Judgment S. B. Sinha, J. 1. This first appeal is directed against a judgment and decree dated 4th larch, 1983 passed by Sri Indrajeet Mishra, 4th Additional subordinate Judge, Daltonganj in Partition Suit No.2 of 1981 whereby and whereunder the said learned court decreed the plaintiffs-respondents suit. 2. The plaintiffs-respondent Nos.1 and 2 filed the aforementioned suit for declaration of their title purported to be on the basis of two deeds of sale dated 14-11-1979 (Exts.2 and 2/a) executed by Sarifan Bibi in their favour whereby and whereunder the plaintiffs allegedly acquired half share in the properties in suit, and fora decree for partition in respect thereof by carving out a separate khata through a survey knowing Pleader Commissioner- 3. The fact of the matter lies in a very narrow compass. The properties in suit admittedly belonged to one Budhan Mian father of defendant No.1 and Nabi Husain Mian. The suit lands were recorded in their names in the survey settlement record-pf-rights shown Budhan Mian having 3/4th share and Nabi Hussain Mian having l/4th share therein. Allegedly, they had also been in separate possession of the suit properties for the sake of convenience. 4. It appears that in the survey settlement record-of-rjghts plot Nos.642 measuring 29 decimals and plot No.646 measuring 4 decimals were shown to be in possession of Nabi Hussain. According to the plaintiffs, however, the lands in question being appertaining to khata Nos.10 and 29 of village Parwa were not partitioned by metes and bounds. It was further alleged that Budhan Mian along with Dasai Harijan, Sahdeo Kurmi and ishwar Kurmi and Nabi Hussain jointly owned and possessed 5.28 decimals of land appertaining to khata No.27 of the said village and in the record of rights, it was shown that Dasai had four shares, Sahdeo Kurmi and ishwar Kurmi had 8 shares, Budhan Mian had 9 shares and Nabi Hussain had 3 shares therein. According to the plaintiffs, there had been no partition by metes and bounds, although their separate possession had been recorded in the remarks/column of the Khatiyan. The lands appertain, ing to khata No.10 and khata No.29 of village Parwa were more fully and in details mentioned in Schedule 1 of the plaint whereas lands appertaining to aforementioned khata No.27 have been more fully and in details described in Schedule II thereof. 5. The lands appertain, ing to khata No.10 and khata No.29 of village Parwa were more fully and in details mentioned in Schedule 1 of the plaint whereas lands appertaining to aforementioned khata No.27 have been more fully and in details described in Schedule II thereof. 5. It is also alleged that Budhan Mian owned and possessed 16.37 acres of land recorded in khata Nos.34,85,96 and 99 of the said village and the same being his raiyati land, he was recognised as such by the state of Bihar and a demand was opened in his name. The said lands have been described in Schedule III of the plaint. 6. Budhan Mian died in the year 1976 leaving behind a son Nathuni mian and a daughter Sarifan Bibi @ Lakhiya Bibi as his surviving heirs. Admittedly, he had another daughter Domni Bibi who predeceased him. According to the plaintiff, Nathuni got 2/3rd share and Sarifan l/3rd share in the properties of the aforementioned Budhan Mian in accordance with the Mohammedan Law which they inherited after his death. 7. It is alleged that Dasai Harijan sold his l/4th share in Schedule II lands to Nathuni Mian (defendant No.1) and Sahdeo Kurmi whose heirs are defendant Nos.6 to 10. Sarifan Bibi inherited 1/3rd share in the lands left by her father and sold it to the plaintiffs through two registered sale deeds dated 14-11-1979 for valuable consideration and put the plaintiffs in possession of the lands. 8. Allegedly, the plaintiffs filed an application for mutation of their names and a demand was opened in their names upon observance of all the formalities and thereafter they had been paying rent to the State of bihar. The plaintiffs alleged that they had been growing wheat and barley in the lands in question. Admittedly, a proceeding under Sec.145 of the Code of Criminal Procedure was initiated in respect of the said lands by and between the plaintiff and defendant No.1 which was later on converted into a proceeding under Sec.146 of the Code of Criminal procedure. The said lands were attached by the learned Executive magistrate by an order dated 28-11-1980. The plaintiffs have filed the aforementioned suit in that situation. 