JUDGMENT Suman Shyam, J. 1. This Second Appeal has been preferred against the judgment and decree dated 24.10.2011 passed by the learned Civil Judge, Dhubri in Title Appeal No. 6/2009 dismissing the appeal thereby affirming the judgment and decree dated 29.11.2008 passed by the learned Munsiff No. 1, Dhubri in Title Suit No. 96/2000. 2. The brief facts of the case, as set out in the plaint, is that Amina Khatun Bewa, the deceased mother of the plaintiff and the defendant Nos. 1, 2 and 3, had a plot of land measuring 15 L covered by tenancy khatian No. 517 pertaining to dag No. 776 under landlord khatian No. 516 situated at Bidyapara, Ward No. 10, Dhubri Town in the district of Dhubri as her homestead land. During her lifetime, Amina Khatun gave away land measuring 1 3/4 L for the purpose of a passage over the northern part from her aforesaid 15 L of land as a result of which land measuring 13 1/4 L remained under her ownership and occupation as her homestead land. The said plot of land was subsequently recorded under dag No. 3172/473, PP No. 1444 in Bidyapara Ward No. 10, Dhubri Town which has been described in Schedule-A to the plaint. Amina Bewa was initially married to Mortab Ali and out of the said wedlock she gave birth to two daughters i.e. defendant Nos. 2 and 3 and one son i.e. defendant No. 1 through her first husband Mortab Ali. After the death of Mortab Ali, who died sometime in the year 1948, Amina Khatun remarried Ramizuddin and from the side of her second husband the plaintiff was born as the lone child. It is the case of the plaintiff that the land described in Schedule-A to the plaint was the self acquired property of Amina Khatun and therefore, after her death as per the law of inheritance under the Mohammedan Law, the plaintiff and the defendant No. 1 being the sons of the deceased Amina Khatun would be entitled to 1/3rd share in the Schedule-A land each whereas the defendant Nos. 2 and 3 being the daughters would get 1/6th share each out of the property left behind by Amina Khatun. 2 and 3 being the daughters would get 1/6th share each out of the property left behind by Amina Khatun. Therefore, as per the dicta of Mohammedan Ali, as aforesaid, the plaintiff would be entitled to 4 5/12 L of land as his share out of the Schedule-A land which has been described in Schedule-B to the plaint. Certain disputes and differences having arisen amongst the parties regarding management and possession of the properties an approach was made by the plaintiff to the Settlement Officer, Dhubri by filing a mutation case and by order dated 14.07.1999 passed in M.A. No. 2/99 the learned Settlement Officer, Dhubri directed the parties to have their claims adjudicated before the Civil Court. In the meantime, the plaintiff had approached the defendants for amicable partition of their shares in respect of the land left behind by Amina Khatun. However, instead of agreeing to such proposal the defendants have threatened to dispossess the plaintiff by demolishing the house standing thereon as a result of which the plaintiff had been compelled to institute Title Suit No. 96/2000 in the Court of Munsiff No. 1, Dhubri praying for a declaration of this title and share in respect of the Schedule-B land and also for a decree of permanent injunction. 3. The case of the plaintiff was contested by the defendant No. 1 by filing written statement whereby besides taking the formal plea pertaining to maintainability of the suit on the ground of want of cause of action, misjoinder of parties as well as law of limitation, the defendant had generally denied the averments in the plaint. The case of the contesting defendant as projected in the written statement is that the suit land originally belonged to Mortab Ali i.e. the father of the defendant Nos. 1 to 3 and during his lifetime he used to reside there along with his family members. Mortab Ali died leaving behind his widow Amina Khatun and a son and two daughters i.e. defendant Nos. 1, 2 and 3 respectively. After the death of Mortab Ali Amina Khatun went for a second marriage with Ramizuddin out of which wedlock the plaintiff was born. Amina Khatun used to live with Ramizuddin in a separate house. Mortab Ali died leaving behind his widow Amina Khatun and a son and two daughters i.e. defendant Nos. 1, 2 and 3 respectively. After the death of Mortab Ali Amina Khatun went for a second marriage with Ramizuddin out of which wedlock the plaintiff was born. Amina Khatun used to live with Ramizuddin in a separate house. However, after the death of Ramizuddin Amina Khatun along with the plaintiff had returned back to the house of the defendants and with the permission of the defendants had been living there. After about two years Amina Khatun died and the plaintiff had since been living in the house standing over the suit land belonging to the defendant No. 1 as a permissive occupier. The contesting defendants have categorically denied that the suit land was the self acquired property of Amina Khatun as claimed by the plaintiff. The defendant has further denied that the plaintiff is entitled to the share of 4 5/12 L of land as claimed