Judgment :- 1. This Second Appeal is directed against the Judgment and Decree, dated 30.08.1996 made in A.S. No.51 of 1994 on the file of the Principal Subordinate Judge, Erode confirming the Judgment and Decree, dated 30.11.1995 made in O.S. No.1325 of 1984 on the file of the II Additional District Munsif, Erode. 2. The Appellants herein were Defendants 1 and 3 to 10 in the Suit referred to above and the Suit was filed by the Respondent/Plaintiff, seeking (a) declaration of title of ‘A’ schedule of property and delivery of possession of the same; (b) declaring that the 18 links broad passage shown as ‘B’ schedule as common passage to the Plaintiff and the Defendants and for permanent injunction restraining the Defendants from interfering with the Plaintiff’s right of passage over the ‘B’ schedule of property; (c) mandatory injunction directing the Defendants to remove the gate, hayricks etc., so as to enable the Plaintiff to use the 18 links broad passage to reach the canal on the south; and (d) permanent injunction restraining the Defendant from interfering with the Plaintiff’s enjoyment of ‘C’ schedule property. 3. The Trial Court, decreed the Suit as prayed for, aggrieved by which, the Defendants preferred Appeal in A.S. No.51 of 1994 before the Court below. Subsequently, the Second Defendant was reported dead, his Legal Representatives were brought on record as Respondents 3 to 10. The First Appellate Court, after hearing both sides, confirmed the Judgment and Decree passed by the Trial Court and dismissed the Appeal, against which, this Second Appeal has been preferred. 4. In the second Appeal, the following substantial questions of law have been raised by the Appellants: 1. Whether the Courts below are correct in placing the burden on the Defendants to prove the case of the Plaintiff, especially when the relief sought for is one of declaration of title? 2. Had not the Courts below committed an error in law in relying upon the Commissioner’s Report which overlooked the discrepancies in the plan submitted by the Firka Surveyor and Municipal Surveyor, who had assisted the Commissioner during his visits and in the preparation of the report? 5. Substantial Question of Law No.1 : Mr. 2. Had not the Courts below committed an error in law in relying upon the Commissioner’s Report which overlooked the discrepancies in the plan submitted by the Firka Surveyor and Municipal Surveyor, who had assisted the Commissioner during his visits and in the preparation of the report? 5. Substantial Question of Law No.1 : Mr. T.R. Mani, learned Senior Counsel appearing for the Appellants/Defendants submit that the Court below have shifted the burden on the Appellants/Defendants to prove the case of the Plaintiff, though the main relief sought for in the Suit is for declaration of title to the suit property. Per contra, Mr. S.V. Jayaraman, learned Senior Counsel appearing for the Respondent/Plaintiff submitted that the burden of proving Plaintiff’s title to the property was not shifted on the Appellants/Defendants by the Courts below, as stated by the Appellants and according to him, the Plaintiff has established her title to the property in the manner known to law by adducing oral and documentary evidence. 6. It is seen that the Trial Court framed five issues for deciding he Suit and the Appellate Court has framed six points for the determination of the Appeal. A perusal of the issues and points for determination would clearly show that the burden of proving the case of the Plaintiff was not shifted on the Appellants/Defendants by the Courts below. On the side of the Plaintiff, the Respondent/Plaintiff herself was examined as P.W.1, apart from examining two other witnesses and marking the documents Exs.A.1 to A.7. On the side of the Appellants/Defendants, the Second Defendant was examined as D.W.1, apart from examining another witness as D.W.2. On the side of the Appellants/ Defendants, documents Exs.B.1 to B.3 were marked. Advocate-Commissioner was appointed, who inspected the property, filed his first report, dated 29.09.2005 and sketch as Exs.C.1 and C.2, subsequently, again the Advocate Commissioner inspected the property and filed his additional report and sketch as Exs.C.3 and C.4. On the side of the Appellants/ Defendants, documents Exs.B.1 to B.3 were marked. Advocate-Commissioner was appointed, who inspected the property, filed his first report, dated 29.09.2005 and sketch as Exs.C.1 and C.2, subsequently, again the Advocate Commissioner inspected the property and filed his additional report and sketch as Exs.C.3 and C.4. Based on the oral and documentary evidence and the arguments advanced by both the learned Counsel, the Trial Court held that the Respondent/Plaintiff is entitled to declaration of title to ‘A’ and ‘C’ schedule properties and also declaration of ‘B’ schedule property as a north-south common cart track of 18 links breadth and granted mandatory injunction to remove the gate and other obstructions made in the said common cart track by the Appellants/Defendants and also granted permanent injunction in respect of ‘C’ schedule property restraining the Defendants from interfering with the peaceful possession and enjoyment of the said property by the Plaintiff? 