Ray, J.

1. This is a Plaintiffs second appeal against the reversing judgment of the Subordinate Judge, Bhubaneswar. The Plaintiff filed a suit for partition claiming his eight-anna share in the properties enumerated in schedule Ka to his plaint, alleging that the said properties are the joint ancestral properties of himself and the Defendants who belong to one family.

2. The relationship of the Plaintiff and the Defendants will be apparent from the genealogy given herein below:

ISWAR

Uchhab Bhagabat

Hadu (Pltff) Rahash (D-2) Anant-widow (Sambari)

Jaganath (D-l)

3. The case of the Defendants is that there had been a partition by metes and bounds between the two branches during the lifetime of Uchhab and Bhagabat, both of whom had died long prior to the current settlement record of rights which were prepared in the year 1932. Though they admit that the suit properties once constituted the joint family properties of the parties, yet they contend that they are no longer liable to partition, in view of a completed partition having earlier taken place amicably. The sole question therefore for decision is whether there was a previous completed partition as claimed by the Defendants.

4. The admitted facts in the case are that Uchhab and Bhagabat died before the Current Settlement record of rights were prepared in the year 1932, when the Plaintiff was about three years old, and Defendant-2 was about 25 to 26 years of age. Out of the total suit-lands of 3.46 decimals, 1.33 acres in Mouza Deuli under Khata Nos. 67, 96 and 79 and the rest 2.13 acres are situate in Mouza. Adabandha comprising in two plots, 185 and 186 appertaining to Khata No. 103. Khata No. 67 comprising plot No. 279 with an area of three decimals is the homestead of the parties, recorded jointly in the names of the Plaintiff and some of the Defendants, the second branch of the family. Khata No. 96 comprises six plots and has been recorded solely in the name of the Defendants representing the second branch. It is significant to note that in respect of each such plot in the Khata, the Plaintiff is shown to own land on its adjoining boundary, though in some cases on one side and in others on two sides of the plots. These facts have been proved from the record of rights filed in the case which are Exts. A, B, E and F. So far as Khata No. 79 is concerned, it was recorded in the name of the Plaintiff alone comprising a total area of 0.69 decimals. Out of this plot, an area of 0.22 decimals was carved out as a separate plot bearing No. 14 and was amalgamated with Khata. No. 96, thereby augmenting the area of plot No. 96 from 1.08 to 1.30 acres and the entire Khata was mutated in the name of Defendants on 14-11-1934.

5. With regard to Anabandha lands which have been jointly recorded, the learned Munsif finds that the parties are possessing different portions separately. The learned Munsif came to the conclusion that there was no partition by metes and bounds before 1932 and as the parties admit that such partition by metes and bounds had never taken place, after the death of Uchhab and Bhagabat, he negatived the defence case of prior partition. In arriving at this finding of his, he relied upon certain facts and circumstances which are collected herein below:

(a) Some of the suit-lands are jointly recorded in the record of rights;

(b) No inference of partition can be drawn from the separate recording of the names of the Defendants in respect of Khata No. 96 comprising six plots with an area of 1. 08 acres in village Deuli; and

(c) In 1932 when the record-of-rights were prepared, the Plaintiff was a minor aged about three years and the Defendant-2 was a major aged about 25 years, and as such, it must be taken that Defendant.2 was looking after the settlement operations.