by him. On the contrary, the defendant has stated that the plot of land originally belonged to Mortab Ali and after the death of the father of the defendants; the name of Amina Khatun was recorded in the khatian in her capacity as the legal heir of Mortab Ali. Since the defendant Nos. 1 to 3 were all minors at that point of time, hence the name of Amina Khatun was entered in a representative capacity. Such being the position, after the death of Amina Khatun as per the law of inheritance under the Mohammedan Law Amina Khatun would be entitled to get 1/8th share in the property left behind by Mortab Ali which equals to 1 21/32 L of land whereas the defendant No. 1 would be entitled to get 7/16th share which equals to 5 51/64 L of land. The defendant Nos. 2 and 3 being the daughters would be entitled to 7/32 portion of share each which equals to 2 115/128 L out of the total area of land measuring 13 1/4 L land left behind by their father Mortab Ali. Therefore, the plaintiff would only be entitled to get a share out of the entitlement of Amina Khatun as the legal heir of Mortab Ali, which according to the defendants, would measure 53/96 L of land. The defendant has therefore prayed for dismissal of the suit filed by the plaintiff. Therefore, the plaintiff would only be entitled to get a share out of the entitlement of Amina Khatun as the legal heir of Mortab Ali, which according to the defendants, would measure 53/96 L of land. The defendant has therefore prayed for dismissal of the suit filed by the plaintiff. The defendant No. 1 has accordingly made a counter-claim for declaration to that effect seeking eviction of the plaintiff from 1 1/2 L of land which was under his possession. 4. On the basis of the pleadings of the parties the learned trial Court had framed as many as 24 issues which are as follows:- "1) Is this suit maintainable in its present form and manner? 2) Is there any cause of action for this suit? 3) Is this suit barred by law of limitation? 4) Is this suit bad for non-joinder of Mosira Khatun? 5) Is this suit bad for estoppels, waiver and acquiescence? 6) Is this suit improperly valued? 7) Whether this court has pecuniary jurisdiction to try this suit? 8) Whether this suit is bad for non-service of notice u/s 80 CPC? 9) Whether civil court has jurisdiction to make partition? 10) Whether the suit land is the self acquired land of the mother of the plaintiff and the defendant? 11) To what extent of the suit land does the plaintiff has right, title and interest? 12) Whether the plaintiff is entitled to the decree as prayed for? 13) Whether the counter-claim is maintainable? 14) Whether this court has jurisdiction to entertain the counter-claim? 15) Whether the counter claim is improperly valued and liable to be dismissed? 16) Whether the counter claim is bad for non-joinder of necessary parties? 17) Is the counter claim barred by the law of limitation? 18) Is there cause of action for the counter-claim? 19) Whether the defendants father Mortab Ali was the owner of the suit land? 20) Whether the plaintiff is possessing excess share as permissive possessors? 21) To what extent of the suit land does the defendants have right, title and interest? 22) Whether the plaintiff is liable to be evicted from excess share, if any? 23) Whether the defendants are entitled to a decree and declaration as prayed for? 24) To what relief, the parties to this suit may be entitled?" 5. Both parties adduced evidence in support of their case. 22) Whether the plaintiff is liable to be evicted from excess share, if any? 23) Whether the defendants are entitled to a decree and declaration as prayed for? 24) To what relief, the parties to this suit may be entitled?" 5. Both parties adduced evidence in support of their case. On the basis of the materials available on record the learned trial Court had decided the Issue Nos. 10 and 19 in favour of the plaintiff/respondent by holding that the land described in Schedule-A to the plaint was the self acquired property of Amina Khatun which she had acquired by means of purchase on the strength of registered sale deed No. 2302/1948. The learned trial Court had further held that the suit land was recorded in the name of Amina Khatun Bewa in Tenancy Khatian No. 517 covered by dag No. 776 under landlord Khatian No. 516 at Bidyapara, Dhubri. As such, the learned trial Court having found the Issue No. 10 in favour of the plaintiff the other material issues were also answered in favour of the plaintiff and the suit was decreed. However, the learned trial Court did not pass any speaking order as regards the counter-claim filed by the defendant is concerned. 6. Being aggrieved by the judgment and decree dated 29.11.2008 passed by the learned Munsiff No. 1, Dhubri in Title Suit No. 96/2000 decreeing the suit of the plaintiff the defendant No. 1 as appellant has preferred Title Appeal No. 6/2009 before the Court of learned Civil Judge, Dhubri. Upon hearing the learned counsel for the parties, the learned Civil Judge, Dhubri had dismissed the Title Appeal No. 6/2009 by the judgment and decree dated 24.10.2011 thereby affirming the judgment and decree passed by the trial Court. 