JUDGMENT RAGHUBIR DASH, J. 1. This Second Appeal is against the judgment and decree dated 17.7.1999 and 23.7.1999, respectively, passed by the learned Additional District Judge, Bhadrak in T.A. No. 13/27 of 1983/1988 confirming the judgment and decree dated 17.12.1987 and 4.1.1988, respectively, passed by the learned Munsif, Bhadrak in O.S. No. 257 of 1985-I dismissing the suit. The plaintiff in the suit, Parbati @ Para Dei is the original Appellant in this Second Appeal. She filed the suit for declaration that despite of the wrong recording in the M.S.R.O.R. in the names of the defendants and/or their ancestors she has got right, title and interest in the suit land appertaining to M.S. Plot No. 3793 under M.S. Khata No. 138 of Mouza Baralpokhari measuring Ac.0.03 decimals corresponding to C.S. Plot No. 3520 under C.S. Khata No. 29 of the same mouza. Further prayer made by her is for confirmation of her possession and if, found dispossessed during pendency of the suit, for recovery of possession. The original Respondents 1 to 13 in this Second Appeal are the defendants before the learned trial court arrayed in the same order. 2. Plaintiff’s case, in short, is that one Budhi Barik was the stitiban rayat in respect of R.S. Plot No. 3847 measuring Ac.1.48 decimals out of which he sold Ac.0.08 acre to one Maguni Behera vide registered sale deed No. 171/10.1.1927. Since the C.S. R.O.R. was finally published in the year 1928, soon after the sale transaction, the same could not be reflected in the C.S. R.O.R. But Maguni remained in possession of his purchased land since the date of his purchase. In the C.S. R.O.R. published in 1928, Ac.0.08 decimals of land purchased by Maguni stood recorded under Plot Nos. 3524 (Ac.0.05) and 3523 (Ac.0.04) of C.S. Khata No. 29 in the name of Panu Barik who is the father of Plaintiff’s vendor Budhi Barik. In 1954 Maguni filed T.S. No. 122/1954-I in the Court of Munsif, Bhadrak for declaration of his title with respect to the said C.S. Plot Nos. 3523 and 3524 as well as for eviction of some other defendants in that suit from a portion of one of the plots. In that suit some of the present defendants and the ancestors of rest of them were made proforma defendants. The suit was decreed in Maguni’s favour. 3523 and 3524 as well as for eviction of some other defendants in that suit from a portion of one of the plots. In that suit some of the present defendants and the ancestors of rest of them were made proforma defendants. The suit was decreed in Maguni’s favour. Some days after the decree was passed in that suit, there was an oral exchange between Maguni, on one hand, and the proforma defendants of that suit, on the other. In terms of the oral exchange Maguni gave his C.S. Plot No. 3523 and got in exchange C.S. Plot No. 3520 measuring Ac.0.03 decimals from the other side. After getting delivery of possession of C.S. Plot No. 3520 (hereinafter referred to as the suit plot) Maguni continued to remain in possession thereof by constructing a thatched house thereon, and let it out to others on rent. After Maguni’s death his widow Nandi, the only successor of Maguni, sold Ac.0.02 decimals out of the suit Plot No. 3520, along with C.S. Plot No. 3524 and some other undisputed plots, by executing registered sale deed No. 17195/25.11.1969 in favour of the Plaintiff Parbati @ Para Dei who is none other than the granddaughter (daughter’s daughter) of Maguni and Nandi. The Plaintiff being the only successor in interest of Maguni and Nandi inherited the balance one decimal out of the suit plot and thus, became the owner in possession of the entire suit plot. It is also the Plaintiff’s case that C.S. Plot Nos. 3523 and 3524 correspond to M.S. Plot Nos. 3791 and 3792 and that while M.S. Plot No. 3792 stands recorded in Plaintiff’s name, the other plot stands recorded in the names of the defendants/their predecessors-in-interest which supports the Plaintiff’s stand that Maguni gave his C.S. Plot No. 3523 (corresponding to M.S. Plot No. 3791) in exchange for C.S. Plot No. 3520 (corresponding to M.S. Plot No. 3793). It is also pleaded by the Plaintiff that since the suit land has been in possession of her ancestors since 1955 and after them in her possession to the full knowledge of the defendants or their ancestors without any interruption she has acquired title therein by way of adverse possession. 