate man but he has purportedly put his LTI on the deed in question and that Deba having died prior to 1943-44, he could not have executed the deed in 1952. It was also contended by the petitioner that opposite party Nos.1 and 2 were not made parties in the objection case, nor did they raise any claim of their own on the basis of the sale deed before the Consolidation Officer and, therefore, it was not open to them to raise such a claim in the appellant Court. Opposite party Nos.1 and 2 filed the certified copy of the registered sale deed No.3962 dated 20.12.1952 purported to have been executed by Deba in favour of their father, Nityananda transferring Ac.0.03 and 8 1/3 links out of plot No.594 and Ac.0.06 and ½ links out of Plot No.598, stating that the original of the sale deed has been lost and destroyed in a fire accident. The Deputy Director came to hold that Deba was a party to the Partition Case No.667 of 1931-32 and the Execution Case No.333/167 of 1933-34, but he was not impleaded as a party in Case No.22/19 of 1943-44 filed by Nityananda for recovery of possession, evidently because Deba was not alive by then. It was also found by him that as per the Amin report opposite party Nos.1 and 2 were not in possession over the land which they claimed to have purchased. It was also found that the petitioner-appellant purchased the share of Indramani to the extent of Ac.0.03 3/4th by registered sale deed dated 16.02.1970. It was also found that the petitioner-appellant was possessing the entire eleven decimals in plot No.594 which has been converted to L.R. Plot No.594 Ac.0.09 and L.R Plot No.594/1147, Ac.0.02 and that opposite party Nos.1 and 2 were not in possession of the same. Accordingly, the appellate authority set aside the order of the Consolidation Officer under Annexure-1 and directed to record L.R. Plot No.594 as well as 594/1147 in favour of the petitioner-appellant and L.R. Plot No.595 Ac.0.04 in favour of respondents-opposite party Nos.1 and 2 vide his order dated 22.03.1994 under Annexure-2. 6.The present opposite party Nos.1 and 2 challenged the aforesaid appellate order by filing Consolidation R.C. Case No.416 of 1994 before the Commissioner Consolidation, Orissa. The Commissioner Consolidation took note of the facts that Nityananda got separated from Goura and Deba by virtue of the partition decree and enjoyed 1/3rd share separately and remaining 2/3rd was enjoyed by Goura and Deba. The Commissioner Consolidation took note of the facts that Nityananda got separated from Goura and Deba by virtue of the partition decree and enjoyed 1/3rd share separately and remaining 2/3rd was enjoyed by Goura and Deba. The Commissioner accepted the certified copy of death register obtained from the police station with entry that the death of Deba took place on 21.08.1953. He also accepted and relied on the certified copy of the sale deed purported to have been executed by Deba in favour of Nityananda on 22.12.1952. It was held by him that non-implementation of Deba as a defendant in Civil Case No.22/1943-44 filed by Nityananda for recovery of possession does not by itself prove that Deba had already died prior to 1943-44 and that such non-implementation may be for any other reason. With regard to the purported LTI of Deba on the sale deed of 1952, the revisional authority held that Deba was about 60 years old in 1952 and, therefore, he probably preferred LTI to his signature. Accepting the sale deed of 1952 to be a valid deed, the revisional authority set aside the appellate order of the Deputy Director, Consolidation and directed to record Ac.0.09½ decimal in favour of revision petitioners (present opposite party Nos.1 and 2) and Ac.0.05½ decimal in favour of the present petitioner out of the LR plot Nos.594, 594/1147 and 595. 7.In assailing the revisional order, the learned counsel for the petitioner submits that the petitioner only filed the claim application in respect of L.R. Plot No.594/1147, Ac.0.02 against the present opposite party Nos.3 and 4 as because their father, Indramani had sold his interest out of the 2/3rd share in favour of the petitioner and that the present opposite party Nos.1 and 2 were not concerned about the entire C.S. Plot No.594 and, therefore, they were not made parties and as such it was not open to the Consolidation Officer to pass order for reducing the area of LR Plot No. 594 and consider any claim of the opposite parties, particularly when the entire C.S. Plot No.594 was recorded during the Major Settlement of 1975 in favour of the petitioner. It is contended that opposite party Nos.1 and 2 having not raised any claim with regard to Plot No.594, the Consolidation Officer as well as the revisional authority could not have directed to record part of the said plot in favour of opposite party Nos.1 