JUDGEMENT AND ORDER : 1. This is an appeal filed under Section 100 of the Code of Civil Procedure calling the judgment dated 27.07.2013 delivered in Title Appeal No. 08 of 2012 by the District Judge, South Tripura, Udaipur in question. By the said judgment of affirmance, the judgment dated 18.01.2012 delivered in Title Suit No. 04 of 2006 by the Civil Judge (Junior Division), Udaipur, South Tripura has not been interfered with. By the order dated 27.01.2014 the following substantial questions of law were formulated by this court (i) Whether the decree for right, title, interest and possession over the suit land can be granted in favour of the plaintiff in absence of her oral testimony or the testimony of a Power of Attorney (ii) Whether in absence of any title, but only on the basis of record of right, a decree declaring title can be issued in favour of the plaintiff in absence of any deed relating to title? 2. The appellant was given liberty to raise further substantial question of law, but the appellant did not raise any additional substantial question of law for consideration. To have the perspective of the challenge as projected in this appeal, the essential facts leading to the impugned judgment may briefly be introduced at the outset. 3. The pleaded case of the plaintiff-respondent is that the plaintiff No.2, namely Bakul Rani Majumder owned land measuring 0.010 acres under Dag No. 366/1407, Khatian No. 351. Over the half-portion of the land, she constructed dokan vitti and the remaining portion remained vacant. On 25.10.2005 the defendants trespassed into the southern part of the land shown in the ‘A’ schedule appended to the plaint. The schedule ‘B’ land of the plaint is still under the possession of the plaintiffs and there is a dokan viti but from the schedule ‘B’ land. The predecessor of the plaintiffs had been dispossessed on 25.10.2005 and by means of the suit the plaintiffs have prayed for a decree of recovery. 4. By filing the written statement the sole defendant, the appellant herein, has admitted in the written statement as under: “That the fact of the case in brief the mother of the plaintiff no.1 Bakul Rani Majumder sold out 1 kara 1 kranta 10 dhurs of land i.e. a part of suit land by giving specific boundary to the defendant and delivered the possession accordingly on 10.01.1973. Due to mistake of Deed Writer the plot No. was written 366/1408 in lieu of Plot No. 366/1407. The defendant prayed for mutation for the said purchased land and mutation was made accordingly in the name of defendant at Mouja-Barabhaiya, Khatian No. 30, Plot No. 355/1407 land measuring .010 acres of land vide mutation case No. 38 of 1989. After purchase by the defendant constructed hut and started Rice Milling Business from the portion of the suit land. It is to be mentioned here that on 10.01.1973 the plaintiff No.2,Smt. Bakul Rani Majumder purchased 2 kranta 10 dhurs of land from his brother Chitta Ranjan Majumder by specific boundary which is separate and different in Plot No. 366/1408 peace of land, certain away from the suit land. So, the question of selling land of plot no. 366/1408 land measuring 1 kara 1 kranta and 10 dhurs does not arise at all as because Bakul Rani never belonged to 1 kara 1 kranta and 10 dhurs land in plot No. 366/1408 of Mouja-Barabhaiya. The defendant instituted T.S. 2 of 2006 against the plaintiffs claiming Decree for the suit land prior to institution of the suit. The party and the suit land are the same and the suit filed by the defendant is the previous suit. So, the suit is liable to be dismissed”. [Emphasis added] 5. Based on the said pleadings the trial Court framed the following issues : “(i) Whether the plaintiffs are entitled to a decree for declaration as to right, title, interest and ownership over the suit land and recovery of possession of the portion of the suit land as prayed for? (ii) Whether the plaintiffs are entitled to a decree for perpetual injunction restraining the defendants, their men or agents thereby from entering into the northern portion of the suit land measuring 0.005 acres and from disturbing the peaceful possession of the plaintiffs thereon?” 6. The trial court after considering the judgment dated 02.06.2008 passed by the Civil Judge, Junior Division, Udaipur, South Tripura [Exhibit-D] in Title Suit no. 02 of 2006 as relied by the defendant-appellant has observed that that suit was for rectification of the sale deed no. 199 of 1973. That suit was dismissed by the court with observation that the land transferred by the defendant in that suit to the plaintiff of that suit through the sale deed no. 02 of 2006 as relied by the defendant-appellant has observed that that suit was for rectification of the sale deed no. 199 of 1973. That suit was dismissed by the court with observation that the land transferred by the defendant in that suit to the plaintiff of that suit through the sale deed no. 199 of 1973 is corresponding to the plot no. 366/1407 and it has been inadvertantly mentioned in the sale deed as 366/1408 instead of 366/1407. The said judgment dated 06.02.2008 had been affirmed by the first appellate court. Even the High Court in the subsequent appeal did not interfere with the concurrent finding in that regard returned by the courts below. May it be mentioned that the suit that has been filed by the plaintiffs is for declaration of right, title and interest over the suit land and for recovery of possession with perpetual injunction. 