The learned Munsif, however, overlooked two crucial features of the case. In 1932 the Plaintiff was solely recorded in respect of Khata No. 79 with a total area of 0.69 decimals when he was only three years old. On 14-11-1934, 22 decimals out of this Khata was carved out comprising plot No. 14 and was amalgamated with Khata No. 96 and the entire increased area of 1.30 acres was mutated in the name of the Defendants. The mutation is a judicial proceeding and it must be presumed that somebody other than the Defendants in whose name the mutation was made, must have represented the Plaintiff in 1934 when he was aged about five years or so. This leads to the conclusion that the Plaintiffs mother was then alive and was acting on behalf of the Plaintiff. In dealing with the alternative plea of the Defendants that assuming that there was no previous partition, the Plaintiffs suit must still fail as he has failed to bring into the hotchpot the 0.47 decimals in Khata No. 79 the Munsif finds that the Plaintiff acquired this 0.47 decimals as his self acquired property. Such a finding obviously cannot hold water, because in 1932 the Plaintiff was a minor aged about three years, and be could not have acquired any property unless he acted through a guardian. Therefore, the finding of the learned Munsif that the Plaintiffs interest was being looked after by his mother during the settlement operations, is more reasonable. The mutation of the names of the Defendants in the year 1934 is another circumstance which lends support to the case of previous partition having taken place prior to 1932 during the lifetime of Uchhab and Bhagabat when the Plaintiffs interest was being watched by his mother. The other circumstance which has been lost sight of by the trial Court is the recording of the Plaintiffs name as a boundary tenant in respect of all the plots in Khata No. 96 standing solely in the name of the Defendants. This shows that in respect of every plot in Khata No. 96 belonging to the Defendants, the Plaintiff has some land on one or more of its boundaries. There is no evidence, nor any suggestion that the Plaintiff who was then a minor had any independent source of income or that his mother was having separate earnings so that properties could be acquired for the Plaintiff. This circumstance which strongly militates against the theory of jointness has not been explained by the Plaintiff, nor did the learned Munsif give due weight to this aspect of the matter. On the contrary this feature lends considerable support to the theory of previous partition.

6. The other circumstance on which the Munsif relied for his finding of jointness, is the inequality of share in respect of the homestead land From the fact that the Plaintiff is in occupation of two rooms while the Defendants are in possession of four rooms, he jumped to the conclusion that the division, if any, being unequal, disproves prior partition. This conclusion of his is based upon a conjectural hypothesis that all the rooms are of equal size, of which there is no iota of evidence on record. The learned appellate Court, on the contrary, argues that in the absence of any evidence that the four rooms occupied by the Defendants comprise more area of the homestead, than the two rooms in occupation of the Plaintiff, the inference of inequality" has no basis.

7. The lower appellate Court has correctly placed the onus of proof of partition on the Defendants and has proceeded to deal with all the circumstances appearing in the evidence, and after proper appreciation of the documentary and oral evidence on record, reversed the finding of the trial Court holding that there was no completed previous partition. He appears to have kept in view the general principles of Hindu Law that the presumption of jointness of a Hindu family is a rebuttable one which can be displaced by direct evidence or by course of conduct and that in cases of old transactions of which no contemporaneous documents are maintained and where most of the active participants in the transaction have passed away, the burden still remains on the person who asserts that there was a prior partition. It is permissible to fill up the gaps in the evidence more readily by reasonable inferences from the circumstances appearing in the case, than in a case where the evidence is not obliterated or lost by passage of time. It is the well-known rule of Hindu Law that the presumption of jointness is stronger in the case of brothers than in the case of cousins and farther you go in the foundation of family the presumption becomes weaker and weaker. In the instant case, as would appear from the genealogy given earlier, the presumption has become attenuated. The evidence shows that the parties have been in possession and are exercising rights of ownership over several parcels of land since very long time. From this fact, it is permissible for a Court to presume that the lands have already been divided and the rights of parties defined is such manner as to preclude their being repartitioned. Authority for this is available in Mukharam v. Chandradeep : A.I.R. 1936 Pat. 63 [LQ/PatHC/1935/140] .

8. Thus, the finding of fact arrived at by the lower appellate Court is a reasonable one which has been arrived at after thorough consideration of all the evidence on record and proper inferences drawn from proved facts and circumstances appearing in the case, and as such, it cannot be interfered with in second appeal.

In the result, there is no merit in this appeal which is accordingly dismissed with costs.