Judgement JUDGEMENT:-TheappellantshavinglosthandsdownintheCourtsbelowhaveprojectedtheSecondappealagainsttheconcurrentfindingsoffactandlaw.Theplaintiffsaretheappellants. 2. The plaintiffs case, in short, is that Baneswar and Fuleswar, while living jointly, had purchased two parcels of land jointly - one in Mouza Shymbari and another in Mouza Dohi and had joint possession over the purchased land. After Baneswars death his son Asar Deka separated from his (Asars) uncle Fuleswar in the year 1935. There was a partition, in consequence whereof the parcel of land in Dohi Mouza fell in the share of Fuleswar (father of the present plaintiff) whereas Asar and his brothers got the land in Shymbari Mouza. The plaintiffs are the sons of Fuleswar and the defendants Nos. 1 to 3 are the sons of late Asar Deka. The suit land is in Dohi Mouza and measures 10 Bighas 1 Katha and 15 Lechas. According to the plaintiffs, the suit land had fallen in the share of Fuleswar who was in possession thereof since 1935. After Fuleswars death his sons (the present plaintiffs) paid land revenue in respect of the suit land. According to the plaintiffs, the suit land which had been mutated in the name of Baneswar, the elder brother of Fuleswar and the Karta of the family, continued to remain in ha name and notwithstanding the partition in the year 1935 it had been mutated in the name of Baneswars son, after the death of Baneswar and thereafter in the name of Hem Chandra, the defendant No. 1, after the death of Asar. As there had been no dispute between them, the plaintiffs in spite of the knowledge of the mutation in favour of Asar and Hem Chandra did not raise any objection to the mutation. However, on 7-4-1969, the defendant No. 1 sold a portion of the suit land (fully described in Schedule B of the plaint) to defendant No. 4. At this the plaintiffs protested. The defendants Nos. 1 to 3 denied the title of the plaintiffs in the suit land and hence the suit. Inter alia the plaintiffs prayed for permanent injunction restraining the defendants from transferring and/or occupying the suit land. Later, the plaint was amended and a special prayer was made on 28-1-1970 for khas possession of the land in suit. 3. The defendants case, in short, is that late Baneswar and Fuleswar were separated as far back as 50 years and thereafter that Baneswar was the true owner of the land he had mutation. Later, the plaint was amended and a special prayer was made on 28-1-1970 for khas possession of the land in suit. 3. The defendants case, in short, is that late Baneswar and Fuleswar were separated as far back as 50 years and thereafter that Baneswar was the true owner of the land he had mutation. Baneswars son late Asars name was mutated as he had title and possession over the land. In due course, the name of the defendant No. 1 Hem Chandra was mutated, being the heir and successor of late Asar. According to the defendants they were in possession and the defendant Hem Chandra had the right to dispose of the property and the disposal in favour of defendant No. 4, Dambrudhar was a valid transaction. 4. In fact, the crucial question before the Court was as to whether the suit land was the paternal property of the plaintiffs or the defendants and as to which of the parties was in physical possession of the suit land. As many as 7 issues were struck by the trial Court and they were all disposed of in favour of the defendants. The trial Court gave much importance to Issue No. 6, the crucial question, as to whether the suit land is the paternal property of defendants Nos. 1 to 3 and as to whether they were in possession of the same. Thereafter, the trial Court considered as to whether the defendant No. 1 had the authority to sell the suit land. Many other ancillary issues were determined, which are not at all pertinent to the question involved in the second appeal. However, it appears clear that the trial Court while determining the issue in question considered the evidence, oral as well as documentary, and their effect. The trial Court dismissed the suit and an appeal was taken. The appellate Court considered the merits of the case in details and did not find any reason to disturb the findings arrived at by the trial Court. Hence this appeal. 5. Mr. S.N. Medhi, the learned counsel appearing on behalf of the appellants presented before me the points for argument. Five points were taken by Mr. Medhi. However, during the course of the argument, the learned counsel, in fitness of things, did not at all press the points Nos. II, III and IV. However, the learned counsel has strenuously urged the 5th point. Five points were taken by Mr. Medhi. However, during the course of the argument, the learned counsel, in fitness of things, did not at all press the points Nos. II, III and IV. However, the learned counsel has strenuously urged the 5th point. So far as the first point is concerned Mr. Medhi has very clearly conceded that any decision in his favour on the said point may not come to his held or assistance if the other point urged by him is not