3. Defendant Nos. It is also pleaded by the Plaintiff that since the suit land has been in possession of her ancestors since 1955 and after them in her possession to the full knowledge of the defendants or their ancestors without any interruption she has acquired title therein by way of adverse possession. 3. Defendant Nos. 1 to 5 and D.10 jointly filed a written statement denying all the plaint averments and taking the specific stand that suit Plot No. 3520 stood recorded as ‘rasta’ in the name of Chandra Barik but Chandra Barik had no exclusive right over it in as much as the land is being used as ‘Rasta’ by all the co-sharers of Chandra Barik. Their further stand is that at no point of time Maguni got the suit Plot in exchange of his C.S. Plot No. 3523. It is denied that Plaintiff’s ancestor Maguni had raised any house over the suit plot and asserted that the defendants have all along been using the land appertaining to the suit plot as road having ingress to and egress from their dwelling houses. It is denied that C.S. Plot No. 3523 has been recorded in the names of the defendants on the basis of the exchange. But they admit that their residential house stands on C.S. Plot No. 3523 since time immemorial. It is also asserted that M.S. Plot No. 3793 which correspondents to suit Plot No. 3520 is correctly recorded in the names of the defendants/ their ancestors. 4. Learned trial court dismissed the suit observing, inter alia, that the Plaintiff could not prove her right, title, interest and possession over the suit plot, nor could she prove the plea of adverse possession. Learned lower appellate court confirmed the findings of the learned trial court with further observation that the Plaintiff also failed to prove the oral exchange as claimed by her as a result of which her prayer for adverse possession is not sustainable. 5. The Second Appeal has been admitted on the following substantial questions of law: “(1) Whether in view of the pleading about acquisition of Title by adverse possession if non-framing of issue in this respect has resulted prejudice to the Plaintiff. 5. The Second Appeal has been admitted on the following substantial questions of law: “(1) Whether in view of the pleading about acquisition of Title by adverse possession if non-framing of issue in this respect has resulted prejudice to the Plaintiff. (2) Whether in view of the case of the Plaintiff that the defendants by their act made exchange of the Plot No. 3520 in favour of Maguni Behera and Maguni Behera had exchanged his purchased land Plot No. 3523 in favour of defendants and Maguni Behera had constructed house on Plot No. 3520 and Maguni Behera and the defendants had constructed house on their respective exchanged lands, in other words the exchange had been acted upon, the defendants are estopped to deny the truth of the exchange. (3) Whether the record of right creates or extinguishes the title of Maguni Behera in respect of C.S. Plot No. 3520 which corresponds to M.S. Plot No. 3793 under M.S. Khata No. 138. (4) Whether in view of the fact that after estate abolition during 1963-64 the State had realized rent for eight decimals of land for C.S. Khata No. 29/4 in the name of Maguni Behera has great bearing for just decision of the case and the effect of such documentary evidence having not been considered if there has been miscarriage of justice. (5) If the trial court is justified in drawing adverse inference by observing that under Ext.5 only A0.02 dec. was sold forgetting that the plaint case is that by purchase of A0.02 decimals and by inheritance A0.01 decimals the plaintiff has acquired title in respect of plot no. 3520 which is A0.03 decimals as per M.S. record of right and if such wrong inference has vitiated the decree passed by the forums below.” 6. Learned counsel for the appellants submits that the learned appellate court fell into a trap of errors by not at all taking into consideration number of vital undisputed facts. According to him, the fact that Budhi Barik, who is the predecessor in interest of the defendants, executed a registered sale deed in the year 1927 in favour of Maguni Behera alienating Ac.0.08 out of R.S. Plot No. 3847 is not in dispute. It is also not in dispute that in the C.S. R.O.R. the land which was purchased by Maguni Behera stands recorded as C.S. Plot Nos. 3523 (Ac.0.03) and 3524 (Ac.0.05). It is also not in dispute that in the C.S. R.O.R. the land which was purchased by Maguni Behera stands recorded as C.S. Plot Nos. 3523 (Ac.0.03) and 3524 (Ac.0.05). It is