7. The Courts below have held that the Respondent/Plaintiff had purchased the ‘A’ and ‘C’ scheduler property, on 27.11.1976 from one A.S. Palaniappan and there others for a sum of Rs.7,000/- under Ex.A.1, subsequently, she got a Sale Deed under Ex.A.2, since Balasubramanian, the vendor under Ex.A.2 had inherited ½ share along with other sharers, who sold the property under Ex.A.1, from their ancestors in view of a judgment of a Civil Court. 8. As per Ex.A.2, Sale Deed, dated 17.03.1984, the Respondent/Plaintiff purchased 1526 sq.ft(3 ½ cents) in New S. No.356/1 in Kodumudi Village from the said sharer Balasubramanian. As the Respondent/Plaintiff came to know that the said Balasubramanian, as co-sharer got ½ share in the property, subsequently, the Respondent/Plaintiff paid an additional amount of Rs.9,000/- as consideration for the said ½ share and the said Balasubramanian executed Sale Deed, Ex.A.2 for his ½ share in respect of the property described in Ex.A.1. Therefore, it is made clear that the Respondent/Plaintiff has established her title in respect of Plaint ‘A’ and ‘C’ schedule property, an extent of 7 cents of land described in Exs.A.1 and A.2. Both the First Appellant/D1 and the Respondent/Plaintiff were given right in the 18 links breadth, North-South common cart track, left by the vendors, which is stated as the western boundary of the lands sold under Ex.A.1 and B.1 respectively to the Plaintiff and the First Defendant. 9. Both the First Appellant/D1 and the Respondent/Plaintiff were given right in the 18 links breadth, North-South common cart track, left by the vendors, which is stated as the western boundary of the lands sold under Ex.A.1 and B.1 respectively to the Plaintiff and the First Defendant. 9. However, the First Appellant/D1, subsequently, on 29.11.1982 got Ex.B.2, Sale Deed executed from the wife of late Palaniappan and others, with an incorrect and false averments, so far as it relates to the southern portion of the common cart track, which has been stated as western boundary to the property sold under Ex.B.1. Therefore, this Court is of a considered view that the Respondent/Plaintiff has established her title to the ‘A’ and ‘C’ schedule property and also has right in the common cart track in ‘B’ schedule property under Exs.A.1 and A.2. It is clear that the First Appellant/D1 cannot claim exclusive right to the southern portion of the common cart track described as ‘B’ schedule property by virtue of the subsequent Sale Deed, Ex.B.2, dated 29.11.1982. It is an admitted fact that the First Appellant/D1 and her vendors were parties to Ex.B.1, dated 27.08.1976, wherein the 18 links cart track on the west of the property sold has been stated as common cart track and the First Appellant/D1 has been given right to use the cart tack under Ex.B.1. The Plaintiff got similar right to use the North/South common cart track under Ex.a.1, Sale Deed, dated 27.11.1976 from the common vendors. Hence, vendors in Ex.B.2 had no legal right to sell a portion of the common cart track, described as ‘B’ schedule property in the Plaint to the First Appellant/D1, detrimental to the right of the Respondent/Plaintiff. Similarly, the First Appellant/D1 cannot claim exclusive right to the ‘B’ schedule property. The Appellants/Defendants are estopped from raising a plea claiming exclusive right against their own Sale Deed, Ex.B.1. On the aforesaid facts and circumstances, I am of the considered view that the Respondent/Plaintiff has established her title to the property and that the Courts below have not shifted the burden on the Appellants/Defendants, as alleged by them, accordingly,. The substantial question No.1 is answered in favour of the Respondent and against the Appellants herein. 10. On the aforesaid facts and circumstances, I am of the considered view that the Respondent/Plaintiff has established her title to the property and that the Courts below have not shifted the burden on the Appellants/Defendants, as alleged by them, accordingly,. The substantial question No.1 is answered in favour of the Respondent and against the Appellants herein. 