9. Two sets of written statements have been filed in the suit; one on behalf of defendant Nos.1 to 10 and other on behalf of defendant Nos.6 to 10. The said lands were attached by the learned Executive magistrate by an order dated 28-11-1980. The plaintiffs have filed the aforementioned suit in that situation. 9. Two sets of written statements have been filed in the suit; one on behalf of defendant Nos.1 to 10 and other on behalf of defendant Nos.6 to 10. Defendant Nos.6 to 10 at a later stage of the suit filed an application alleging therein that the written statement shown to have been filed on their behalf had, in fact, not been filed upon receipt of any instruction from them. In that situation, learned court below treated the first written statement filed by defendant Nos.1 to 10 as trie written statement filed on behalf of defendant Nos.1 to 5 and the other written statement filed on behalf of 6 to 10 as having been filed by the said defendants. 10. The contesting defendants, inter alia, contended that Sarifan Bibi was not the daughter of Budhan Mian. According to the said defendants, budhan Mian left behind only one son Nathuni Mian and he had a daughter Domni Bibi who had predeceased him leaving behind four sons-Boudh Mian, Bazzaque Mian, Ishaque Mian and Rahmatullah Mian and a daughter Jauhari. 11. According to the contesting defendants, proforma defendant no.11 Sarifan Bibi is an imposter, and the purported deeds of sale exts.2 and Exts.2/a are absolutely fictitious and bogus documents. It was further alleged that when the lands in question were mutated in the office of the State of Bihar in the name of the plaintiffs, an appeal was preferred by defendant No.1 and the appellate authority set aside the order of mutation. It was further contended that the lands of khata No.85 were the self-acquired properties of the said defendants. 12. On the basis of the pleadings of the parties aforementioned, the learned court below framed the following issues : 1. Is the suit as framed maintainable ? 2. Have the plaintiffs any cause of action for the suit ? 3. Is the suit barred by the principles of estoppel, waiver and acquiescence ? 4. Is the suit barred by limitation and adverse possession ? 5. Is Sarifan Bibi, vendor of the plaintiffs, daughter of Budhan mian ? 6. Whether the plaintiffs are entitled to the reliefs claimed by them and they have got unity of title and possession with respect to the suit lands ? 7. 4. Is the suit barred by limitation and adverse possession ? 5. Is Sarifan Bibi, vendor of the plaintiffs, daughter of Budhan mian ? 6. Whether the plaintiffs are entitled to the reliefs claimed by them and they have got unity of title and possession with respect to the suit lands ? 7. Whether the lands of khata No.85 are self-acquired properties of the defendants as contended by them ? 8. To what relief or reliefs, if any, are the plaintiffs entitled ? 13. The learned court below took up issue Nos.5 and 6 for consideration at the outset and came to the conclusion on the basis of the materials on records that the plaintiffs have been able to prove that Sarifan bibi was the daughter of Budhan Mian. 14. On issue No.3, the learned court below held that the said issue does not arise for consideration in the suit. Other issues were also decided in favour of the plaintiff. 15. Mr. N. K. Prasad, learned counsel appearing on behalf of defendants/appellants raised two contentions in support of this appeal. Learned counsel firstly submitted that the learned trial court has misinterpreted and mis-construed the evidences on records for the purpose of holding that Sarifan Bibi was the daughter of Budhan Mian. According to the learned counsel, the statements of the witnesses examined on behalf of the plaintiffs do not conform to the provisions of Sec.50 of the evidence Act insofar as none of the witnesses made any statement with regard to the conduct of the parties so as to connect Sarifan with Budhan mian. 16. Learned counsel further submitted that once it is held that the evidence of the witnesses examined on behalf of the parties are not in conformity with the provisions of Sec.50 of the Indian Evidence Act, the same should be rejected. Learned counsel in this connection has relied upon Dolgobinda Paricha V/s. Nimai Charan Misra and others reported in AIR 1959 SC 914 ; in Smt. Fulkalia V/s. Nathu Ram and others reported in AIR 1960 Patna 480. 