also admitted that over one of these two Plots, i.e., Plot No. 3523, the defendants have constructed their dwelling house. It is submitted, had there been no exchange of land as claimed, M.S. Plot No. 3791 which corresponds to C.S. Plot No. 3523 could not have been recorded in the names of the defendants. In addition to all these, it is urged, the defendants having taken the stand that their ancestors had constructed their residential house over C.S. Plot No. 3523 which is claimed by the plaintiff to have been given to the defendants in exchange of the suit Plot No. 3520, the inevitable conclusion is that the oral exchange had been acted upon. Further submission made by the learned counsel for the appellants is that though the plaintiff examined witnesses and exhibited documents including series of rent receipts to prove that she had been in possession of Ac.0.08 decimals of land and the defendants having not adduced any evidence, the learned courts below ought to have raised adverse inference against the defendants. It is also submitted that though the plaintiff pleaded acquisition of title by adverse possession no issue was framed by the learned trial court for which the plaintiff was highly prejudiced. It is also contended that the learned lower appellate court’s observation the plea of exchange having not been proved the plea of adverse possession is not admissible is erroneous and illegal. 7. Learned counsel for the respondents, on the other hand, submits that the plaintiff having failed to establish her own case, she could not have succeeded in the suit merely because the defendants did not adduce any evidence in the suit. It is also argued that this being a Second Appeal and there being no substantial questions of law involved in the appeal, it is not proper to re-appreciate the evidence to find out whether the findings of the learned courts below are erroneous. Even if the concurrent findings of the learned courts below are erroneous, it is submitted, the same cannot be interfered with in a Second Appeal if the same do not suffer from perversity which is not there in the case in hand. Even if the concurrent findings of the learned courts below are erroneous, it is submitted, the same cannot be interfered with in a Second Appeal if the same do not suffer from perversity which is not there in the case in hand. The substantial questions of law on which the Second Appeal has been admitted have been extracted from the Appeal Memo. They do not appear to have been properly worded. But, the import of the substantial question No. 2, considered along with the arguments advanced by the learned counsel for the appellants, is that the learned courts below have not considered material evidences on the alleged exchange of land as a result of which they have made a wrong approach to the real dispute between the parties resulting in injustice to the Plaintiff. 8. The contention that the plaintiff’s suit based on the alleged exchange is bound to be decreed if all the admitted facts are considered in their proper prospective needs careful examination. No doubt, the contesting defendants in their W.S. have denied the averments made in each paragraph of the plaint. However, they have not made clear averment claiming title over Plot No. 3523. They have simply stated that they have got their residential house on this plot since time immemorial. It is not specifically denied that the Ac.0.08 decimals of land that Maguni had purchased in the year 1927 from Budhi Barik, who is undisputedly the common ancestor of the defendants, stood recorded in C.S. Khata No. 290 as Plot Nos. 3523 and 3524. Therefore, there is force in the argument of the learned counsel for the appellants that unless C.S. Plot No. 3523 had been given to the defendants/their predecessors in exchange suit Plot No. 3520, the defendants could not have constructed their dwelling house over that plot. So far suit Plot No. 3520 is concerned, it is not in dispute that it corresponds to M.S. Plot No. 3793. According to the defendants this suit plot is used as road whereas plaintiff’s case is that after getting this plot in exchange of her C.S. Plot No. 3523 Maguni constructed a house thereon and let it out to others. But according to the defendants this is being used as a road. Ext.8 is a certified copy of C.S. Khatian showing that Plot No. 3520 stood recorded as road. But according to the defendants this is being used as a road. Ext.8 is a certified