10. Substantial Question of Law No.2: The Appellants have raised the second substantial question of law stating that the Courts below have committed error in law, relying upon the Commissioner’s Report, overlooking the discrepancy in the plan submitted by the Firka Surveyor and the Municipal Surveyor, who had assisted the Commissioner during his visit. The main dispute in the Suit is with regard to the ‘B’ schedule property common cart track and also the alleged encroachment made by the Appellants/Defendants in the ‘A’ schedule of property. In the Sale Deed, Ex.A.1, the schedule of property is described by four boundaries, accordingly, the property is on the North of the property purchased by Mahaboobi, the First Appellant/First Defendant under Ex.B.1, on the East of 18 links breadth common cart track left by the vendor, south of the property purchased by one Sangili and West of Sundaram Iyer’s property and the extent is stated as 7 cents of land in S.No.571 of Kodumudi Village. It is not in dispute that both parties have purchased their respective properties from a common vendors, under Exs.A.1 and B.1. The extent and the description of properties under Ex.A.1 as well as Ex.B.1 is not in dispute. 11. As per Sale Deed, Ex.B.1, dated 27.08.1976, the First Appellant, Mehaboobi purchased 12 cents of land in S.No.571, out of a total extent of 3.77 acres of land from the vendors K.S. Palaniappan and three others. It is seen that the First Appellant/First Defendant, subsequently, under the Sale Deed Ex.B.2, dated 29.11.1982, purchased property, which is a portion of the North-South common cart track left by the common vendors, under Ex.B.1 and Ex.A.1. However, the Sale Deed, Ex.B.2 was executed only in the year 1982 by Neelambal wife of late K.S.Palaniappan and three other persons, under which the First Appellant/D1 purchased a vacant land measuring North-South 45 feet, East-West 18 feet in S.No.571, out of the total extent of 3.77 acres. As per Ex.B1, the western boundary sold has been described as 18 links North-South common cart track. 12. As per Ex.B1, the western boundary sold has been described as 18 links North-South common cart track. 12. It is an admitted fact that both First Appellant/D1 and the Respondent/Plaintiff have purchased their respective property only from common vendors. Under Ex.B.1, dated 27.08.1976, the First Defendant purchased 12 cents of land, and on 27.11.1976, the Respondent/Plaintiff purchased 7 cents of land, immediately on the north of the property purchased by the First Appellant/D1 under Ex.B.1 and for both the properties, the western boundary is stated as the North-South 18 links common cart track left by the vendors. It is also not in dispute that the First Appellant/D1, Respondent/Plaintiff and others were given cart track right by the common vendors. 13. Mr. T.R. Mani, learned Senior Counsel appearing for the Appellants submitted that the Respondent/Plaintiff has raised inconsistent plea in the Plaint and according to him, the Court below have not appreciated the evidence properly. The learned Senior Counsel for the Appellants further contended that the Courts below have not considered the fact that in the State of Tamil Nadu, there could be no water course run from East to West. According to the learned Senior Counsel, the concurrent finding of the Courts below is not based on evidence, hence, the same has to be construed as perverse and liable to be set aside. Learned Senior Counsel appearing for the Appellants drew the attention of this Court to this Court to the original Plaint and argued that the amendment in the Plaint was not made as per procedure known to law and on that ground also argued for allowing the Second Appeal. 14. Per contra, Mr. S.V. Jayaraman, learned Senior Counsel appearing for the Respondent/Plaintiff submitted that the concurrent finding of the Courts below, based on evidence, cannot be construed as perverse and according to him, there is no substantial question of law to be decided, as contemplated under Section 100, C.P.C. and hence, the Second Appeal is liable to be dismissed and also submitted further that the amendment of the Plaint was made properly before the Trial Court, which cannot be questioned by the Appellants in the Second Appeal. 15. The following decisions were cited by the learned Senior Counsel, to enlighten this Court on the legal aspects: 1. Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749 ; 2. Siviseshamuthu v. Gopalakrishna, AIR 1963 Madras 147; 3. 15. The following decisions were cited by the learned Senior Counsel, to enlighten this Court on the legal aspects: 1. Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749 ; 2. Siviseshamuthu v. Gopalakrishna, AIR 1963 Madras 147; 3. P.K.A. B. Coo. p Society v. Govt, of Palestine, AIR (35) Privy Council 207; 4. Jagdish Narain v. Ahmed Khan, AIR (33) 1946 Privy Council 59; 5. Hem Chand v. Pearey Lal, AIR (29) 1942 Privy Council 64; 6. U.R. Virupakshaiah v. Saravamma, 2009 (1) CTC 376; 7. Sugani, Mst. V. Rameshwar Das, 2006 (3) CTC 108; 8. Ciddagunta Subrahmanyam Reddy v. Namakari Muni Reddy, 2007 (5) CTC 239. 