7. The trial court has observed that the plaintiff no.1 Sri Samir Kanti Majumder [PW-2] has stated in the trial that the plaintiff No. 2 is the owner of the suit land. The suit land has been described in the plaint as the schedule ‘A’ measuring total area of 0.010 acres under Mouja-Barabhaiya comprised in Khatian no. 30, Sabek Dag no. 366/1407. PW-2 has further stated that on the northern part of the suit land measuring 0.005 acres, he is continuing his business but on the southern part of the suit land measuring 0.005 acres, the defendant appellant has illegally trespassed on 25.10.2005 finding the same to be vacant. PW-4 and PW-5 have confirmed that evidence of PW-2. PW-1 was not cross-examined by the defendant and hence her evidence could not be utilized. DW-1, the defendant-appellant herein has stated that the plaintiff no.2, Bakul Rani Majumder sold 1 kara 1 kranta and 10 dhurs of land to the defendant. The said land situated under Mouja-Barabhaiya and is comprised in Khatian no. 30, plot No. 366/1407 by specific boundary. The land has been claimed to have been purchased by the sale deed no. 199 dated 10.01.1973. On the same date, the plaintiff no.2 purchased 2 kranta 10 dhurs of land from the plot no. 366/1407 with specific boundary from Chitta Ranjan Majumder, but due to mistake in the sale deed no. 100 dated 10.01.1973 the plot no. was written as 366/1408 instead of 366/1407. 199 dated 10.01.1973. On the same date, the plaintiff no.2 purchased 2 kranta 10 dhurs of land from the plot no. 366/1407 with specific boundary from Chitta Ranjan Majumder, but due to mistake in the sale deed no. 100 dated 10.01.1973 the plot no. was written as 366/1408 instead of 366/1407. According to the defendant, the plaintiff no.2 in order to take undue advantage out of the said mistake had instituted the suit. 8. The trial Court on appreciation has observed that the plaintiffs were owners in possession of the suit land. It has been further observed by the trial Court that the plot no. 366/1408 is a big plot and nowhere in the sale deed it is written that plot no. 366/1408 is a land measuring only 2 kranta 10 dhurs. Thus, the arguments as advanced for the defendant that there was no sufficient land with the plaintiff no.2 to sell the land measuring 1 kara 1 kranta and 10 dhurs. Thus, the title of the plaintiff in respect of the schedule ‘A’ land, corresponding to the plot no. 366/1407, was declared in favour of the plaintiff no.2. The trial court also believed that on 25.10.2005 the defendant had illegally trespassed into the southern part of the suit land and constructed a tin shed there. The said incident was similarly stated by PW-3 [Chitta Ranjan Majumder], PW-4 [Sri Laxman Roy] and PW-5 [Sri Prakash Paul]. Thus, adequate corroboration of the oral testimony of PW-2 was made available in the record of evidence. Even the decree for mense profit was granted to the extent of Rs.1,000/- per year. It was directed that the defendant shall deliver the possession of the schedule ‘C’ land within three months from the date of the judgment else the plaintiffs will be at liberty to put the decree in execution. 9. Being aggrieved by the said judgment, the defendant preferred an appeal being Title Appeal No. 08 of 2012 and by the impugned judgment the first appellate court has observed that the land was transferred by the sale deed. The said land is identified as the plot no. 366/1408 appertaining to khatian no. 350 measuring 2 kranta 10 dhurs with specific boundaries. By another sale deed under No. 199 of 1973, executed by the plaintiff no.1 in favour of the defendant a piece of land comprised in plot no. 366/1408 of khatian no. The said land is identified as the plot no. 366/1408 appertaining to khatian no. 350 measuring 2 kranta 10 dhurs with specific boundaries. By another sale deed under No. 199 of 1973, executed by the plaintiff no.1 in favour of the defendant a piece of land comprised in plot no. 366/1408 of khatian no. 351 was transferred. Thus, both the deeds are in respect of plot no. 366/1408. The land as sold out to the defendant is different. The land as recorded by way of mutation in favour of the defendant is under Dag no. 366/1407 whereas the purchased deed shows that the land purchased is comprised in Dag no. 366/1408. Thus, the trial court and the appellate court have returned the finding in unison that the suit land was not purchased by the appellant. However, the appellate court has observed as under: “It is true that Bakul Rani Majumder sold out 1 kara 2 kranta 10 dhurs land to the appellant but that is not the suit land as described in the schedule. Dag No. and the boundary do not support the fact that the suit land was purchased by the appellant. Learned court below considered the certified copy of the map, Exbt.9 and viewed that plot no. 366/1408 is a big land and nowhere in the sale deed it is written that plot no. 1408 is a land measuring 2 kranta 10 dhurs. So, the appellant failed to