H.N. SARMA, J.— This Second Appeal is filed by the plaintiff/appellant. The plaintiff filed the Title Suit No. 19/89 in the Court of Civil Judge (Jr. Divn.), No. 2 at Mangaldoi praying for the following reliefs: "i) for declaration of right, title and interest over the suit land; ii) for a declaration that the satedeed No. 117 dated 6\3.85 is illegal, void and inoperative i law; and iii) for ejectment of the defendant No. 3 from the suit land along with permanent injunction restraining the defendants from disturbing the plaintiff's possession in future." 2. The facts on the basis of which the plaintiff made the aforesaid prayer inter-alia are that the suit land measuring 4 kathas 5 lecha covered by dag No. 1260 of patta No. 16$ 150 situated at village Niranchuba, Mouzz Rainakuchi in the district of Darrang. The 'ka' schedule land originally belonged to on Baihagu and after his death the entire 'ka schedule land devolved on his heirs, and: was equally partitioned among the three brothers, namely, the plaintiff-Rahimuddin, Piyar A and Bahar AH. Equal shares of about 3 kath 11 lechas of land fallen amongst the three brothers are shown by a rough sketch ma below the schedule 'ka' property in the plain Subsequently on the basis of there was mutual adjustment between the plaintiff an his brother Piyar Ali, the plaintiff had give up 9 lechas of land hi favour of Piyar Ali while retaining with himself 3 kathas 2 lechas an Piyar Ali had 4 kathas in schedule 'ka' lane accordingly. 3. It is further pleaded that the plaintiff purchased the share of Bahar Ali the 'kha schedule land on 1.10.80 vide sale deed No 11080 for valuable consideration and is enjoying the same by taking delivery of possession. On 20.11.80, Piyar Ali the father of the defendant No. 1 and 2 had mortgaged an are of land measuring 1 bigha 5 lechas to the plaintiff by way of registered deed and delivered possession thereof. From the mortgage property, on 15.12.84, Piyar Ali sold out -kathas of land to the plaintiff by registered deed No. 3912 for valuable consideration and accordingly, the plaintiff became the sole owner and possessor of the entire schedule 'ka' land measuring 2 bighas 14 lechas. From the mortgage property, on 15.12.84, Piyar Ali sold out -kathas of land to the plaintiff by registered deed No. 3912 for valuable consideration and accordingly, the plaintiff became the sole owner and possessor of the entire schedule 'ka' land measuring 2 bighas 14 lechas. While the plaintiff was in possession of the suit land, it came to the notice of the plaintiff that by registered deed No. 1172 dated 6.3.85, Piyar All without knowledge of the plaintiff sold but 3 kathas 4 lechas out of 2 bighas 6 lechas from Dag No, 1267/1174 of patta No. 241 and also an area of 2 kathas 3 lechas covered by dag No. 169/150 of patta No. 1260 in favour of the defendant and started disturbing the plaintiff. 4. The defendant No. 3 contested the suit by filing a written statement pleading inter-alia that Piyar Ali had saleable right over the suit land and defendant No. 3 purchased the land by way of registered sale deed No. 16809 dated 1.10.80 from Piyar Ali measuring 1 bigha? lechas comprising the schedule 'kha' land for valuable consideration, and after such purchase, the defendant No. 3 took delivery of possession. The written statement was amended on 15,11.93 incorporating the fact that Bahar Ali expired before 1980 and he was not alive on 1980 when Bahar Ali is alleged to have executed sale deed No. 6809 in favour of the plaintiff. 5. Upon pleadings of both the parties, following issues have been framed: "i) whether the plaintiff has cause of action to sue the defendant ? ii) Whether the plaintiff has paid proper court-fee? iii) Whether the suit is barred by law of resjudicata u/s 11 of Civil Procedure Code ? iv) Whether the suit is bad for non joinder of necessary parties ? v) Whether the sale deed No. 1172 dated 6.3.85 allegedly executed by Late Piyar Ali in favour of Hamid Ali Saikia is false, illegal and inoperative in law? vi) Whether the Piyar Ali delivered possession of the suit land to the defendant No. 3 after executing the sale deed No. 1172 dated 6.3.85 as alleged in the W/S ? vii) Whether the plaintiff has got right, title and interest over the suit land ? viii) To-what relief, if any, parties are entitled ? vi) Whether the Piyar Ali delivered possession of the suit land to the defendant No. 3 after executing the sale deed No. 1172 dated 6.3.85 as alleged in the W/S ? vii) Whether the plaintiff has got right, title and interest over the suit land ? viii) To-what relief, if any, parties are entitled ? Additional Issues : 1) Whether Bahar Ali died Before execution of the registered sale deed bearing No. 6809 dated 1.10.80 as alleged in the amended W/S of defendant ?" 6. At the end of the trial, the learned trial court upon consideration of the materials and evidence on record suit was decreed dismissed vide judgment and decree dated 22.12.97 against which the Title Appeal No. 3/98 was filed in the court of learned Civil Judge (Sr. Divn.), Darrang, Mangaldoi. The learned appellate court reversed the findings of the learned trial court and dismissed the suit allowing the appeal, vide judgment and decree dated 21.8.98 against which the present Second Appeal has been filed. 