16. Learned Senior Counsel appearing for the Appellants/Defendants submitted that the Plaint was not properly amended, as per law. According to the learned Senior Counsel for the Respondent/Plaintiff, there was no error in amending the Plaint and contended that a fresh defence cannot be raised by the Appellants in the Second Appeal, disputing the amendment made before the trial Court. It is seen from the original Plaint that the amendment was carried out, as per the orders passed by the Trial Court in I.A. No.385 of 1991, dated 03.02.1992 and in I.A. No.349 of 1992, dated 15.07.1992. Admittedly, the amendment made in the Plaint before the Trial Court was not challenged by the Appellants, who were Defendants in the Suit, hence, as contended by the learned Senior Counsel appearing for the Respondents/Plaintiff, it is not open to the Appellants to challenge the amendment, made as per the orders passed in Interlocutory Application in the year 1992 in this Second Appeal. 17. If it is purely a question of law, that can be raised at any stage before the Court when the matter is pending, however, a mixed question of law and fact can be raised only at the appropriate stage. In a Second Appeal, a new defence cannot be raised, without raising the same before the Court below, based on mixed question of law and facts, when there is concurrent finding on the factual aspect, based on evidence. Similarly, if there is any amendment made as per order passed in an Interlocutory Application, without challenging the order at the appropriate stage, the same cannot be challenged in the Second Appeal. Similarly, if there is any amendment made as per order passed in an Interlocutory Application, without challenging the order at the appropriate stage, the same cannot be challenged in the Second Appeal. This Court is of the considered view that the Appellants/Defendants are not entitled to challenge the amendment made in the Plaint, pursuant to the orders passed by the Trial Court, in the Second Appeal, without challenging the amendment at the appropriate and stage, in accordance with law. 18. It is an admitted fact that both the Plaintiff and the First Defendant purchased their respective properties under Exs.A.1 and B.1 in the year 1976 only from common vendors. It is not in dispute that 12 cents of land in S.No.571 on the south was purchased by the First Appellant/D1 under Ex.B.1 on 27.11.1976, the Respo9ndent/Plaintiff purchased the schedule ‘A’ and ‘C’ of the suit property, an extent of 7 cents, under Ex.A.1, in S.No.571, which is admittedly on the North of the First Appellant’s property. In Ex.A.1, Sale Deed, four boundaries are given by the same vendors as North of the property purchased by Mehaboob Bibiammal, the First Appellant/D1, south of the property of one Sangili, West of Sundaram Iyer’s property and East of 18 links width of cart track left by the vendors. In the Sale Deed, Ex.A.1, the vendors have specifically stated that the Respondent/Plaintiff has been given right in the 18 links breadth common north-south cart track left by the vendors. Even in Ex.B.1, Sale Deed, the First Appellant/D1 was given right in the North-South cart track. The common cart track runs up to the East-West channel on the south, hence, the western boundary of the property sold under Ex.B.1 to the First Appellant/D1 is stated as the North-South cart track. 19. As per Ex.B.1, 12 cents in S.No.571, out of a total extent of 3.77 acres of land was purchased by the Mehaboob Bibiammal, the First Appellant herein. In the Sale Deed, Ex.B.1, the property sold by the vendors in favour of the First Appellant/First Defendant has been described on the south of the vendors remaining property, since the property was subsequently sold to the Respondent/Plaintiff under Ex.A.1 and the western boundary of the property sold to Mehaboob Bibiammal is stated as 18 links breadth North-South common cart track left by the vendors. Similarly, in Ex.A.1, Sale Deed of the Respondent/Plaintiff, the 18 links cart track is stated as the western boundary. The right to use the cart track was given to both the purchasers, Mehaboob Bibiammal, under Ex.B.1 and Angammal, the Plaintiff, under Ex.A.1. Therefore, it is clear that the Appellants/Defendants cannot claim exclusive right for the land, that was left as 18 links North-South common cart track, by the vendors. 