B.K. Behera, J.
1. After succeeding in part in a suit for partition instituted by her as the plaintiff with a decree in her favour in respect of the properties other than those set out in item No. 2 of the schedule (for short, the disputed land) appended to the plaint which were held by the trial Court to be the self-acquired properties of the respondent Nos. 1 and 2 (defendant Nos. 1 and 2) and impartible in nature, the appellant challenges the aforesaid finding recorded in favour of these two respondents. Admittedly, the appellant is the daughter and the respondent Nos. 1 and 2 are the sons of the deceased Nityananda Sabat who had acquired the disputed lands from Rani Ratnamala Patamahndevi of Sanokhemedi being the Puo Brahmin of and having been brought up as the foster son by the Zamindar of Sanokhemedi, by virtue of a deed of gift in or about 1927 and had remained in possession thereof until his death in 1962. The Inam lands of which Nityananda was in possession continued to be in possession of the appellant and her brothers who were intermediaries. The disputed lands vested in the State under the Orissa Estates Abolition Act. Neither the appellant nor any of the respondents had applied under Section 8-A (1) of that Act for settlement of those lands in their favour under Section 7 (1) (a) of the said Act. After the lands vested in the State Government under Section 8-A (3) of that Act, the right to make any claim stood extinguished. This position has not been disputed at the Bar at the hearing of this appeal. By the time the Orissa Land Reforms Act (for short, 'the Act') came into force the appellant and her brothers had ceased to be co-sharers in respect of the said lands. The respondent No. 2, who was in personal cultivation of the disputed lands as a temporary lessee, made an application for recognising him as a raiyat under Section 4 (1) (h) of the Act and this was allowed in November, 1978, as per Ext. B, in O. L. R. Case number 178 of 1066 by the appropriate authority and he was declared to be a raiyat under Section -I (2) of the Act. As required under Section 4 (3) of the Act he was directed to pay the premium of Rupees 2,297.35 paise and on payment of the premium, as per 'Ext. C, he was declared to be an occupancy raiyat under the State Government in respect of the said properties. His case was that this had jointly been acquired by him and his brother (respondent No. 1) who had also contributed a part of the premium. The defendant No. 4, the son of the appellant, made an application on behalf of the appellant to get her name included along with the respondent No. 2 in the settlement records, but this application was rejected, as per Ext. K, by the Revenue Officer on the ground that he had no power to review. The settlement of these properties on the respondent No. 2, thus became final and conclusive. While the case of the appellant was that the entire suit lands were the joint properties of the parties, the case of the respondent Nos. 1 and 2 was that they were not and according to them, the disputed lands were their self acquisitions and were not partible. Both the parties led oral and documentary evidence. The respondent No. 3 who had figured as the defendant No. 3 in the suit, was an alienee in respect of some lands transferred in his favour by his son-in-law (respondent No. 2).
2. The learnened Subordinate Judge accepted the case of the appellant and decreed her suit for partition in respect of the ancestral properties only. The case of the respondent Nos. 1 and 2 in respect of the disputed lands was accepted. The learned counsel for both the parties have submitted that the appeal has been preferred by the respondent Nos. 1 and 2 against the decree in part passed in favour of the appellant.
3. Mr. Misra, appearing for the appellant, has submitted that on the facts and in the circumstances of the case it would not be said that the disputed lands were the self-acquisitions of the respondent Nos. 1 and 2 and that the settlement of the said lands with the respondent No. 2 under the Act would only indicate that he had held the lands in trust and had acquired the same not out of his own income, but out of the joint family income and thus the lands could not be said to be the self-acquired properties of the respondent Nos. 1 and 2. Mr. Patnaik for the respondent Nos. 1 and 2 has submitted that these contentions raised on behalf of the appellant cannot prevail and the findings recorded by the Court below in favour of the respondent Nos. 1 and 2 are correct and cannot be assailed.
4. The circumstances in which the disputed lands vested in the State after no claim was made thereon either by the appellant or by any of the respondents have been set out above. After the disputed lands vested in the State, on an application being made by the respondent No. 2, the said lands were settled with him by the State Government being the exclusive owner thereof on payment of the premium fixed by the State Government and the respondent No. 2 was declared to be an occupancy raiyat under the Act. The appellant, through her son, had unsuccessfully moved the revenue authorities for inclusion of her name in the settlement records in respect of the same lands. The contention raised in this Court that the lands had been acquired by the respondent No. 2 out of the joint family nucleus had not even been pleaded by the appellant and there was no evidence in support of this stand. There was the distinct and definite evidence of the respondent No. 2 (D. W. 1) that he and his brother had jointly acquired the disputed lands from the State Government on payment of Salami and Patta had been granted in his name. It was also in his evidence that he had paid rent for the said lands as per the rent receipts (Ext. D series).
5. The appellant had not examined herself as a witness at the trial. Her husband as P. W. 1 had admitted in his cross examination that the appellant had not applied to the Collector under the Orissa Estates Abolition Act to settle the lands in her name had testified:
'The defendants 1 and 2 might have paid premium to settle the lands in their names. I do not know the said amount. My wife has not contributed any amount towards that salami or premium.'