7. Upon hearing learned counsel for the parties, the appeal was admitted to be heard on two substantial questions of law as has been framed for disposal of the present appeal. Which reads as follows: "1) Whether the appellate court having decided that the appellant and Piyar Ali each having ½ share in the suit land committed grave error in law by dismissing the appellant's suit in its entirety? 2) Whether the appellate court committed grave error in law by passing its finding on totally inadmissible evidence as regards the date of death of Bahar Ali ignoring other material evidence on record proving conclusively that Bahar Ali was alive on the date of execution of the sale deed Ext-I? 8. I have heard Mr. B. K. Ghosh, learned Senior Advocate assisted by Mr. N. Chakraborty for the appellant and Mr. D. Majumdar, learned counsel on behalf of the respondents. 9. Arguing on the first substantial question of law Mr. B. K. Ghosh, learned senior counsel has submitted that the trial court committed an obvious error of law in passing the impugned judgment and decree in as much as at paragraph-15 of the judgment, the appellate court, ultimately, came to a finding interalia that the share of Bahar Ali devolved with the plaintiff and Piyar Ali. B. K. Ghosh, learned senior counsel has submitted that the trial court committed an obvious error of law in passing the impugned judgment and decree in as much as at paragraph-15 of the judgment, the appellate court, ultimately, came to a finding interalia that the share of Bahar Ali devolved with the plaintiff and Piyar Ali. Although the appellate court, the suit was dismissed in its entirety and the appellate court ought to have decided about the share of the plaintiff. 10. Mr. Majumdar, learned counsel for the respondents however, has strenuously submitted that this finding of the learned appellate court considering in its entirety, it could not be said that there has occasioned failure of justice and learned appellate court committed any error of law necessitating any interference of this court in this Second Appeal. 11. The result of the ultimate analysis on the factual matrix of the case arrived at by learned appellate court inter-alia is that the share of Bahar Ali devolved upon both Md. Rahimuddin Ahmed and Md. Hamid Ali Saikia, appellant in respect of the land in question. In the same paragraph, learned appellate court held that Late Piyar Ali had right to sale 2 kathas 3 lechas of land as his share being half of the suit land covered by dag No. 1260 and defendant No. 3 had right to purchase the said land. 12. In view of the matter, the submission made by Mr. Ghosh appears to have force. On this count, the learned appellate court having held that share of Bahar Ali devolved with the plaintiff and Piyar Ali. The appellate court ought to have decided the matter regarding how much land the plaintiff is entitled on that count. 13. Accordingly, on miscount, the matter is remitted back to the learned appellate court who shall decide about the entitlement of the share of the plaintiff in view of the aforesaid finding. The first substantial question is answered accordingly. 14. So far the second substantial question of law is concerned regarding the date of death of Bahar Ali, it has been submitted by Mr. Ghosh that learned appellate court left out consideration of material evidence in coming to the aforesaid findings which is seriously disputed by Mr. Mazumdar. 15. The learned counsel for the parties led this Court to the material parts of the evidence of PW. Ghosh that learned appellate court left out consideration of material evidence in coming to the aforesaid findings which is seriously disputed by Mr. Mazumdar. 15. The learned counsel for the parties led this Court to the material parts of the evidence of PW. 2, the Gaonbura, DW.4, the Mouzadar to prove Ext. 'Kha' and 'Gha' respectively. PW. 2 was testified regarding Ext. 'Gha' only after his examination in chief. This witness giving deposed as a witness on merit of the claim of the plaintiff and his evidence before re-examination is contrary to what has been deposed after reexamination regarding the date of death of Bahar Ali. The learned appellate court, upon consideration of those exhibits as well as statement of witness had come to a findings with a view that Bahar Ali expired on 10.9.75 and decided this case u/s 100 of the CPC. This Court will not re-open the evidence to come to a different finding from what has been arrived at by the court of facts. Accordingly, I do not find any merit in this substantial question of law and the same is rejected. 16. In view of the aforesaid discussion, the appeal is partly allowed. The matter is remanded back to First Appellate Court i.e. Civil Judge (Sr. Dim), Mangaldoi to decide the quantum of entitlement of the plaintiff upon the land left by Bahar Ali after his death and the appellate court shall give its finding on the aforesaid limited question of fact. The other findings are not interfered with. 17. Send down the records immediately.