17. It was further submitted that in the instant case, Sarifan Bibi was not examined by the plaintiff, although she was a party to the suit and, thus, an adverse inference should have been drawn by the learned court below for non-examination of the said Sarifan Bibi in terms of section 114 (g) of the Indian Evidence Act. 17. It was further submitted that in the instant case, Sarifan Bibi was not examined by the plaintiff, although she was a party to the suit and, thus, an adverse inference should have been drawn by the learned court below for non-examination of the said Sarifan Bibi in terms of section 114 (g) of the Indian Evidence Act. 18. Learned counsel next contended that the learned court has committed an illegality in permitting the defendant Nos.6 to 7 to file a separate written statement without holding an enquiry as to whether, in fact, the written statement filed by them earlier together with defendant nos.1 to 5 was genuine or not. Learned counsel contended that the defendant Nos.6 to 10 in their first written statement which was filed alongwith defendant Nos.1 to 5 contended that Sarifan Bibi was not the daughter of Budhan Mian whereas in their subsequent written statement, they completely denied their story. According to the learned counsel, even not allowing an amendment of pleadings, such a course of action is not permissible. 19. Mr. S. K. Chattopadhyay, learned counsel appearing for the plaintiffs-respondents, on the other hand, submitted that from a perusal of the evidences adduced on behalf of the parties, it would appear that the contesting defendants/appellants even did not chose to cross-examine the witnesses on vital aspect of the matter and, thus, their statements must be held to have been admitted. 20. According to the learned counsel, the evidence of the witnesses examined on behalf of the plaintiffs conform to the provisions of Section 50 of the Evidence Act and the learned counsel in suport of his contention strongly relied upon Badri Mian V/s. State reported in ATR 1988 NOC 6 ; in md. Ayub Khan and another- V/s. Abdus Samad and others reported in 1969 (17) BLJR 932 and in Jankilahar @, Jan Ram and others V/s. Bideshi ram and others reported in 1991 (1) BLJR 720 . 21. It was further submitted that the appellant did not disclose as to whose daughter Sarifan Bibi was, which was one of the issues. Learned counsel for the respondent has relied upon Toral Mahto V/s. Chandreswar mahto reported in 1971 BLJR 418. It was further submitted that non-examination of a witness does not necessarily lead to drawing of an adverse inference if otherwise the plaintiffs have been able to prove their case. Learned counsel for the respondent has relied upon Toral Mahto V/s. Chandreswar mahto reported in 1971 BLJR 418. It was further submitted that non-examination of a witness does not necessarily lead to drawing of an adverse inference if otherwise the plaintiffs have been able to prove their case. Learned counsel in this connection has relied upon Bihar State Board of Religious Trust V/s. Acharya Mahanth reported in AIR 1974,patna 95. 22. Learned counsel further submitted that in view of the fact that the defendant Nos.6 to 10 were allowed to file a written statement as would be evidence from the order-sheet dated 15-2-1982 without any objection having been raised on behalf of the plaintiffs, the same would operate as res judicata and the written statement filed by the defendant Nos.6 to 10 may be considered to be an additional pleadings within the meaning of order VIII, Rule 9 of the Code of Civil Procedure. 23. In view of the aforementioned rival contentions, the following questions arise for consideration in this appeal :- A. Whether the finding of the learned trial court to the effect that Sarifan Bibi is the daughter of Budhan Mian is correct ? b. Whether learned court below should have allowed the defendant Nos.6 to 10 to file another written statement although they filed a joint written statement earlier with defendant Nos.1 to 5 ? 24 Re-question No.1.-Mr. N. K. Prasad, learned counsel for the appellant submitted that the evidences adduced on behalf of the plaintiff-respondent do not conform to the provisions of Sec.50 of the Evidence act which reads as follows :- "50. Opinion on relationship when relevant.-When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact: provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of I860 ). " 25. " 25. It is now a settled law that in order in admit evidence, under the aforementioned provisions, three conditions must be fulfilled :- (1) A person must be proved to have special means of knowledge : (a) the opinion alone is evidence ; (b) the opinion as expressed by conduct only is evidence ; or in other words ; (c) conduct only can be given in evidence ; (2) From the conduct given in evidence, the court is to see whether it is the result of any opinion held by the person. (3) The opinion which is relevant must be one as to the existence of relationship. 