JUDGMENT : 1. The plaintiff’s case is that Schedule-A land belonged to his father Md. Tayab Ali and after his death the plaintiff became the owner of the land based on an amicable partition amongst the other co-owners, namely, Moriom Bibi, Misira Bibi, Sitai Bibi who were the surviving sisters of late Tayab Ali. As per the family settlement the plaintiff became the owner of Schedule-II land which is a part of Schedule-I land. It is also the case of the plaintiff that the defendant No.1 had purchased a plot of land from the father of the plaintiff as well as the surviving sisters as named above on the western part of the Schedule-I land by means of registered deed of sale i.e. Ext-7/Ext-C pursuant to which he has been continuing in possession of the said plot of land. The plaintiff had allowed the defendant No.1 to occupy the Schedule-II land. At that time the plaintiff was doing business outside the area of Badarpur Police Station and in view of the relationship between the parties the defendant No.1 had temporarily resided in the Schedule-II land on condition that he would vacate the same as and when required by the plaintiff. But later on, when the plaintiff had requested the defendant No.1 to vacate the land he had refused to do so and as such the plaintiff had filed the instant suit for declaration of his right, title and interest in respect of the Schedule-II land and also for recovery of possession in respect thereof by evicting the defendant No.1 and the remaining defendants from the said plot of land. 2. The defendant No.1, 2 and 3 contested the suit by filing written statement whereby they have pleaded that the Schedule-I land originally belonged to Abdul Mia who had died leaving behind one son and four daughters, namely, Md. Tayab Ali (father of the plaintiff), Asira Bibi (mother of the defendant No.1), Morioma Bibi, Misira Bibi and Sitai Bibi. After the death of Abdul Mia the suit land was amicably partitioned amongst his aforementioned legal heirs and as per the said partition eastern part of the land described in Schedule-I fell in the share of Asira Bibi. The remaining part of the land on the western side described in Schedule-I had been purchased by the defendant No.1 from Tayab Ali and the other co-sharers in the year 1964. The remaining part of the land on the western side described in Schedule-I had been purchased by the defendant No.1 from Tayab Ali and the other co-sharers in the year 1964. But since the defendant No.1 is an uneducated person, hence, taking advantage of the same Md. Tayab Ali had fraudulently shown the eastern boundary of the purchased land of the defendant No.1 as the land of plaintiff Ismail Ali in the registered deed of sale. The defendant No.1 had filed a counter-claim for correction of the said boundary of the sale deed No.992 dated 07.04.1964. The defendants have also denied that the defendant No.1 was ever a licensee under the plaintiff and claimed that the entire Schedule-I land belongs to the defendant No.1, the western part by virtue of the purchase and the eastern part on the basis of inheritance from his mother Asira Bibi. 3. The plaintiff had filed written statement against the counter-claim questioning the maintainability of the same. While denying the averments made in the counter-claim the plaintiff had further stated that the mother of defendant No.1, Asira Bibi, died before the death of Abdul Mia and as such, Asira Bibi never inherited any land from Abdul Mia. On such basis the plaintiff prayed for dismissal of the counter-claim with cost. 4. Based on the pleadings of the parties, the learned trial Court had framed the following issues :- “1. Is there any cause of action for the suit? 2. Whether the suit is undervalued? 3. Whether the plaintiff has right, title and interest over the suit land? 4. Whether the defendant is entitled to get the document executed by the plaintiff as claimed in his counter-claim? 5. Whether the defendant is a licensee of the plaintiff? 6. To what relief, if any, are the parties entitled?” 5. Both sides adduced oral as well as documentary evidence. On appraisal of the evidence available on record and after hearing the learned counsels for the parties the learned trial Court had answered Issue Nos.1, 2, 3 and 5 in favour of the plaintiff while answering the Issue No.4 against the defendants. In the result, the suit filed by the plaintiff was decreed by the learned trial Court whereas the counter-claim stood dismissed. 6. In the result, the suit filed by the plaintiff was decreed by the learned trial Court whereas the counter-claim stood dismissed. 6. Being aggrieved by the judgment and decree dated 10.07.2002 passed by the learned trial Court in Title Suit No.56/1998 the defendants as appellants had preferred Title Appeal No.3/2002 in the Court of District Judge, Karimganj. The learned Lower Appellate Court had also dismissed the Title Appeal by the judgment and order dated 07.08.2004 thereby, concurring with the findings recorded by the trial Court on all the issues. 7. Being aggrieved by the judgment and decree dated 07.08.2004 passed by the Lower Appellate Court the defendants as appellants had approached this Court by filing the instant Second Appeal which was admitted to formal hearing by framing the following substantial questions of law :- “1. Whether as held by the Courts below there is a presumption of knowledge of forgery when certified copy of the deed has been obtained? And 2. Whether the finding of the courts below that Asira Bibi could not inherit the properties of her father Abdul Miya as she predeceased her father is perverse to the evidence on record?” 8. I have heard Mr. N. Dhar, learned counsel for the appellants and also heard Mr. M. H. Rajbarbhuiya, learned counsel representing the respondents. 