prove that the land purchased by him is appertained to suit land. So, it is clearly established that he trespassed into the suit land measuring 0.005acres. Total suit land is 0.010 acres. Out of that land, the respondent was already in possession of 0.005 acres. Other 50% i.e. 0.005 acres remained vacant. The appellant forcibly entered into the land and occupied it on the ground that it was purchased by him in the year, 1973. By preparation of Khatian no. 30 right, title and interest of the defendant-appellant are not established over dag no. 366/1407 because he purchased the land under Dag no. 366/1408 as per deed. It is true that mutation-khatian has been prepared in the name of defendant-appellant under dag No. 366/1407 vide Exbt. 5, Khatian no. 392. However, it was in the name of Bakul Rani Majumder under Khatian no. 366/1407 and vide Exbt.8, same khatian no. 366/1407 is shown in the name of Bakul Rani Majumder. 366/1408 as per deed. It is true that mutation-khatian has been prepared in the name of defendant-appellant under dag No. 366/1407 vide Exbt. 5, Khatian no. 392. However, it was in the name of Bakul Rani Majumder under Khatian no. 366/1407 and vide Exbt.8, same khatian no. 366/1407 is shown in the name of Bakul Rani Majumder. Therefore, on correct appreciation of the evidence on record learned court below came to the conclusion that the plaintiff-respondent had right, title and interest over the suit land and defendant-appellant failed to establish his claim over the suit property”. Accordingly, the decree of the trial court was affirmed by the impugned judgment. 10. Mr. A. Sengupta, learned counsel appearing for the appellant has raised a plea that the plaintiff no.2 being the owner did not depose in the trial court in support of the title. On the contrary, the plaintiff no.1, her son, has made the deposition in the trial. However, he has admitted that the plaintiff no.2 filed the deposition by way of affidavit under Order XVIII, Rule 4 of the Code of Civil Procedure but she was not available for her cross examination. However, it has been admitted by Mr. Sengupta, learned counsel that the plaintiff no.1 in the court has stated that her mother, the plaintiff no.2 was seriously ill and she was not in a position to come to the court for giving the further deposition. Now, the question that falls for consideration is that whether in absence of any Deed of Attorney in favour of the plaintiff no.1 or any authorization under Order III Rule 2 of the Code of Civil Procedure, such evidence is acceptable in law or not. He has further submitted that without the title deed being presented in the evidence, the trial court ought not have declared the title in favour of the plaintiff no.2 or the plaintiffs. The khatian is not a primary document of title. It merely records the name of the holder of the title and records the possession of the particular pieces of land for fiscal purposes. Beyond that, khatian cannot be the evidence of title. The khatian is not a primary document of title. It merely records the name of the holder of the title and records the possession of the particular pieces of land for fiscal purposes. Beyond that, khatian cannot be the evidence of title. He has referred in support of such contention, a decision of the Apex Court in Jattu Ram vs. Hakam Singh and others reported in AIR 1994 SC 1653 where it has been held that “it is settled law that the Jamabandi entries are only for fiscal purpose and they create no title. It is not the case that the appellant had any knowledge and acquiesced to it”. Mr. Sengupta, learned counsel appearing for the appellants has also referred to a decision of Gauhati High Court in R.K. Madhuryyajit and another vs. Takhellambam Abung Singh and another reported in AIR 2001 Gau 181 . In Takhellambam Abung Singh (supra), it has been held by the Gauhati High Court as under: “on whom the burden of proof lies can be ascertained by taking note of the fact as to which of the parties would/will succeed if no evidence is adduced/given on the either side. The burden rests on the party who would fail if no evidence at all is adduced. The burden of establishing the case rests upon the party who essentially asserts positively the issue raised. This burden remains unchanged and never shifts under any/all circumstances, as clearly indicated in Section 101 of the Act, 1872. The aforesaid rule pertains to the burden of proof as a matter of law and pleading. The other aspect of the burden of proof is the burden of adducing evidence. The burden of proof in this respect may shift throughout the trial. The distinction between the burden of proof as a matter of law and pleadings to that of adducing evidence, is a matter of prime importance. As alluded above, the plaintiffs came for declaration of their title and, therefore, it was for the plaintiffs to establish their title affirmatively. Where a plaintiff asks for a declaratory decree, he/she must prove his/her title and it cannot take advantage of the weakness of the defendants (Moren Mar Basselios Catholicos and Anr. V. Most Rev. mar Peulose Athanasius and Ors., AIR 1954 SC 526 ”. By relying on the said decision of the Gauhati High Court, Mr. Where a plaintiff asks for a declaratory decree, he/she must prove his/her title and it cannot take advantage of the weakness of the defendants (Moren Mar Basselios Catholicos and Anr. V. Most Rev. mar Peulose Athanasius and Ors., AIR 1954 SC 526 ”. By relying on the said decision of the Gauhati High Court, Mr. Sengupta, learned counsel has further submitted that the plaintiffs failed to discharge the burden in respect of the title over Schedule ‘A’ land, Schedule ‘B’ land and Schedule ‘C’ land and as such the concurrent finding of title in absence of basic evidence suffers from uncondonable perversity. Mr. Sengupta, learned counsel also has asserted that the evidence of PW-1 cannot be relied for purpose of proving the title in favour of the plaintiffs particularly the plaintiff No.2. 