26 In Dolgobind Paricha V/s. Nimai Charan Mishra and others, reported in AIR 1959 SC 914 , the Supreme Court held that the conduct or outward behaviour must be proved in the manner laid down under Sec.60. It has further been held that that portion of Sec.60 which provides that the person who holds an opinion must be able to prove his opinion does not necessarily delimit the scope of Sec.50, in the sense, that the opinion expressed by conduct must be proved only by the person whose conduct expresses opinion which, as an extra-ordinary percentible fact, be proved either by the testimony of the person himself whose opinion is evidence under Sec.50 or by some other person acquainted with the facts which express such opinion and as the testimony must relate to external facts which constitute conduct and is given by person personally acquainted with such facts the testimony is in each case direct within the meaning of section 60. The Supreme Court further held :- "but while Sec.50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge of the section does not imply that the person whose opinion is a relevant fact cannot be called to the state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. Sec.50 does not put any such limitation. " 27. Sec.50 does not put any such limitation. " 27. What is an opinion,-The Supreme Court in Dalgobindas case states : "opinion means something more than mere ratailing of gossip or of hearsay ; it means judgment or belief that is, a beiief or a conviction resulting from what one thinks on a particular question. Now the belief or convict in may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. " 28. In Smt. Fulkalia V/s. Nathuram and others, reported in AIR 1960 patna 480, a Division Bench of this Court followed Dalgobindas case (Supra ). In Suraj Nath Choudhary and others V/s. Sugga Devi being First Appeal no.4/75 (R) disposed of on 11-5-1987. I have held that evidence of co-villagers and persons related to the family are competent to depose with regard to the conduct of the persons living for a long time as husband and wife. 29. In Mohd. Ayub Khan and another V/s. Abdus Samad Khan and others, reported in 1969 (17) BLJR 932, a Division Bench of this Court has held that when a statement has been made by a person having special means of knowledge in a deed, such a deed would be admissible in evidence in terms of Sec.50 of the Evidence Act. 30. This Court recently in Janki Kahar @ Jan Ram V/s. Bideshi Ram and others, reported in (1991) 1 BLJR 720 reiterated the aforementioned propositions of law. 31. It is, therefore, to be seen as to whether the evidence of the witnesses examined on behalf of the parties conform to the provisions of section 50 and 60 of the Evidence Act or not. 32. The plaintiffs in support of their case examined 9 witnesses. P. Ws.1, 4, 5 and 6 are close relations of Budhan Mian. P. Ws.2 and 3 arr neighbourers and P. W.9 is plaintiff himself. P. W.1 is Nijamuddin. Budhan Mian and his grandfather were brothers. He is, therefore, a competent witness and has special means of knowledge. His opinion about relationship will be relevant as he himself is related to both Nathuni Mian and Sarifan Bibi. This witness stated that budhan Mian died leaving behind one son and one daughter. P. W.1 is Nijamuddin. Budhan Mian and his grandfather were brothers. He is, therefore, a competent witness and has special means of knowledge. His opinion about relationship will be relevant as he himself is related to both Nathuni Mian and Sarifan Bibi. This witness stated that budhan Mian died leaving behind one son and one daughter. He not only gave the name of the daughter as Sarifan Bibi, but also gave her alias name. 33. He further stated that after the death of Budhan, Sarifan came in possession of the land. He further stated that there had been no partition by metes and bounds in respect of the lands in question. He stated that both Sarifan Bibi and Nathuni Mian used to cultivate the lands of budhan Mian. He further stated that Sarifan Bibi sold the land in suit to the plaintiffs who thereafter came in possession thereof. The plaintiffs have purchased some lands from his brothers also. The contesting defendant/appellants did not cross-examine him with regard to his relationship with Budhan Mian. 34. In cross-examination, he also stated that Domni was the daughter of Budhan who died about 35-40 years back. He further stated" that Sarifan is of his age. He