JUDGMENT : 1. Heard the learned counsel for the appellants. 2. No one turns up on behalf of the respondents in-spite of repeated calls. Hence, this appeal is heard ex-parte. 3. This appeal has been preferred by the appellants being aggrieved by the Judgment and award dated 20.08.1990 passed by the learned Subordinate Judge-I, Seraikella in Land Acquisition Case No.122 (109) of 1986 whereby and whereunder, learned court below has answered the reference made by the Land Acquisition Officer, Swarnrekha Project under Section 30 of the Land Acquisition Act and held that the petitioners have got 1/3rd share over the property and accordingly, the compensation award be paid to all the parties and also ordered that the award be prepared to the share as per the land of the parties. 4. The case of the applicants in the learned court below who are the respondents in this appeal is that the land of Khata no.224, in total 0.90 decimals, which were acquired for the Swarnrekha project has been recorded jointly in the name of Surendra Mandal- the father of the opposite party, Debendra Mandal and Suresh Mandal. Surendra Mandal, Debendra Mandal and Suresh Mandal are the three sons of Rash Bihari Mandal and they acquired the lands in question jointly from the common family fund in the name of Surendra Mandal who is the eldest brother and karta of the family. All the brothers were governed by the Mitakshara school of Hindu Law and they came in joint cultivating possession of the land and in the recent survey before filing of the application, the lands in question were recorded in the joint name of all the three brothers. Surendra Mandal died leaving behind his only son while Debendra Mandal died leaving behind his three sons who are the petitioners. The sons of Surendra Mandal and Debendra Mandal inherited the entire share of their fathers collectively and came under the joint cultivating possession and paid rent jointly. It is the case of the petitioners that there has not been any partition between the parties or their ancestors and according to the recent settlement, before filing of the objection before the land acquisition officer by the petitioners, Surendra, Debendra and Suresh each of them have got 1/3rd share but the award was made in the name of the opposite party alone although, all the parties have 1/3rd share in the property. 5. 5. The case of the opposite party-appellant on the other hand is that the applicants have no right, title or interest over the acquired property and the ancestors of the parties have separated in the year 1941 and since the partition of the ancestral property in the Seraikella Raj Darbar, they are coming in separate possession of their separate lands and the land has been purchased by Surendra Mandal in his own name after partition and the father of the opposite party came in possession over the lands and paying rent for that but in the revisional settlement in the year 1961, the land in question was wrongly recorded jointly in the name of Surendra Nath Mandal, Debendra Nath Mandal and Suresh Mandal. It was also pleaded that Surendra Mandal was never the karta of the family and Debendra and Suresh have also acquired property separately unconnected with Surendra Mandal. 6. The learned trial court framed the following questions to be considered :- “Whether the parties have already been partitioned or all the parties have got interest and title over the land in question?” 7. In support of their case, the applicant-respondents altogether examined four witnesses. P.W.1- Manoranjan Sahu has stated that his grandfather namely Khetro Mohan sold the land in question to Surendra, Suresh and Debendra Mandal by registered sale deed. Surendra was the eldest brother. Surendra was the karta of his joint family hence, the sale deed was prepared in the name of eldest brother but the consideration amount was paid from the corpus of the Hindu undivided family and all the three brothers together came in possession of the said land after the said purchase. In his cross-examination, P.W.1 has stated that his grandfather negotiated the sell. It is apparent from the deposition of P.W.1 that he had not any personal knowledge about the sale made by his grandfather to the father of the opposite party-appellant. 8. P.W.2- Prakhar Behera has deposed that all the parties are possessing the land jointly and it is their ancestral property. No partition has ever taken place. The father of Mihir Mandal was having separate mess. 9. P.W.3- Gazilal Murmu has stated that the land is not the joint possession of both the parties. Surendra Mandal is the eldest brother of the joint family and he was the karta. No partition has ever taken place. The father of Mihir Mandal was having separate mess. 9. P.W.3- Gazilal Murmu has stated that the land is not the joint possession of both the parties. Surendra Mandal is the eldest brother of the joint family and he was the karta. In the last month of February, a meeting was convened for partition but that could not be done. He proved land revenue receipts. In his cross-examination, he has stated that Surendra Mandal, Debendra Mandal and Suresh Mandal are having separate mess. 10. P.W.4- Bankim Mandal is the petitioner himself. He has deposed that the land in question was their lands which were purchased in the name of Surendra Mandal for the purpose of joint family and after purchase, Surendra, Devendra and Suresh were jointly possessing the same till the acquisition of the said land by the owner. In the recent settlement, the land was recorded in the name of his father and two uncles. In his cross-examination, he has stated that they are cultivating the land separately but there was no partition. They were living at separate mess. Suresh Mandal gifted a portion of his land to his daughter and P.W.4 purchased some land from Suresh also. He sold a portion of the land in favour of Kashinath Mahto vide the sale deed marked Ext. A. 11. Besides the oral testimony, the petitioners proved the following documents, three rent receipts which has been marked Ext. 1 to Ext. 1/B, notice in Case No.53/85-86 which has been marked Ext. 2, certified copy of the order sheets which has been marked Ext.3 to 3/a and certified copy of khatiyan which has been marked Ext. 4 to 4/a. Perusal of Ext. 3 reveals that in the year 01.07.1959 consequent upon Surendra Mandal admitting that he is in joint possession of the land of Khata No.211, the said land was ordered to be jointly recorded in the name of Debendra Mandal and others and Surendra Mandal and others. 