11. Ms. P. Dhar, learned counsel appearing for the plaintiff-respondents has submitted that a mere abstention of the plaintiff from the witness box may pale into insignificance inasmuch as the proposition of law is undoubtable. The proposition of law as laid down in Iswar Bhai C. Patel alias Bachu Bhai Patel vs. Harihar Behera & another reported in JT 1999(2) SC 250; 1999(3) SCC 457 by the Apex Court has emphasized that withholding of the plaintiff from the witness box may invite adverse inference but that has not been treated as a universal rule by the Apex Court in their subsequent decision in Rattan Dev vs. Pasam Devi reported in 2002 (7) SCC 441 wherein it has been observed as under: “.. That proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the appellate court while appreciating other oral and documentary evidence available on record. May be that from other evidence-oral and documentary-produced by plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance”. [Emphasis added] Ms. May be that from other evidence-oral and documentary-produced by plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance”. [Emphasis added] Ms. Dhar, learned counsel has on that aspect of non-examination of the plaintiff and utility of the deposition made by another person or party without a formal authority has relied on a decision of the Andhra Pradesh High Court in Vanteeddu Suryakantham vs. Vatti Ganga Kishore reported in 2006 (6) ALD 209 wherein it has been held as under: “So far as the second contention is concerned, learned counsel is not able to place any statutory provision, or a precedent to the effect that a party to a suit must invariably depose as a witness. Howsoever desirable it may be, that a party to the suit must depose as a witness, law does not prohibit non-party witness to be examined on behalf of the parties. For instance, where a party to a suit is a minor, or is a paradanasin lady, or incapacitated on the ground of health, or not available on account of residence at a far off place, any person, who is otherwise posted with the facts and authorized by the party, can depose as a witness. The ratio of the judgment in Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 relied upon by the learned counsel for the appellants is that where as party does not depose as a witness, adverse inference is to be drawn. However, the said inference can be drawn, if only the witness was otherwise in a position to depose, but had failed to do so, want only . In such cases, it can be inferred that had the party deposed as a witness, he or she would not have been able to substantiate the contents of the plaint or written statement, as the case may be”. [Emphasis added] As referred by Ms. In such cases, it can be inferred that had the party deposed as a witness, he or she would not have been able to substantiate the contents of the plaint or written statement, as the case may be”. [Emphasis added] As referred by Ms. Dhar, learned counsel in Sujata Sarkar vs. Anil kumar Duttani reported in 2009 ILR(MP) 1374, the Madhya Pradesh High Court has held as under: “Apparently, the presumption under illustration (g) of the Evidence Act, can be drawn by a court only against a person who withholds evidence which could have been produced by him but is not produced and in case it would have been produced it would not have been unfavourable to him. In the instant case, the evidence that the appellant/plaintiff was required to adduce in support of her claim was in respect of bonafide requirement of the accommodation for the business of her son. That evidence has been brought on record extensively through the oral and documentary evidence and, therefore, there is no withholding of evidence by the appellant/plaintiff. It is also clear that the appellant/plaintiff could not depose before the court in person on account of her old age and ill health. That apart, from a perusal of the evidence on record it is apparent that the respondent/defendant had full opportunity to adduce all documentary evidence to refute the claim of the plaintiff and has extensively cross-examined all the witnesses in respect of the bonafide requirement of the appellant/plaintiff. In such circumstances, I am of the considered opinion that the non-examination of the appellant/plaintiff is not fatal to the case of the appellant/plaintiff in the facts and circumstances existing in the present case and the conclusion recorded by the