has also stated that Sarifan married about 30 years back and at that time his age will be 15-16 or 20. On the date of his deposition, he stated his age to be 48 years. According to him at that time Sarifan would also be of the same age of 15-16 or so. This witness frankly stated that he had not met Sarifan for about 8-10 years. He gave out the name of the father-in-law of Sarifan Bibi. 35. P. W.2 is Md. Yasin. This witness was aged about 60 years on the date of his deposition. This witness stated that he had no relation with both Budhan and Nabi Hussain and his house was only 500 yards away from the house of Budhan Mian. This witness further stated that sarifan had been in possession of the suit land. This witness stated the name of the village where Sarifan had been married. He also stated about the husbands name of Sarifan. He also knows her husband. According to this witness, he had been seeing Sarifan from his hosh which he attained at the age of 10-12 years. He had not seen Domni. 36. P. W.3 is Suleman Khalifa. This witness stated the name of the village where Sarifan had been married. He also stated about the husbands name of Sarifan. He also knows her husband. According to this witness, he had been seeing Sarifan from his hosh which he attained at the age of 10-12 years. He had not seen Domni. 36. P. W.3 is Suleman Khalifa. He is also resident of the same village. He used to go to the house of Budhan. According to this witness, Budhan had two daughters and the name of one of his daughter sarifan @ Katia. He also stated that after BudHon s death both Nathuni and Sarifan came in possession. In cross-examination, he stated that Sarifan was married about 20 years back and was married in Ba/ari. He stated that Sarifan had three. sons and one daughter. According to this witness, Sarifans in-laws had agricultural lands in the said village Bazari also. According to this witness, Sarifan had all along been going to Bharoa, that is, her fathers place. 37. P. W.4 is Md. Sakin @ Doman Mian. He was 60 years of age on the date of his deposition. According to this witness, Budhan Mian was his fathers sisters husband. He was also, therefore, closely related with budhan Mian. This witness also stated that Sarifan @ Kalia was daughter of Budhan. He stated the husbands name of Sarifan as also her father in-laws name. According to this witness, Sarifan would be about 45 years old. This witness has also stated that after the death of Budhan mian he came in possession of the properties left by him along with nathuni. He gave the names of all the brothers of Budhaq, Mian and stated the details about other family members. This witness further stated that Domni, the eldest daughter of Budhan died about 30 years back. He also disclosed the name of husband of Domni. He further stated that Sarifan had four children and the eldest is the daughter. He further stated that Sarifan used to come to his house with a daughter in her lap. But he could not state her name. In paragraph 4 he stated that there was no particular reason for which sarifan used to come. This witness further stated that about 3-4 years back, she came to his house on invitation. He further stated that Sarifan used to come to his house with a daughter in her lap. But he could not state her name. In paragraph 4 he stated that there was no particular reason for which sarifan used to come. This witness further stated that about 3-4 years back, she came to his house on invitation. He stated that in between his house and Nathunis house, the houses belonging to Ramjan and Pirsu are situated. 38. P. W.5 is Md. Hussain. According to this witness, Nathunis father was his grandfather. This witness also stated that at the time of his death, he had two children; one son and one daughter. The daughters name was Sarifan @ Kalia. He also stated that after the death of Budhan both Nathuni and Sarifan came in possession of the land in question. According to this witness, Sarifan sold her share to the plaintiffs and the plaintiffs are in possession of the lands. This witness was not cross-examined at all with regard to his relationship with Budhan. This witness also stated that he had seen Sarifan 2-3 years back in the house of Nathuni where she used to live and get his land cultivated. 