The trial Court correctly came to the conclusion that the lands in question had been acquired by the respondent Nos. 1 and 2.
6. If a joint family is possessed of nucleus suffiicent to make the impugned acquisition, a presumption may arise that the acquisition standing in the name of the person in the management of the family is a family acquisition. Before this presumption is drawn, there must be a joint family, the joint family must be in possession of nucleus sufficient to make the acquisition and the acquisition must have been made by the person in charge of the management of the family. No case had been made out by the appellant that she and her brothers were possessed of joint family nucleus sufficient for the acquisition of the lands it question. (There is no presumption that a Hindu family merely because it is joint, possesses any joint property. Law does not prohibit a member even of a joint family from acquiring any property for his own benefit. The burden of proving that any particular property is joint primarily rests on the party who alleges the same. In the absence of any averment in the plaint about the existence of the joint family nucleus and in the absence of any proof in this regard, the contention raised by the learned counsel for the appellant for the first time in this court cannot prevail.
7. On the principles laid down in AIR 1969 SC 843 Pierce Leslie and Co. Ltd. v. Miss Violet Ouchterlong Wapshare; AIR 1973 SC 893 Kailash Rai v. Jai Jai Ram; AIR 1958 Pat 630 (FB) Mahant Sukhdeo v. Kashi Prasad Tiwari and AIR 1975 Pat 179 Hussaini Mistri v. Zahiruddin, it has been contended by the learned counsel for the appellant that the respondent No. 2 held the disputed lands in trust as envisaged in Section 90 of the Trusts Act and therefore, the lands were liable to be partitioned.
8. It had been held in AIR 1969 SC 843 (Supra) that any person bound in a fiduciary character to protect the interests of another person cannot put himself in a position where his interest and duty conflict. If by availing himself of his fiduciary character or by entering into any dealings under the circumstances in which his interests are or may be adverse to those of such other person, he gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained. It has been laid down in AIR 1973 SC 893 (Supra) that possession of one co-sharer is possession both on his behalf as well as on behalf of other co-sharers, unless ouster is pleaded and established. As has been observed in AIR 1958 Patna 630 (FB) (supra) by virtue of Section 90 of the Trust Act, the possession of a co-owner would enure to the benefit of other co-owners wherever the co-owner, by virtue . of his possession as such, has gained any advantage in derogation of the interests of the other co-owners. It has been held in AIR 1975 Pat 175 (supra) in the circumstances of that case, that the lease in favour of the defendant co-sharer enures to the benefit of the plaintiff co- sharer also and the provisions of Section 90 of the Trusts Act are applicable to the case. In the instant case, however, the lands in question fully vested in the State Government after no claim was made by any of the parties to the suit and then on the payment of premium after an application was made by the respondent No. 2 for settlement of the lands in his favour the lands in question were settled with him after which the respondents Nos. 1 and 2 remained in exclusive possession thereof and this would find support not only from the oral evidence adduced from the side of the respondents Nos. 1 and 2, but also from the documentary evidence showing payment of premium and rent. Here is not a case where taking advantage of his position as a co-owner or co-sharer, the respondent No. 2 had obtained advantage for himself to the exclusion of others and in the circumstances of the case, it could legally and appropriately be said that the two respondents had held the lands in trust also on behalf of the appellant.
9. Section 7(1)(a) of the Orissa Estates Abolition Act provides that the settlement shall be deemed to have been made by the State Government not only with the intermediary but also with all the share holders. The settlement in this case, has however, been made under the Act which has no provision similar to one mentioned above in the Orissa Estates Abolition Act. Section 4 of the Act provides that a person with whom land has been settled for agricultural purposes after the commencement the Act under a lease from a landholder or under a permanent lease from the Government shall be deemed to be a raiyat for the purposes of the Act in respect of the lands held by him. The principles laid down by this court in (1972) 38 Cut LT 827 Srinivas Sahu v. Nilamani Sahu and (1982) 53 Cut LT 600 : (AIR 1982 Orissa 261) Md. Yakub Ali v. Md. Shibli referred to by the learned counsel for the appellant, in which the effect of Section 6 of the Orissa Estates Abolition Act has been considered and it has been held that settlement in favour of one of the co-sharers enures to the benefit of the entire body of co-sharers, cannot further the case of the appellant in view of what has been stated above.
10. The learned Subordinate Judge has carefully considered the factual and legal aspects and has rightly held that the lands mentioned in item No. 2 of the schedule to the plaint were not liable to be partitioned.
11. The trial court has also held that as provided in Section 67 of the Act, the jurisdiction of the civil court to entertain any proceeding so far as it relates to any matter which any officer or other competent authority is empowered by or under the Act to decide is barred and therefore, the appellant could not challenge the legality of the settlement in favour of the respondent No. 2. In view of the findings already recorded in this judgment with regard to other factual and legal aspects, it is not necessary to go into this question.
12. It is thus found that none of the contentions raised on behalf of the appellant can prevail.
13. The appeal fails and the same is dismissed leaving the parties to bear their own costs of this appeal.
K.C. Patnaik, J.
14. I agree.