9. Mr. Dhar, learned counsel for the appellants, submits that the learned Court below had arrived at a finding as regards the title of the plaintiff merely based on the fact that the defendants have not been able to establish their claim. A perusal of the judgment and order passed by the Court below would go to show that there was no concrete basis for the learned Court below to pass a decree of declaration of title of the plaintiff over the suit land. He submits that the very fact of partition being in dispute the learned Court below ought to have framed an issue on the said aspect of the matter and decided the same on the basis of evidence available on record. 10. Mr. Dhar further submits that as has been noticed in the judgment and order passed by the Court below, the crux of the dispute herein is pertaining to the fact as to whether the mother of the defendant No.1 i.e. Asira Bibi had, in fact, inherited any property from her father Abdul Mia. 10. Mr. Dhar further submits that as has been noticed in the judgment and order passed by the Court below, the crux of the dispute herein is pertaining to the fact as to whether the mother of the defendant No.1 i.e. Asira Bibi had, in fact, inherited any property from her father Abdul Mia. He submits that although the plaintiff had taken a plea that Asira Bibi had predeceased her father Abdul Mia, yet, there is no evidence on record for the Court to record a satisfaction to that effect. He submits that from the testimony of PW 1, DW 4 and DW 5 it would be apparent that the preponderance of evidence was in support of the fact that Asira Bibi died in the year 1948 whereas her father Abdul Mia died in the year 1946. However, discarding the aforesaid evidence, the learned Court below appears to have relied wholly upon the testimony of PW 2, Jowaid Ali to record a finding that Asira Bibi died in the year 1366 B.S. i.e. before the death of Abdul Mia. Reliance has been placed on the testimony of PW 2 by ignoring the fact that Jowaid Ali being the elder brother of the defendant No.1, had deliberately deposed against the interest of the defendant No.1 purely on account of the fact that there was a property dispute between both the brothers which was still unresolved. 11. Drawing the attention of this Court to Ext-E, Mr. Dhar submits that a perusal of the copy of the katcha patta (myadi) pertaining to the suit dag and patta would go to show that the names of both the plaintiff as well as the defendant No.1 have been entered therein. But the plaintiff had never challenged the said katcha patta and on the contrary are relying upon the same. Learned Court below has not taken note of the aforesaid piece of documentary evidence which would have a vital bearing in deciding the Issue No.3. Mr. Dhar, therefore, submits that the judgment and decree passed by the Court below are vitiated by perversity inasmuch as the findings recorded in respect of Issue No.3 and 5 are not only contrary to the evidence on record but the same are also based on no evidence. 12. Mr. Mr. Dhar, therefore, submits that the judgment and decree passed by the Court below are vitiated by perversity inasmuch as the findings recorded in respect of Issue No.3 and 5 are not only contrary to the evidence on record but the same are also based on no evidence. 12. Mr. Dhar submits that even in a case of concurrent finding recorded by both the Courts below, the High Court would have the power to interfere with such concurrent finding in a Second Appeal if it is of the opinion that the material or relevant evidence is not considered which if considered would lead to an opposite conclusion. In support of the aforesaid argument, Mr. Dhar has relied upon a decision of the Hon’ble Supreme Court of India in the case ISHWAR DASS JAIN (DEAD) THROUGH LRS. Vs. SOHAN LAL (DEAD) BY LRS. reported in (2000) 1 SCC 434 . 13. Per contra, Mr. M. H. Rajbarbhuiya, learned counsel representing the respondents submits that the Courts below have recorded concurrent finding of facts on all the issues in favour of the plaintiff and against the defendants based on evidence available on record. Therefore, in exercise of jurisdiction under Section 100 CPC the Second Appellate Court would not like to interfere with such concurrent finding of fact recorded by the Courts below. He submits that it is not in dispute that the defendant No.1 had purchased the western part of the land described in Schedule-I by means of registered deed of sale Ext-C. However, his claim of title over the eastern part of the Schedule-I land has remained completely unsubstantiated on account of the fact that the defendant No.1 is claiming title over the eastern part of Schedule-I land based on right of inheritance through his mother Asira Bibi whereas the fact remains that Asira Bibi did not inherit any land from Abdul Mia. He further submits that even assuming for the sake of argument that the claim of defendant No.1 of having inherited land through Asira Bibi is correct even then he could not have inherited 50% of the land left behind by Abdul Mia as claimed by him. 14. Mr. Rajbarbhuiya further submits that a perusal of the grounds taken by the plaintiff before the First Appellate Court would go to show that he has admitted the title and ownership of the plaintiff in respect of the Schedule-II land. 14. Mr. Rajbarbhuiya further submits that a perusal of the grounds taken by the plaintiff before the First Appellate Court would go to show that he has admitted the title and ownership of the plaintiff in respect of the Schedule-II land. That apart, the grounds that are now sought to be urged before this Court have never been raised by the defendant No.1 before the Court below. Such being the position, submits Mr. Rajbarbhuiya, the substantial questions of law urged by the appellants is completely devoid of any merit and hence is liable to be rejected by this Court. 