39. P. W.6 is Sahamir Mian. According to this witness Nathuni mian is his Mamera bhai and Bhudhan was his Mama. He, thus, knows sarifan who was the sister of Nathuni. He further stated that Sarifan had executed two sale deeds in favour of the plaintiffs in which he was a witness. He identified Sarifan before the Registrar. He read over and explained to Sarifan the contents of the said deeds. In cross-examination also this witness reiterated that Sarifan used to cultivate about 30-32 acres of land. According to this witness, Budhan mian had about 30-34 acres of land. In cross-examination, he stated that Sarifan has his Mameri Bahan. This witness further stated that sarifan had three sons and one daughter. According to this witness, he had been to the village Bajari. He denied a suggestion that he met sarifan only on the day when the sale deeds were executed. He further denied the suggestion that the sale deeds which he had proved are forged. He also gave details of the lands which he had in the village. 40. P. W.9 Amir Hussain, is the plaintiff himself. He denied a suggestion that he met sarifan only on the day when the sale deeds were executed. He further denied the suggestion that the sale deeds which he had proved are forged. He also gave details of the lands which he had in the village. 40. P. W.9 Amir Hussain, is the plaintiff himself. According to this witness, he had been knowing Sarifan for the last 20 years. He stated that name of father-in-law of Sarifan. This witness also stated that Sarifan had one daughter and three sons. This witness further stated that Sarifan used to stay with her father at Bhave regularly after her marriage. This witness further stated that Budhan had got a house constructed for Sarifan. According to this witness, Sarifan would be about 50 years of age. 41. Upon consideration of the evidence of the witnesses as referred to hereinbefore, there cannot be any doubt that each of the witnesses has referred to the conduct of Sarifan which has some relation in the matter of formation of opinion by the concerned witnesses about her relationship with Budhan Mian and/or Nathuni Mian. 42. The witnesses examined on behalf of the plaintiffs had special means of knowledge about the said relationship. They had also their own knowledge about the said relationship. It is, therefore, not a case where the evidence of the witnesses are inadmissible being not in conformity with the provisions of Sections 50 and 60 of the Evidence Act. 43. Apart from the plaintiffs, Bhuneswar Mahto (D. W.1) stated that Sarifan is daughter of Budhan Mian. He also supported her possession over the said land after her fathers death. This witness was also cross-examined on behalf of defendant Nos.1 to 5 appellant. 44. The defendants have examined 12 witnesses and out of the said witnesses, D. Ws.2, 3, 4, 6, 10 and 11 are formal. D. W.5 is son of Nathuni Mian. This witness stated that no lady by the name of Sarifan Bibi @ Kalia Bibi lives in his village. In cross-examination, he firstly stated that he did not know as to whether Sarifan was daughter of Buchan ; but he than corrected himself and stated that she was not daughter of Budhan. He stated that in relation to the land in question, there was no proceeding under Sec.144 of the Code of criminal Procedure. In cross-examination, he firstly stated that he did not know as to whether Sarifan was daughter of Buchan ; but he than corrected himself and stated that she was not daughter of Budhan. He stated that in relation to the land in question, there was no proceeding under Sec.144 of the Code of criminal Procedure. He further stated that in relation to the suit lands the plaintiffs did not file an application for mutation of their names which are not facts. 45. D. W.7 is Abdul Razak. He was only aged 32 years on the date of his deposition. According to this witness Nathuni Mian is his mausj. He is not aware whether Sarifan is the daughter of Budhan as budhan had only one daughter Domni. He admitted that he lives in the house of Dildar Mian and Nathuni are father-in-law and son in law. This witness is a resident of Gaya district where he had been living. He stated that he has been staying in his Nainihal since the age of 10 years, but failed to name even the inmate of the house near the house of nathuni Mian. He, therefore, is not competent witness. He does not know the name of other members of the family of Budhan Mian. 46. D. W.8 is Rozi Mian and aged about 42 years at the time of his deposition, and is a resident of village Aka Basa within the police station Chatarpur. He claimed that Budhan Mian was his phupha. According to him, sarifan is not his cousin sister. This witness firstly stated that there is nobody in the family of Nathuni Mian, but thereafter, he stated that he had no brother. He could not state the name of Phupha of Nathuni mian. According to him, he does not