and 2. It is also his submission that the so called sale deed said to have been executed by Deba in the year 1952 in favour of Nityananda having never seen the light of the day and neither Nityananda nor opposite party Nos.1 and 2 having raised any claim on the basis of such sale deed since the date of its purported execution, and that the deed having merely contained the purported thumb impression of Deba, who was a literate man, the deed must be held to be forged and fabricated one. He also submitted that no foundation has been laid for non-production of the original sale deed and for leading the certified copy of the sale deed into evidence. It is also submitted that the reasoning given by the revisional authority explaining the purported thumb impression of Deba on the so called sale deed and the non-impletion of Deba in the case of 1943-44 filed by Nityananda for recovery of possession are wholly unacceptable and, therefore, the revisional order can not be sustained. The learned counsel appearing for opposite party Nos.1 and 2, on the other hand, submits that the revisional order of the Consolidation Commissioner is perfectly legal and valid and needs no interference. It is submitted that even though the opposite parties themselves did not file any objection case before the Consolidation Officer, the petitioner having claimed exclusive right in respect of part of plot No.594 in his objection case, the Consolidation Officer was quite justified in giving a finding in favour of the present opposite party Nos.1 and 2 while considering the claim of exclusive right of the petitioner over the same. 8.There was admitted partition between the three brothers, Goura, Deba and Nityananda of the entire joint family properties including the disputed plot Nos.594 and 595. It is claimed by the petitioner that in the partition suit filed by Nityananda only Nityananda’s share was separated but Goura and Deba continued to remain joint. It is also alternatively argued that even assuming that Deba’s share was separated, there was subsequent reunion between Deba and Goura. It is claimed by the petitioner that in the partition suit filed by Nityananda only Nityananda’s share was separated but Goura and Deba continued to remain joint. It is also alternatively argued that even assuming that Deba’s share was separated, there was subsequent reunion between Deba and Goura. The claim of jointness of Goura and Deba is falsified from the admitted compromise decree passed in Civil Suit No.667/1931-32, copy whereof has been filed as Annexure-A to the counter affidavit of opposite party Nos.1 and 2. The said compromise decree reveals that out of the total family properties involved in the suit, Nityananda, the father of opposite party Nos.1 and 2 got two acres, Goura, the father of the petitioner and grand father of opposite party Nos.3 and 4, got Ac.2.28 decimals and Deba (defendant No.3 in the suit) got Ac.0.74 decimal. The compromise decree also reveals that Nityananda got Ac.0.03 2/3 decimal out of Ac.0.11 decimal of Plot No.594 and Ac.0.01 1/3 decimal out of Ac.0.04 of Plot 595. Similarly, Deba got an equal extent from plot Nos.594 and 595. The rest from both the plots was allotted in favour of Goura. That is to say, Goura also received an equal extent with Nityananda and Deba each from Plot Nos.594 and 595. The decree is a clear proof that all the three brothers were completely separated by virtue of the partition decree. Therefore, the petitioner’s claim that Deba continued to remain joint with Goura is not correct. There is also no allegation or proof that subsequent to the partition Deba reunited with Goura. It is trite that to constitute a reunion, there must be an intention of the parties to reunite in estate and interest. Hon’ble Supreme Court in AIR 1962 SC 287 ; Bagwan Dayal v. Reoti Devi has pointed out that it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status. Such an agreement may be express or may be implied from the conduct of the parties. The conduct must be of an incontrovertible character and the burden lies heavily on a party who asserts reunion. There is nothing on record indicative of an agreement, express or implied, between Deba and Goura to reunite. Such an agreement may be express or may be implied from the conduct of the parties. The conduct must be of an incontrovertible character and the burden lies heavily on a party who asserts reunion. There is nothing on record indicative of an agreement, express or implied, between Deba and Goura to reunite. Therefore, it must be held that after partition Deba continued to remain separate till his death. 