20. However, as per Ex.B.2, subsequent document, dated 29.11.1982, Neelambal, wife of late K.S. Palaniappan and others executed the Sale Deed, whereby a portion of the cart track, shown as western boundary to the property sold under Ex.B.1, was sold with an incorrect and false averments. In Ex. B.1, Sale Deed, ‘B’ schedule property has been shown as common cart track and specific right to use the cart track was also given to the First Appellant/D1 under Ex.B.1. Similar cart track right has been given to the Respondent/Plaintiff under Ex.A.1, dated 27.11.1976. In both Ex.A.1 and Ex.B.1, the western boundary of the properties sold is stated as the 18 links north south cart track left by the vendors. However, detrimental to the rights of the Respondent/Plaintiff, wife of late Palaniappan and others and the First Appellant/D1, have made incorrect and false averments, in Ex.B.2, Sale Deed, dated 19.11.1982, thereby the said vendors sold a portion of the cart track to the First Appellant/D1, which is not legally sustainable and binding on the Respondent/Plaintiff. 21. It is an admitted fact that for the property sold under Ex.B.1, the western boundary is stated as 18 links North-South cart track, but under Ex.B.2, suppressing the existence of the cart track, the eastern boundary of the property, sold under Ex.B.2 is stated as the property sold to Mehaboob Bibiammal, under Ex.B.1. Therefore, it is crystal clear that a wrong description of the property is given in the subsequent Sale Deed, Ex.B.2, that was executed in the year 1982. However, the Appellant/D1 is not entitled to claim exclusive right to the common cart track, by virtue of the Sale Deed, Ex.B.2. 22. In Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749 , the Hon’ble Supreme Court has held as follows: “The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. 22. In Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749 , the Hon’ble Supreme Court has held as follows: “The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. ‘Decision based on no evidence’, not only means cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” It has been made clear that the paramount overall consideration being the need for striking judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 23. Mr. S.V. Jayaraman, learned Senior Counsel appearing for the Respondent/Plaintiff drew the attention of this Court to the decision of the Hon’ble Apex Court U.R. Virupakshaiah v. Sarvamma, 2009 (1) CTC 376, wherein the Hon’ble Apex Court has held that any substantial question of law suo moto or at the Appellant before it, the Court shall give an opportunity for hearing the Appellant before framing the said substantial question of law. Accordingly, no other substantial question of law has been framed. 24. In Ciddagunta Subrahmanyam Reddy v. Namakari Muni Reddy, 2007 (5) CTC 239, the Hon’ble Supreme Court has held that question formulated at time of hearing of Appeal cannot be termed as substantial question of law, relying on the decision, Thiyagarajan v. Sri Venugopalaswami B. Koil, 2004 (2) CTC 354. 25. In the instant case, no additional substantial question of law has been raised by the Appellants. The Court is also of the view that the earlier substantial questions raised are sufficient to decide the Second Appeal, based on the pleadings, findings of the Courts below and the evidence available on record, both oral and documentary. 26. In Sugani, Mst. 25. In the instant case, no additional substantial question of law has been raised by the Appellants. The Court is also of the view that the earlier substantial questions raised are sufficient to decide the Second Appeal, based on the pleadings, findings of the Courts below and the evidence available on record, both oral and documentary. 26. In Sugani, Mst. V. Rameshwar Das, 2006 (3) CTC 108, the Hon’ble Apex Court has held that the High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 27. The Advocate Commissioner, who inspected the property had filed his report and sketch as Exs.C.1 and C.2 and after his re-inspection, he filed his subsequent report and sketch prepared by him, which were marked as Exs.C.3 and C.4. It is not in dispute that the Respondent/Plaintiff has constructed her house in the property purchased under Ex.A.1 and she has also produced House Tax Receipts as Exs.A.3 and A.7 to establish her possession and enjoyment of the property. There is no dispute with regard to the extent, description and four boundaries of the property under Ex.A.1, Plaintiff’s Sale Deed, similarly, the extent, description and four boundaries of the property in Ex.B.1, First Defendant’s Sale Deed is also not in dispute, however, under Ex.B.2, in the year 1982, the vendors therein have described the property sold under the deed, Ex.B.2, contrary to the earlier Sale Deeds, Ex.A.1 and Ex.B.1 executed by them in the year 1976. The incorrect averments made in Ex.B.2, in the year 1982 with regard to the southern portion of North-South 18 links common cart track left by the vendors is not binding on the Respondent/Plaintiff as found by the Courts below. Having specifically stated the 18 links North-South common cart track in Exs.A.1 and B.1, as western boundary and provided right in the common of cart track to both the First Appellant under Ex.B.1 and Respondent, under Ex.A.1 in the year 1976, the vendors have no subsisting right to sell the southern portion of the cart track in favour of the First Appellant in the year 1`982 under Ex.B.2. Similarly, the improper an incorrect averments made in Ex.B.2 will not make the cart track right given to the First Appellant/D1 under Ex.A.1, as an absolute right, detrimental to the cart track right given to the Respondent/Plaintiff and others. 