know the phuphi of Nathuni Mian. He also could not say as to how many children Nathuni Mian has. He also could not say who was Nabi Mian who admittedly was brother of budhan Mian. He also could not say who is Abbas Hussain or Siddique mian. This witness also stated that Budhan Mian died about 25-30 years back, although it is admitted case that Budhan Mian died in 1976. This witness examined himself on 14-12-1982. According to this witness, he attained hosh at the age of 30. This witness abmitted that he had been tutored to some extent by Nathuni Mian. This witness also stated that Budhan Mian died about 25-30 years back, although it is admitted case that Budhan Mian died in 1976. This witness examined himself on 14-12-1982. According to this witness, he attained hosh at the age of 30. This witness abmitted that he had been tutored to some extent by Nathuni Mian. 47. D. W.12 is defendant No. I/appellant Nathuni Mian himself. According to this witness, his daughters are married at village Bajrahi. According to this witness, he enquired from his Samadhi and came to learn that no woman named Sarifan wife of Naz Mohammad had been living in that village. His Samdhi has been examined only. No other witness of village Bajrahi has been examined. 48. D. W.13 is one Sattar Mian. According to this witness he is son of Domni. However, the contesting defendant Nos.1 to 5 in paragraph 22 of their written statement gave out the names of son left behind by Domni but there in the name of Sattar Mian does not figure. 49. It is now well-known by various decisions that the appellate court should be also to interfere with the findings of fact arrived at by the trial court who had the opportunity to consider the demanour of the witnesses. See Madhusudan Das V/s. Smt. Narayani Bai and others, reported in 1983 bbcj 33 (SC ). In H. M. Doyal and Co. V/s. Ram Nath Chitkare and others reported in 1985 (28) Delhi Law Times, 212 wherein the learned Judges have stated :- "in Sarju Prasad Ramdeo Sahu V/s. Jwaleshwari Pratap Narain Singh and others, AIR 1951 SC 120 it has been observed as under :- When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the findings of the trial Judge on question of fact. In T. D. Gopalan V/s. Commissioner of Hindu Religions and Charitable endowments, Madras, AIR 1972 SC 1716 , it has been observed as under :-we appreciate that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. i may also mention that the evidence in this case was recorded by the same Judicial Officer who has given the judgments as Additional Rent Controller. I am, therefore, of the opinion that the Controller Tribunal by disregarding the law as laid down by the Supreme Court has wrongly held that the cheque dated 27 May, 1977 was sent by the appellate to respondent No. I. " 50 In Mosst. Champa Devi and others V/s. Madhu Sharan Singh and others, reported in AIR 1981 Patna 103, a Division Bench of this Court in a case concerning interpretation of Sec.50 of the Evidence Act observed :- "section 50 of the Evidence Act states, inter alia, that when the court as to the relationship of one person to another has to form an opinion expressed by conduct, as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject, is a relevant fact. Conduct as an external perceptible fact may be proved either by the person himself whose opinion is evidence or by some other person acquainted with the facts which express such opinion. In case of party factions in a village oral evidence of the witnesses has to be scrutinised with great care and caution and while doing so it has to be remembered that the views of the trial court which had the occasion to mark the demeanour of the witnesses should not be lightly brushed aside unless there be cogent reasons to do so. " 51. Apart from the said fact, it appears that the defendants examined on behalf of the defendants have not been cross-examined with regard to their relationship with Nathuni. 52. Mr. " 51. Apart from the said fact, it appears that the defendants examined on behalf of the defendants have not been cross-examined with regard to their relationship with Nathuni. 52. Mr. N. K. Prasad submitted that learned court below committed an illegality in holding that the witnesses examined on behalf of the plaintiff have not been cross-exemined at all. It appears that the said witnesses have not been cross-examined with regard to their statements that they are related to Budhan Mian and defendant No.1 Nathuni Mian. 53. It is now well known that a witness should be cross-examined on each and every point and failure to cross-examine him on a particular point will entail a presumption that the party not cross-examining the witnesses has accepted his evidence. See M/s. Chuni Lal Dwarka Nath V/s. Hartford Fire Insurance Co. Ltd. and another, reported in AIR 1958 Punj 440 and Karnidan Sarda and others v. Sailaja Kama Mitra, reported in AIR 1940 Patna 683. 