7. Being highly aggrieved and dissatisfied with the concurrent judgment and decree passed by the learned First Appellate Court the defendant No. 1 as appellant has preferred this Second Appeal which was admitted by this Court by the order dated 04.04.2012 to be heard on the following substantial questions of law:- "1. Whether the learned Courts below were right in holding that the suit land was the self acquired land of the plaintiff's mother only on the basis of Khatian, without there being any evidence of source of title? 2. Whether the learned Courts below were right in holding that the suit land was the self acquired land of the plaintiff's mother only on the basis of Khatian, without there being any evidence of source of title? 2. Whether the judgment of learned first appellate court is perverse for non-compliance of the provisions of Order XLI Rule 31 CPC?" 8. I have heard Ms. R. Choudhury, learned counsel appearing for the appellant as well as Mr. D.A. Kaiyum, learned counsel appearing for the respondent No. 1. Also heard Mr. G. Sarma, learned Govt. Advocate, Assam appearing for the proforma respondent Nos. 2 and 3. 9. Ms. R. Choudhury, learned counsel for the appellant, submits that a perusal of the pleadings contained in the plaint would go to show that the plaintiff has failed to plead in clear terms the fact that the suit land was self acquired property of Amina Kharun nor is anything mentioned in the plaint as regards the manner in which such property had been allegedly acquired by Amina Khatun. There is no mention of any purchase by means of a sale deed nor has the plaintiff pleaded anything to show the flow of title. In the written statement the defendant No. 1 has categorically denied the claim of the plaintiff that the Schedule-A land was the self acquired property of Amina Khatun. On the contrary, the contesting defendant has emphatically pleaded that the said plot of land originally belonged to Mortab Ali i.e. the father of the defendant No. 1 and after his death the name of Amina Khatun was entered in the record of right purely in her capacity as the widow of Mortab Ali since at that point of time the children of deceased Mortab Ali were all minors. Such being the position, there was no basis for the learned Courts below to decree the suit filed by the plaintiffs. 10. Ms. Choudhury further submits that on a perusal of the judgment and decree passed by the trial Court it would be evident that the suit of the plaintiff has been decreed based on purported deed of sale bearing No. 2302 of 1948 even though there is no whisper of any such sale deed in the plaint. 10. Ms. Choudhury further submits that on a perusal of the judgment and decree passed by the trial Court it would be evident that the suit of the plaintiff has been decreed based on purported deed of sale bearing No. 2302 of 1948 even though there is no whisper of any such sale deed in the plaint. She further submits that the learned Courts below committed serious illegality in placing excessive weightage as regards the recording of the name of Amina Khatun in respect of the tenancy khatian by ignoring the plea taken by the defendant that at the relevant point of time they were all minors and therefore the name of Amina Khatun had been entered in the khatian as the legal heir of Mortab Ali in a representative capacity. She submits that the plaintiff has completely failed to lead cogent and convincing evidence to establish his claim that the land in question was the self acquired property of Amina Khatun. On the contrary, the materials available on record would clearly go to show that the claim of the plaintiff is completely baseless and untenable in the eye of law. 11. Per contra, Mr. Kaiyum, learned counsel for the respondent/plaintiff, submits that the learned Courts below decreed the suit of the plaintiff based on the registered deed of sale which was on record. The Volume of the Sub Registry could not be called to prove the said document in view of the fact that by the letter Ext-1 issued by the Sub Registrar the plaintiff was informed that the said Volume containing the deed in question had been destroyed by fire. Mr. Kaiyum further submits that the entry of name in the khatian gives rise to a rebuttable presumption in favour of title and possession being conferred on Amina Khatun in her individual capacity. The defendants have failed to rebut the aforesaid presumption by leading cogent evidence on record. Such being the position, there is no infirmity in the concurrent judgment and decision rendered by the Courts below decreeing the suit filed by the plaintiff. 12. I have considered the rival submissions made by and on behalf of the parties and have also perused the records. Such being the position, there is no infirmity in the concurrent judgment and decision rendered by the Courts below decreeing the suit filed by the plaintiff. 