copy of C.S. Khatian showing that Plot No. 3520 stood recorded as road. But, M.S. Khatian No. 138 (Ext.7) reflects that over M.S. Plot No. 3793 which corresponds to suit Plot No. 3520, there exits a dwelling house. Thus, the M.S. Khatian, Ext.7, corroborates the plaintiff’s case to some extent. Had there been proper investigation during the trial to find out whether plaintiff’s house stands on suit Plot No. 3520 or the same is being used as a road then the real dispute between the parties would have been resolved. It is true that the plaintiff did not make any prayer to the trial court to issue a commission to make local investigation under Order 26 Rule 8 C.P.C. But, even without such a prayer the learned trial court could have suo motu issued a commission to a survey knowing person for local investigation to resolve the real dispute. The real dispute is of such a nature that ordinary witnesses available to be examined by the parties are not expected to possess the ability to depose as to whether the suit Plot No. 3520 corresponds to M.S. Plot No. 3793 and the same is being used as a road, or, the plaintiff’s house stands thereon. This can be testified only by a survey knowing person who, after taking measurement at the spot, demarcates the location of the suit plot. Learned courts below assessed the oral evidence of witnesses examined by the plaintiff and concluded that the same was not sufficient to prove the plaintiff’s case on the alleged exchange. The real dispute is over the exchange of plots between Maguni and the defendants/their predecessors which allegedly took place in or around 1955. According to the plaintiff, it was an oral exchange. So, documentary evidence will not be available. Therefore, in such cases glaring circumstances are to be taken into consideration. If it is found proved that the suit plot No. 3520 has been in the possession of Maguni, and, after him his successors in interest, then there would be no room for any doubt that the exchange had actually taken place. So, documentary evidence will not be available. Therefore, in such cases glaring circumstances are to be taken into consideration. If it is found proved that the suit plot No. 3520 has been in the possession of Maguni, and, after him his successors in interest, then there would be no room for any doubt that the exchange had actually taken place. The learned courts below did not try to resolve the dispute keeping this aspect in mind and this appears to have occurred because there is no issue on the oral exchange which is claimed by the plaintiff but denied by the defendants. The learned courts below considered Issue No. 5 to be the most vital of all the issues. Issue No. 5 runs as follows: “Has the Plaintiff acquired right, title and interest over the suit properties?” It may be validly argued that this issue would cover the issue on the alleged exchange. But instead of framing this issue, it would have been better if a specific issue on the question of exchange of lands between Maguni and the defendants/their predecessors was framed. 9. There is force in the submission made by the learned counsel for the appellants that when there is no specific denial in the W.S. to the plaintiff’s assertion that the 8 decimals of land purchased by Maguni from out of R.S. Plot No. 3847 was recorded in the subsequent settlement as C.S. Plot Nos. 3523 and 3524 and when it is sufficiently proved that Plot No. 3524 has been in plaintiff’s possession and Plot No. 3523 is in the possession of the defendants, the most possible conclusion would be that plaintiff’s plot No. 3523 went to the defendants whereon they have constructed their dwelling house and in exchange thereof the plaintiff got suit Plot No. 3520. But, unless it is shown that C.S. Plot No. 3520, corresponding to M.S. Plot No. 3793, has been in the possession and enjoyment of Maguni and his successor in interest there cannot be conclusive proof that the plaintiff got C.S. Plot No. 3520 in exchange of C.S. Plot No. 3523. As already stated, there is dispute between the parties as to how the suit Plot No. 3520 is in use. Defendants claim that it is used as a road whereas plaintiff claims that there exists her house on the suit plot. As already stated, there is dispute between the parties as to how the suit Plot No. 3520 is in use. Defendants claim that it is used as a road whereas plaintiff claims that there exists her house on the suit plot. It is true that successive settlements have taken place after Maguni purchased 8 decimals of land from Budhi Barik and yet the records of right in respect of C.S. Plot No. 3520, corresponding to M.S. Plot No. 3793, stands recorded in the names of the successors of Budhi Barik. But merely on that ground it cannot be concluded that there was no exchange of land as claimed by the plaintiff. 