28. In the grounds of Appeal, the Appellants have raised a defence that others, who were given similar cart track right were not impleaded as parties, hence, the Suit is bad for non-jointer of necessary parties. It has been specifically established by the Respondent/Plaintiff that she has been given right in the North-South cart track, described as ‘B’ schedule of property in the plaint and as per the alleged cause of action, the Appellants/Defendants alone causing interference, by way of making obstacles in the cart track, hence, the Suit is maintainable and others need not be impleaded in the Suit. Hence, the Suit is not bad on the ground on non-joinder of necessary parties. 29. The title to the property purchased under Ex.A.1 by the Respondent/Plaintiff is not in dispute, hence, she is entitled to declaration of title to the property. It is a clear case, that the Appellants/Defendants have no right to encroach and put up any construction in the 7 cents of land purchased by the Respondent/Plaintiff. Based on the Commissioner’s Reports and the sketches prepared by the Advocate Commissioner and Surveyor, the Courts below have concurrently held that the Respondent/Plaintiff is entitled to mandatory injunction. The mandatory injunction sought for against the Defendants is to remove the encroachment so made in the said property covered under Ex.A.1. As cart track right has been given specifically to the Respondent/Plaintiff under Ex.A.1 and also the first Defendant under Ex.B.1, based on the in correct and false averments made in Ex.B.2 in the year 1982, the Appellants cannot deny the cart tract right of the Respondent/Plaintiff, that was already granted under the aforesaid Plaintiff’s document. 30. As cart track right has been given specifically to the Respondent/Plaintiff under Ex.A.1 and also the first Defendant under Ex.B.1, based on the in correct and false averments made in Ex.B.2 in the year 1982, the Appellants cannot deny the cart tract right of the Respondent/Plaintiff, that was already granted under the aforesaid Plaintiff’s document. 30. As per “The Law Lexicon” by P. Ramanatha Aiyar, “Fraudulent misrepresentation” has been defined as thus: “A false statement as to material fact, made with intent that another rely thereon, which is believed by other party and on which he relies and by which he is induced to act and does act to his injury, and statement is fraudulent if speaker knows statement to be false or if it is made with utter disregard to its truth or falsity, as held in Cormack v. American Underwriters Corp., (288 NE 2d 634).” As per the above definition, the averments made in Ex.B.2 in the year 1982 against the North-South 18 links cart track and the rights given to the Plaintiff, First Defendant and others in the year 1976 has to be construed only as a fraudulent misrepresentation. 31. In the aforesaid facts and circumstances, I am of the considered view that the Courts below have not shifted any burden on the Appellants/Defendants to prove the case of the Plaintiff and further, the Respondent/Plaintiff has established her title to the property conveyed under Ex.A.1. As per Ex.A.1, Sale Deed, the Respondent/Plaintiff is the absolute owner of the 7 cents of land purchased by her from the common vendors. As a treasonable person, to avoid dispute, she has also paid subsequently consideration for the undivided half share to the other co-sharer. ‘A’ and ‘C’ schedule properties are covered by ERx.A.1 Sale Deed, which is not in dispute. Similarly, the cart track right given in the ‘B’ schedule property cannot be denied by the subsequent document, Ex.B.2, as the same is not legally sustainable. There is no error or infirmity in the concurrent finding of the Courts below, so as to hold that the Courts below have overlooked any discrepancies in the plan submitted by the Firka Surveyor and the Municipal Surveyor, who had assisted the Commissioner during his visits and in the preparation of the report and accordingly, the substantial question of law No.2 is answered in favour of the Respondent/Plaintiff and against the Appellants. 32. 32. In the result, confirming the Judgment and Decree passed by the Courts below, this Second Appeal is dismissed. However, there is no order as to costs.