12. From the side of opposite party, O.P.W.1- Bibhuti Behra has stated that Surendra Mandal, Debendra Mandal and Suresh Mandal were living separately since long. In his cross-examination he has stated that the partition deed was prepared 40 years before adducing evidence in the court on 07.04.1989 between them and he has seen the same. 13. 12. From the side of opposite party, O.P.W.1- Bibhuti Behra has stated that Surendra Mandal, Debendra Mandal and Suresh Mandal were living separately since long. In his cross-examination he has stated that the partition deed was prepared 40 years before adducing evidence in the court on 07.04.1989 between them and he has seen the same. 13. O.P.W.2- Mona Ram Tudu has stated about the families of both the parties. 14. O.P.W.3- Mihir Chandra Mandal, the serial number of witness in whose deposition has wrongly been mentioned as O.P.W.2 instead of being mentioned as O.P.W. 3; has stated that his father purchased the acquired land in 1943 by registered sale deed. His father was one of the three brothers- Surendra, Debendra and Suresh Mandal. Prior to the purchase of the said land, the three brothers were living separately. In 1941 partition took place in Raj Darbar and documents were prepared. After purchase of the land, the land was mutated in the name of his father and was paying land revenue. After death of his father, he was paying his land revenue of his possession of the land. The brothers of his father were never in possession of the said land. Suresh Mandal has given a portion of his land to his daughter. The sons of Debendra Mandal also sold some of the said land. In the survey, the land was wrongly recorded in the name of the said three brothers. He proved the land revenue receipts which were marked Ext. B to B/12. The partition document was made in the year 1943 which was in the handwriting of Suresh Chandra Mandal, which was marked Ext. C. The sale deed by which his father purchased the land, which has subsequently been acquired for the Swarnarekha project; was marked Ext. A/1. He further stated that the petitioner did not raise any objection when objections were invited by the Land Acquisition Officer before the award was made. On the other hand the petitioners submitted an affidavit to the effect that they have no objection for the award being made solely on the name of opposite party-appellant. In his cross-examination, he has stated that he was not born at the time of partition which took place between his father and brothers and he cannot say which plot was allotted to which brother. 15. In his cross-examination, he has stated that he was not born at the time of partition which took place between his father and brothers and he cannot say which plot was allotted to which brother. 15. O.P.W.4- Nalinee Kumar Jyotishi has stated that Khetramohan Sahu sold the land to Surendra Nath Mandal. Prior to the said purchase, Surendra was staying separately from his two brothers and Surendra came in possession of the said land alone. 16. Besides the oral testimony, the opposite party also proved the documents which has been marked Ext. A to C/1 as already mentioned in the forgoing paragraphs of this judgment. 17. Learned court below observed that the onus is upon the party to claim partition and the presumption goes regarding the unity of title and possession of Hindu family. The trial court did not accept Ext. C to be the proof of partition of the joint family property. In respect of Ext. A, it was observed by the learned trial court that the said sale deed do not prove that there was any partition as in the said sale deed itself, it has been mentioned that the property is a joint property but in separate possession of the vendors of the sale deed and passed the award apportionment of 1/3rd of the compensation amount to descendants of each of the branches of Surendra Mandal, Debendra Mandal and Suresh Mandal. 18. Mr. Shailendra Kumar Singh, learned counsel for the appellants submits that the learned court below could not properly appreciate the evidence in the record and the learned court below ought to have held that the ancestors of the parties have separated in the year 1941 and the father of the appellants purchased the acquired property after partition in his own name and came in execution possession of the same. It is next submitted by Mr. Singh that it is the admitted case of the parties that the parties were residing in separate mess and were cultivating separate lands since long and Ext. It is next submitted by Mr. Singh that it is the admitted case of the parties that the parties were residing in separate mess and were cultivating separate lands since long and Ext. A/1 which is the sale deed categorically shows that the land in question was purchased by Surendra Mandal exclusively and there is absolutely no recital in the said sale deed regarding land having been purchased for the purpose of the joint Hindu family nor there is any reference in the sale deed that the said sale deed is purchased by the said Surendra Mandal on behalf of the joint family property rather the vendor has categorically stated that the said land is being purchased exclusively by Surendra Mandal. It is then submitted that the learned court below ought to have held that the title in respect of said acquired land has been acquired by Surendra Mandal exclusively and in his own individual capacity, hence the acquired property cannot be termed as a joint family property and also that an entry in the revenue records cannot obliterate the title acquired by the father of the opposite