10. Learned courts below have toiled hard on deciding whether the earlier suit (T.S. No. 122 of 1954-I) operates as res judicata. They have also made lengthy discussion on Nandi Dei alienating two decimals of land appertaining to suit plot No. 3520 though the total area of the said plot is three decimals without mentioning it in the sale deed that a part of the suit plot was alienated to the plaintiff and without stating therein that the suit plot was given to Maguni in exchange of Maguni’s land pertaining to C.S. Plot No. 3523. Considering the nature of the real dispute between the parties the effect of the earlier suit as well as the sale transaction in respect of a part of the suit plot No. 3520 does not appear to be very much important. Fate of the plaintiff’s case depends on the plea of exchange. If that plea fails, the plaintiff’s suit is liable to be dismissed. That apart, the plaintiff does not appear to have pleaded that the earlier suit operates as res-judicata. As reflected in the judgment of the learned lower court the judgment in the earlier suit has been exhibited with a view to taking the stand that it operates as estoppel against the defendants, wherein Maguni had sought for declaration of title in respect of the plaint schedule property which is the eight decimals of land Maguni had purchased from Budhi Barik out of R.S. Plot No. 3847 which, in the subsequent settlement, has been recorded under two plots i.e., C.S. Plot Nos. 3523 and 3524. 3523 and 3524. But the learned lower courts have not considered whether the defendants in the present suit are estopped from denying the fact that C.S. Plot No. 3523, which now stands recorded in the name of the defendants was a portion of the eight decimal of land which Maguni had purchased from Budhi Barik in the year 1927. 11. Finding of the First Appellate Court upon a question of fact is final if that court had before it evidence proper for its consideration in support of its findings. But under the aforestated facts and circumstances, the proper evidence is the evidence of a survey knowing person to ascertain whether over the suit plot there exists any house belonging to the Plaintiff. 12. Thus, it is found that the learned courts below have not attempted to decide the real dispute between the parties which can be effectively decided with the help of a Survey Knowing Person making demarcation of the suit C.S. Plot No. 3520 corresponding to M.S. Plot No. 3793. The courts below did not have proper evidence to support their findings that the plaintiff has no title in the suit plot. Therefore, this Court considers it to be in the interest of justice to remand the case. In view my conclusion that the matter needs to be remanded the other questions are considered not necessary to be answered. 13. The suit is of the year 1985. If the lower appellate court would have been of the view that framing of an issue on the alleged exchange of land was necessary and appointment of a Survey Knowing Commissioner was essential then it could have done so taking resort to Rule 25 of Order 41 C.P.C. without making an open remand under Rule 23 A. Therefore, in order to avoid unnecessary delay it is considered necessary to remand the matter to the learned lower appellate court who, after hearing the parties, and after framing issue on the alleged exchange of land shall refer the same, for trial, to the learned trial court with specific direction to make a local investigation by a Survey Knowing person complying with other directives prescribed under Order 41, Rule 25 of C.P.C. 14. In the result, the Second Appeal is allowed. The judgment and decree of the learned first appellate court are set aside. In the result, the Second Appeal is allowed. The judgment and decree of the learned first appellate court are set aside. The matter is remanded to the learned lower appellate court for fresh disposal of the First Appeal in accordance with the observation made herein above. However, it is made clear that no observation made in this judgment shall be deemed to have been made on the merits of the case.