54. In Bihar State Board of Religious Trust V/s. Acharya Mahanth Amrit das and another, reported in 1973 PLJR 509 : AIR 1974 Patna 95, this court has held :- "in (8) Karindan Sarda V/s. Sailaja Kanta Mitra, AIR 1940 Patna 683, wort and Manohar Lall, JJ. observed that if witnesses are not cross-examined on the point, their evidence has to be accepted unless there were any inherent improbabilities. Similar view was taken in (9) Jayalakshmi devamma V/s. Janardhan Reddy, AIR 1959 Andhra Pradesh 272, by Satyanarayana Raju and kumarayya, JJ. I find no inherent improbabilities in the evidence of P. W.16. Therefore, I am not inclined to draw any adverse inference due to non-examination of Rambilas Das, plaintiff No.1. " 55 It is true that the plaintiff did not examine Sarifan Bibi. It appears from the records that Sarifan Bibi filed a Vakalatnama. She, thereafter, did not contest the suit. It is just possible that after transferring her entire interest she was not interested in the subject-matter of the suit and, therefore, she did not contest the same. 56. Defendant No.1 merely stated that Sarifan is an imaginary lady. He did not try to make an enquiry as to whose daughter she was. It was not a natural conduct on the part of a person who denies that Sarifan was his sister. 57. 56. Defendant No.1 merely stated that Sarifan is an imaginary lady. He did not try to make an enquiry as to whose daughter she was. It was not a natural conduct on the part of a person who denies that Sarifan was his sister. 57. Section 114 of the Evidence Act does not say that adverse inference has to be drawn. Adverse inference for non-examination of an oral witness cannot be drawn if there are other cogent evidence on record. In a case of this nature, where both the parties have adduced evidence, the same has to be considered on the basis of preponderence of probabilities on the basis of such evidence. 58. Taking thus all facts and circumstances into consideration, I am of the view that it cannot be said that the finding of the learned trial court to the effect that Sarifan was the daughter of Budhan Mian was incorrect. 59. Re-question No.2.-It is true that defendant Nos.6 to 10 did not obtain any express leave to file additional written statement. Jt is further true that the learned court below did not make any enquiry as to whether the allegations made by them that their signatures on the written statement were obtained by a fraud was correct or not. 60. From the order-sheet dated 15-2-1982, it appears that the written statement filed by the defendant Nos.6 to 10 was accepted. Plaintiff did not make any objection. It is true that there is nothing on record to show that the contesting defendant Nos.1 to 5 (appellants) also did not make any objection. But it has also not been pointed out by Mr. Prasad that at any point of time any objection was raised on behalf of defendants/ appellants with regard to filing of a separate written statement by the defendant Nos.6 to 10. 61. From the evidence on record, it appears that throughout the hearing of the suit, the defendant Nos.6 to 10 were represented by a separate lawyer. They cross-examined the witnesses examined on behalf of the plaintiffs separately and examined their own witnesses, namely, D. W.1, who was cross-examined on behalf of the appellant. 62. Even in the memo of appeal, the aforementioned order dated 15-2-1982 has not been questioned which should have been done in terms of Sec.105 of the Code of Civil Procedure. They cross-examined the witnesses examined on behalf of the plaintiffs separately and examined their own witnesses, namely, D. W.1, who was cross-examined on behalf of the appellant. 62. Even in the memo of appeal, the aforementioned order dated 15-2-1982 has not been questioned which should have been done in terms of Sec.105 of the Code of Civil Procedure. It, tnerefore, cannot be said that the appellants were in any way prejudiced by acceptance of the written statement separately filed by the defendant Nos.6 to 10 by the learned court below. 63. Taking thus all facts and circumstances into consideration I am of the view that there is no merit in this appeal which is accordingly dismissed. There will, however, be no order as to costs. Appeal dismissed.