accepted. I set out hereinbelow the points which were sought to be urged before me :- "(I) Defendants having failed to prove by evidence on record that there was partition between Baneswar and Phuleswar on a specific date and there being no evidence on the point as regards time from which the defendants 1 to 3 came to possess the suit land as of their own right by virtue of being heirs of late Baneswar, the learned courts below erred in law in holding that the suit was barred by limitation. (II) P.W. 2 Fuzulu having stated in his evidence that Phuleswar purchased the suit land from his father by 6 Silver coins and under the law no document being required to be executed for such sale, the learned courts below were not justified in holding that the story of purchase of the suit land by Baneswar and Phuleswar jointly was not believable at all. (III) There being evidence on record that Baneswar being the elder brother and Karta of the family the suit land purchased by the two brothers was mutated in his name, the learned courts below, on a proper consideration of the evidence on record, should have held that the suit land fell in the share of Phuleswar. (IV) There being evidence on record to show that the partition took place between Phuleswar and Ashar, father of defendants 1 to 3, by way of family arrangement, the learned courts below should have held that there was a partition and that the plaintiffs were in possession of the suit land since the time of their father for more than 35 years. (V) The learned courts below failed to take into consideration the Exts. 1 to 1(7), revenue receipts, produced by the plaintiffs and erred in law in dismissing the plaintiffs suit." 6. (V) The learned courts below failed to take into consideration the Exts. 1 to 1(7), revenue receipts, produced by the plaintiffs and erred in law in dismissing the plaintiffs suit." 6. The contention of the learned counsel that the courts below have failed to take into consideration Exts. 1 to 1(7), the revenue receipts, is not fully correct. I find from the judgement of the trial, Court that while considering the oral and documentary evidence, the trial court has considered Exts. 1 to 1(7). The observations of the trial Court regarding these documents are as follows :- "Ext.1 to Ext.1 (7) are the land revenue receipts but then defendant also paid revenue as per Ex. Gha, Ex. Uma and Ex. Ja. Land revenue receipts are not clear proof of actual possession." (vide page 31 of the Paper Book) 7. The appellate Court has also taken into consideration Exts. 1 to 1(7), the revenue receipts. At page 52 of the paper book, we find that the appellate Court has taken notice of the existence of the revenue receipts. He has considered the effect of the revenue receipts vis-a-vis oral and documentary evidence adduced by the parties, while considering the question of title as also the question of possession of the suit land. The finding of the trial Court to the effect that revenue receipts are not proof of actual possession, has not been contested to be incorrect by the learned counsel for the appellants. Indeed, revenue receipts do not ipso facto prove actual possession of a land in favour of the holders of the receipts. Courts below have considered the revenue receipts of the plaintiffs as also the revenue receipts granted in favour of defendant No. 1. They took into consideration the effect of mutation, oral evidence in support of possession and then accepted the plea of the defendants. I do not find that there was any error of law committed by the Courts below. Ordinarily a finding as to possession based on evidence is a question of fact as the determination thereof is the result of appreciation of oral as also documentary evidence. On a perusal of the judgement of the Courts below I find that the Courts below have taken into consideration Exts. 1 to 1 (7) and weighed the same along with other evidence of the plaintiffs as also the defendants and have accepted the defence plea. On a perusal of the judgement of the Courts below I find that the Courts below have taken into consideration Exts. 1 to 1 (7) and weighed the same along with other evidence of the plaintiffs as also the defendants and have accepted the defence plea. It is entirely within the realm of the Courts of fact. 8. Under these circumstances, I am constrained to hold that it is not correct that the Courts below did not at all take into consideration Exts. 1 to 1(7). They have taken into consideration and weighed it. From the findings of the Courts below it appears clear that they have found the evidence produced on behalf of the defendants to be more reliable. Under these circumstances, I do not find any force in the contention of the learned counsel for the appellants. 