12. I have considered the rival submissions made by and on behalf of the parties and have also perused the records. On an examination of the plaint filed in the suit it appears that there is no specific pleading on behalf of the plaintiff to show that the land claimed by him was actually the self acquired property of his mother. Nothing has been mentioned in the plaint as to how that land had been acquired by Amina Khatun in her individual capacity nor is there any mention of the land having been purchased by means of a registered deed of sale. From a perusal of the records it can be seen that the document claimed as registered deed of sale bearing No. 2304/1948 is actually some kind of a tenancy agreement purportedly executed by one Anu Sheikh i.e. the landlord in favour of Amina Khatun in the year 1948. What is available on record is actually a Xerox copy of the said document bearing No. 2302 of 1948. A perusal of the aforesaid document bearing No. 2302/1948 goes to show that the same has been executed after the death of Mortab Ali. The name of Amina Khatun had also been apparently recorded in the khatian after the death of Mortab Ali. Ext-7 is a copy of rent paying receipt issued by Basiran Bewa, wife of Anu Sheikh in favour of Mortab Ali in respect of the said plot of land whereby Mortab Ali has been clearly shown as a tenant. Ext-7 appears to have been issued by the landlord in favour of Mortab Ali i.e. the husband of Amina Khatun. Therefore, from the materials available on record the picture that emerges is that Mortab Ali was the original recorded tenant under Anu Sheikh in respect of the plot of land in question. After his death the name of Amina Khkatun was entered in the khatian in her capacity as the legal heir of Mortab Ali. 13. Be that as it may, the plaintiff side had completely failed to lead any convincing evidence on record to prove and establish his basic claim that the Schedule-A land was the self acquired property of Amina Khatun. 13. Be that as it may, the plaintiff side had completely failed to lead any convincing evidence on record to prove and establish his basic claim that the Schedule-A land was the self acquired property of Amina Khatun. The evidence on record relied upon by the learned Courts below did not prove and establish the claim of the plaintiff that the Schedule-A land was the self acquired property of Amina Khatun. On the face of the pleaded stand taken by the defendants denying and disputing the claim made by the plaintiff, it was incumbent upon the plaintiff to prove and establish his case by leading cogent evidence on record which the plaintiff has failed to do. In that view of the matter, the decision and conclusions concurrently recorded by both the Courts below appears to be based on irrelevant materials and therefore is liable to be declared as perverse in the eye of law. 14. A perusal of the judgment and decision rendered by the First Appellate Court would go to show that the learned First Appellate Court has categorically held that the plaintiff has not been able to prove that the suit land is the purchased land as because no deed of purchase had been proved. However, notwithstanding the above finding, the learned First Appellate Court placed reliance upon Ext-2 khatian as well as Ext-1 letter issued by the Senior Sub Registrar to come to a finding that the plaintiff would be entitled to a decree as prayed for without recording any finding as to whether the plot of land was the self acquired property of Amina Khatun as claimed by the plaintiff or not. The learned First Appellate Court seems to have relied more upon the omission on the part of the defendants to lead evidence to rebut the entries made in the tenancy khatian standing in the name of Amina Khatun. Since the learned First Appellate Court has failed to record any independent finding regarding the facts as well as the questions of law involved in the proceeding before concurring with the judgment and decree passed by the learned trial Court, hence the judgment and decree rendered by the First Appellate Court cannot be held to be in consonance to the requirement of Order XLI Rule 31 of the Code of Civil Procedure. That apart, there is no basis available on record permitting the learned First Appellate Court to agree with the conclusion that the land described in Schedule-A to the plaint was the self acquired property of Amina Khatun. Such being the position, the concurrent decree passed by both the Courts below declaring the share of the plaintiff is not sustainable in the eye of law and hence liable to be set aside. 15. Consequently, the appeal stands allowed on contest. The questions of law as framed by this Court also stands answered accordingly. However, having regard to the facts and circumstances of the case, there would be no order as to cost. Registry to send back the LCR. 16. Before parting with the record, it may be relevant to mention here that in the present proceeding the claim of the plaintiff based on the premise that the Schedule-A land was the self acquired property of Amina Khatun has only been rejected. Notwithstanding the order passed by this Court in the present appeal it will be open to the parties to bring in appropriate proceeding for partition of their shares and declaration of separate possession as may be otherwise permissible under the law.