9.With regard to the death of Deba, while the petitioner asserts that it occurred prior to 1943-44, the stand of opposite party Nos.1 and 2 is that it occurred after 1952. Opp.party Nos.1 and 2 have produced certified copy of the relevant entry made in the death register maintained in the concerned police station for the years 1952-53 as Annexure-B to their counter affidavit, which reveals that Deba die don 21.08.1953. The correctness of Ext.B is not challenged by the learned counsel for the petitioner. As against Ext.B, there is no acceptable contrary evidence on record that Deba died at any time prior to 1943-44 as claimed by the petitioner. Therefore relying on Ext.B, the revisional authority has rightly held that Deba died after 1952. 10.The registered sale deed of 1952 purportedly executed by Deba has not seen the light of the day and it was not pressed into service by Nityananda or opposite party Nos.1 and 2 at any point of time or during the year 1975 settlement. Opposite party Nos.1 and 2 also did not file any objection case before the Consolidation Officer on the basis of the sale of the disputed land by Deba in favour of their father Nityananda. Although, it was claimed by them at the appellate stage, while producing the certified copy of the sale deed stating that the original was lost in fire accident, the same cannot be accepted because of want of detail particulars as to when and how and where the fire accident took place. Admittedly, Deba was a literate man and he used to put his signature whenever necessary. However, there is no explanation as to why instead of putting his signature in the sale deed of 1952 he preferred to put his LTI. This is a very very suspicious circumstance regarding execution of the sale deed by Deba. There is no other evidence with regard to execution of the sale deed by Deba. However, there is no explanation as to why instead of putting his signature in the sale deed of 1952 he preferred to put his LTI. This is a very very suspicious circumstance regarding execution of the sale deed by Deba. There is no other evidence with regard to execution of the sale deed by Deba. The reasoning given by the revisional Court that as because Deba was about 60 years of age he preferred to put his LTI, is a mere surmise and conjecture, without reference to any acceptable evidence or material and opposed to common sense. The reasoning is, therefore, wholly fallacious and cannot be accepted. The validity and correctness of the sale deed of 1952 is doubtful and hence it cannot be accepted that Deba had sold his share in the disputed land to Nityananda. 11.Admittedly, Deba died issueless being separate from his two brothers prior to coming into force of the Hindu Succession Act, and therefore, his interest in the suit plot Nos.594 and 595 shall devolve by way of succession on his legal heirs and not by survivorship. According to the Mitakshara law of inheritance, his brother(s) is entitled to succeed before a brother’s son. If at the time of Deba’s death any of his two brothers was alive, he would succeed to the exclusion of sons of brothers. In case neither of his brothers was alive at the time of his death then, sons of his brothers would succeed and take the property per capita. It is, therefore, necessary that the matter should be remanded to the original Court, i.e., Consolidation Officer to take evidence and record a finding on this aspect so as to find out if any of the brother or brothers or brother’s son are to succeed to his share in plot Nos.594 and 595. Even though opposite party Nos.1 and 2 did not by themselves file any objection case before the Consolidation Officer, while considering whether part or whole of plot No.594 was to be recorded in favour of the petitioner, as per his objection case, it was necessary for the Consolidation Officer to go into the division of the property in the partition and the consequential succession to the share of Deba in the said plots. Therefore, if opposite party Nos.1 and 2 have any interest in the disputed plots they cannot be divested of the same merely because they have failed to file their objection case. They are entitled to raise all such claims while opposing the claim of the petitioner. 12.In the light of the discussions made above, I set aside the original, appellate and revisional orders under Annexure-1, 2 and 3 and remit the matter back to the Consolidation Officer, Anandapur to consider succession to the share of Deba in the disputed plot Nos.594 and 595 by taking evidence from the parties and complete the whole exercise within a period of three months from the date of communication of this order. It is made clear that interest, if any, of Indramani having been sold to the petitioner in the year 1970 and opposite party Nos.3 and 4 having not raised any claim over the disputed plots they must be held to have no share or interest in the same. The writ application is accordingly disposed of. No costs. Application disposed of.