9. Counsel for the appellants has relied on A.K. Roy v. K.C. Sen Gupta, AIR 1971 Cal 252 and draws my attention to a passage, which reads as under (at p. 255) :- "If a Court bases its judgement partly on evidence, partly on no evidence, partly on surmises and partly on conjectures, it is difficult for a court of higher jurisdiction sitting in appeal to decide as to which part of evidence and which part of conjecture and surmises and which part of no evidence entered into consideration of the court in arriving at a finding of fact. This situation raises a question of law which entitles the court in second appeal to decide that law upon reading entire evidence minus the conjecture and surmises." 10. In the instant case, the contingencies envisaged are conspicuously absent in the present case. In my opinion, if a finding is based on admissible as also inadmissible evidence and if they are mixed up, it should be the duty of a Court in a second appeal to consider as to whether the findings are sustainable on admissible evidence. I am also of the opinion that while appreciating evidence a Court of fact is bound to draw inference from proved facts and such conclusions based on legal evidence cannot be brushed aside as inadmissible in evidence. The words and expressions contained in S.3 of the Indian Evidence Act reinforce the view expressed by me. I am also of the opinion that while appreciating evidence a Court of fact is bound to draw inference from proved facts and such conclusions based on legal evidence cannot be brushed aside as inadmissible in evidence. The words and expressions contained in S.3 of the Indian Evidence Act reinforce the view expressed by me. Proof, in my opinion, is a method by which the existence or non-existence of some fact may be established to the satisfaction of the Court or the Tribunal charged with the duty of trying fact. Apart from evidence, namely, the testimony of witnesses and the production of documents and things there are other means of proof such as admissions, judicial notice and presumption. A Court charged with the duty of trying fact is entrusted to consider the relevancy according to the rules of logic and common experience of men. A fact is said to be proved when the Court after considering the matters before it (i) either believes it to exist, or (ii) considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exits. Therefore, a Court is to act on its belief and judicial consideration and to act upon supposition in order to arrive at the conclusion that a fact has been proved in connection with the case. Under these circumstances, it is not correct to say that it is not within the domain of the Courts and the Tribunals to act on belief, consideration and supposition in order to arrive at the conclusion that a fact has been proved. In my opinion, some amount of conjecture or surmises are part of the judicial process. I am of the opinion that on the plea that some inference or surmises have been drawn by a Court of fact, the High Court is not competent to re-examine the fact as a third Court of fact. However, if the inferences are drawn on no evidence whatsoever, the question may amount to a question of law and that too in exceptional cases. However, in the instant case, the counsel for the appellants has not been able to point out that any finding was based on mere conjectures and surmises having no backing of evidence. As such, in any view of the matter, the decision is not applicable in the present case. 11. However, in the instant case, the counsel for the appellants has not been able to point out that any finding was based on mere conjectures and surmises having no backing of evidence. As such, in any view of the matter, the decision is not applicable in the present case. 11. The only case of the appellants before me is that there was no proper appreciation of the documentary evidence, Exts. 1 to 1(7). Appreciation of oral or documentary evidence is absolutely within the jurisdiction of the Courts of fact and in a second appeal this Court cannot interfere with such findings. A faint argument has been made before me that the Courts below were wrong in deciding Issue No. 3, which reads as under :- "Whether the suit is barred by limitation ?" 12. An alternative plea was taken up by the defendants. The Courts below having found title and possession in favour of the defendants should not have determined the issue at all. In fact, the determination of the issue is wrong. Findings arrived at by the Courts below in respect of other issues were sufficient for the decision of the suit. Having found the title and possession in favour of the defendants Nos. 1 to 3 the Court below ought not to have determined this issue. It should have been left aside under O.20, R.5 of the C.P.C. However, the unnecessary determination of the issue in favour of the defendants did not in any way affect the merits of the case. Counsel for the parties have conceded that a wrong decision on this issue did not affect the merits of the case and does not render the judgement and decree reversible. 13. In the result, the appeal is dismissed on contest. However, in view of the nature of the contest and relationship of the main parties, I do not propose to burden the plaintiffs with any cost in this Court. Parties shall bear their respective costs in this appeal. Appeal dismissed.