15. I have considered the submissions made by and on behalf of the learned counsels for the parties and have also perused the record. On a proper scrutiny of the judgment and decree passed by the Court below what can be seen is that it is the admitted position of fact that the predecessor in interest of the plaintiff and the defendants Md. Abdul Mia was originally the owner of large area of land including 19½ jastis situated at Badarpur town. The plaintiff claims to be the owner of the schedule-II land through the right of inheritance from his father Tayab Ali who was a son of Md. Abdul Mia and also on the basis of an amicable partition amongst the legal heirs of Abdul Mia. However, the projected case of the plaintiff is that since Asira Bibi had predeceased Md. Abdul Mia, hence, she did not inherit any land from Abdul Mia. The case of the defendant No.1, on the other hand, is that Asira Bibi died two years after the death of Abdul Mia and therefore, had inherited a substantial portion of land left behind by Abdul Mia. Thereafter, on the basis of an amicable settlement between the members of the family Asira Bibi became the owner of land falling on the eastern part of Schedule-I of the plaint which is more or less covered by the Schedule-II. 16. From the competing claims made by both the parties on the point of inheritance of the property left behind by Abdul Mia, the learned Court below had rightly observed that the crux of the dispute relates to the answer to the question as to whether Asira Bibi had inherited any property from her father Abdul Mia. 16. From the competing claims made by both the parties on the point of inheritance of the property left behind by Abdul Mia, the learned Court below had rightly observed that the crux of the dispute relates to the answer to the question as to whether Asira Bibi had inherited any property from her father Abdul Mia. Although the core controversy was rightly identified by the trial Court, as reflected from the judgment, yet surprisingly enough no issue was framed either to decide that point or to determine as to in what manner and to what extent the property left behind by Abdul Mia had devolved upon his legal heirs or for that matter to determine as to whether there was any partition of the properties inherited by the legal heirs of Abdul Mia. The perusal of the judgment and decree passed by the Court below when considered in the light of the testimony of PWs 1, 2 and DWs 4 and 5 goes to show that there was no convincing evidence available before the Court to arrive at a positive finding that Asira Bibi had predeceased her father Abdul Mia. Since the claim of the plaintiff over the schedule-II land is founded on the quantum of land that he had inherited from his father Tayab Ali which subsequently fell into his share on the basis of an amicable settlement, I am of the opinion that in the absence of a clear determination as regards the manner and extent of inheritance of immoveable properties by the legal heirs of Abdul Mia it would not be possible to appreciate the claim/counter claim of the plaintiff vis-à-vis defendant No.1 in the conspectus of facts of this case. Such being the position, I am of the opinion that the learned trial Court ought to have framed an issue so as to address this controversy and thereafter, recorded finding of fact giving answer to other issues. Since the basic purpose of framing issues is to highlight the real controversy involved in a proceeding so as to enable the parties to lead evidence in support of their case, I am of the considered opinion that non-framing of the aforementioned issues had led to misdirection of the trial itself having a vitiating effect on the decree passed by the trial Court. 17. 17. Even the judgment and decree passed by the First Appellate Court appears to be following the same line as that of the trial Court without there being any independent application of mind on the real controversy involved in the proceeding. In that view of the matter I am of the considered opinion that the judgment and decree passed by the learned Lower Appellate Court is not sustainable in the eye of law and as such the same is hereby set aside. The matter is remanded back to the learned trial Court with a direction to decide the suit afresh after framing the following additional issues :- 1) Whether Asira Bibi had acquired any share in the property of Abdul Mia? 2) Whether the immoveable properties left behind by Abdul Mia have been partitioned amongst his legal heirs? 18. Since the evidence on record is not sufficient for this Court to record finding of fact on the above issues, hence, the learned trial Court would now decide the suit afresh as directed above by giving opportunities to the parties of being heard. It would be left open to the trial Court also to decide as to whether any additional issue pertaining to non-joinder of necessary party is required to be framed in the facts and circumstances of the case. Since the suit is of 1998, hence, an attempt would be made by the trial Court to conclude the trial within a period of six months from the date of receipt of a copy of this order. Needless to say, since the additional issues have been framed, hence, it would be open to the parties to make appropriate application for adducing evidence, if so desired. 19. The parties would now appear before the trial Court on 24.08.2015. The Title Suit No.56/1998 would stand restored to the file of the learned Civil Judge (Senior Division), Karimganj. Registry to send back the LCR as expeditiously as possible. The Second Appeal stands disposed of accordingly.