party-appellant by the said explosive purchase of the land by him. It is then submitted by Mr. Singh that the learned court below erred by misdirecting itself by going to determine whether the partition by meats and bounds has been acquired by the parties and the same is immaterial as in view of the undisputed fact which is also corroborated by Ext. A/1 that the acquired land was purchased by Surendra Mandal from the vendor Khetramohan Sahu exclusively. It is then submitted that the learned trial court erred by losing sight of the fact that the unchallenged testimony of the O.P.W.3 the effect that the petitioner and others submitted affidavit expressing their no objection for preparation of the award exclusively in the name of the opposite party-appellant. Hence, it is submitted that the impugned award be set aside and the award be modified by directing payment of compensation amount to the opposite party exclusively. 19. Having heard the submissions made at the Bar and after going through the materials in the record, the only point for determination that crop up in this appeal for consideration is :- “Whether the acquired property was the exclusive property of the father of the opposite party namely Surendra Mandal?” 20. 19. Having heard the submissions made at the Bar and after going through the materials in the record, the only point for determination that crop up in this appeal for consideration is :- “Whether the acquired property was the exclusive property of the father of the opposite party namely Surendra Mandal?” 20. After going through the recitals of the Ext. A/1, which is the sale deed executed by Khetramohan Sahu in favour of Surendra Mandal, this Court has no hesitation in holding that the same was exclusively acquired by Surendra Mandal in his own individual capacity and there is neither any reference of the suit land being purchased on behalf of the joint family property or in capacity of karta of the joint family property. From the evidence adduced by the rival parties, it is crystal clear that the three brothers were having separate mess since before the purchase of the said property by the father of the opposite party-appellant and even before the purchase of the joint property the said brothers of the father of the opposite party-appellant, were having separate cultivation. The petitioners could not lead any evidence to show that if at all any corpus of the joint family property existed at the time of the said purchase of the acquired land by the father of the opposite party-appellant. The evidence in the record indisputably suggest that the brothers of the father of the opposite party-appellant should defects and portions of their land in their respective position to different persons without involving the father of the opposite party-appellant. There is absolutely no challenge to the testimony of the O.P.W.3 that the petitioner and others did not raise any objections for the award of the entire compensation amount in the name of the opposite party-appellant and they even submitted affidavits in this respect to the Land Acquisition Officer. 21. It is trite law that the general principle is that every Hindu Family is presumed to be joint, unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. 21. It is trite law that the general principle is that every Hindu Family is presumed to be joint, unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. In the cases of old transactions, where 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 persons who asserts that there was a partition, it is permissible to fill-up the gaps more readily by reasonable inferences than in a case where evidence is not obliterated by passage of time. This principle has been expounded by Hon’ble Supreme Court of India in the case of Bhagwan Dayal (since deceased) thorugh LRs. vs. Most. Reoti Devi (deceased through LR) reported in AIR 1962 SC 287 , which has profitably been referred to by the Hon’ble Patna High Court in the case of Arjun Mahto & Ors. vs. Monda Mahatain & Ors. reported in AIR 1971 Pat. 215 , wherein, the division bench of Hon’ble Patna High Court also relying upon the judgment in the case of Budha Mal vs. Bhagwan Das reported in (1891) ILR 18 Cal 302 (PC) has observed that though in that case, no formal document of partition could be produced, still the partition can be proved by the intention of the parties, manifest by their subsequent conduct by their sole and independent enjoyment of the property. 22. Under such circumstances, on the basis of the recitals of the sale deed marked exhibit A/1, the undisputed facts that the father of the opposite party-appellant and his brothers were having separate mess and separate cultivation even before the purchase of the said land by the father of the opposite party-appellant as well as the fact that the brothers of the father of the opposite party-appellant have sold portion of the land in their possession without involving the father of the opposite party-appellant, this Court has no hesitation in holding that the acquired property was the own exclusive property of Surendra Mandal- the father of the opposite party-appellant. Hence, the opposite party is entitled to the entire compensation amount in respect of acquisition of the said land. The sole point for determination is answered accordingly. 23. In view of the discussions made above, the impugned judgment and award is set aside. 24. Hence, the opposite party is entitled to the entire compensation amount in respect of acquisition of the said land. The sole point for determination is answered accordingly. 23. In view of the discussions made above, the impugned judgment and award is set aside. 24. Let an award be prepared directing payment of the entire compensation amount in respect of the acquisition of the land in question to the opposite party-appellant. 25. In the result, this appeal is allowed ex parte but in the circumstances without any costs. 26. Let the Lower Court Record be sent back to the learned court below along with a copy of this Judgment forthwith.