appellate court in this respect being erroneous, is unsustainable. The first substantial question of law is answered accordingly ”. [Emphasis added] Ms. Dhar, learned counsel has then placed a decision of the Bombay High Court in Jagadishprasad Kashiprasad and another vs. The State of Maharashtra and another reported in AIR 1970 Bom 166 , where it has been held as under: “.. The first substantial question of law is answered accordingly ”. [Emphasis added] Ms. Dhar, learned counsel has then placed a decision of the Bombay High Court in Jagadishprasad Kashiprasad and another vs. The State of Maharashtra and another reported in AIR 1970 Bom 166 , where it has been held as under: “.. Even if an adverse inference were to be drawn it would be for the court to weigh the evidence of such of the witnesses as have been examined before it as against that adverse inference and, if those witnesses are found to be reliable, the court would be perfectly justified in convicting the accused persons. Moreover, in the present case, no basis has been laid in the course of the evidence for drawing an adverse inference by reason of the non-examination of the two eye witnesses. A party asking the court to draw against the other party an adverse inference of the nature indicated in illustration (g) to Section 114 of the Evidence Act by reason of the non-examination of a witness by that party must, whether the proceeding be a civil or a criminal one, lay the foundation for it by eliciting evidence which would show that the witness in question was available to the other party for the purpose of giving evidence at the time of hearing. That evidence may be elicited, either in the course of the cross-examination of the witnesses examined by the other side (e.g. the investigating officer in a criminal case), or by leading evidence to that effect. Unless that foundation is laid, no question of drawing an adverse inference as indicated in illustration (g) to Section 114 arises at all”. According to Ms. Dhar, learned counsel it has been admitted by the defendant that the suit land which is the subject matter of Title Suit 4 of 2006 pertains to CS plot no. 366/1407 corresponding to present plot no. 1167 of Mouja-Barabhaiya whereas in the title deed which has been produced by the defendant in support of his title being sale deed No. 119 dated 10.01.1973 [Exhibit-C] shows the transfer of the land from CS plot No. 366/1408 of Mouja-Barabhaiya. By means of Khatian no. 30 of Mouja-Barabhaiya [Exhibit-1] and the certified Khatian no. 392 [Exhibit-5], the plaintiffs succeeded to prove that their name has been recorded as a title holder. By means of Khatian no. 30 of Mouja-Barabhaiya [Exhibit-1] and the certified Khatian no. 392 [Exhibit-5], the plaintiffs succeeded to prove that their name has been recorded as a title holder. The defendant has clearly stated by filing the written statement that the plaintiff No.2 has transferred the suit land on 10.01.1973 by a registered sale deed with specific boundary and with delivery of possession. It has been categorically admitted by the defendant that there was a mistake while writing the deed of sale, instead of writing the plot no. 366/1407 [as the land under sale] it has been written in the sale deed as plot No. 366/1408. It is also an admitted fact that the defendant’s attempt for getting it corrected by instituting a suit has totally failed. Thus, the defendant could not establish even after he adduced the sale deed dated 10.01.1973 that the suit land as described in the schedule ‘A’ even belonged to him. 12. On the contrary, the plaintiffs by way of oral evidence have proved that they were dispossessed from a part of ‘A’ schedule land as described in the plaint and his ouster was totally illegal and, therefore, he has instituted the suit for declaration of title, confirmation of possession over the ‘B’ schedule land and consequential perpetual injunction in respect of the schedule ‘B’ land and for recovery of the khas possession in respect of the Schedule ‘C’ land and consequential perpetual injunction in respect of the land. The defendant has admitted clearly that the plaintiff no.2 was the owner of the suit land as described in the Schedule ‘A’. Hence, it cannot be held that the plaintiffs have failed to discharge their burden, as argued by the defendant- appellant. 13. Having due regard to the submissions made by the learned counsel appearing for the parties, this court is of the view that though apparently the plaintiff no.1 in the suit does not have any locus to file or institute the suit but since he has claimed possession based on the title of the defendant no.2. he has a cause to file the suit for the relief as prayed therein. The question that has been emphatically raised is that whether not being the representative of the plaintiff no.2 his deposition can be accepted as the deposition of the plaintiff no.2. he has a cause to file the suit for the relief as prayed therein. The question that has been emphatically raised is that whether not being the representative of the plaintiff no.2 his deposition can be accepted as the deposition of the plaintiff no.2. The legal position in view of Section 114(g) of the Evidence Act is beyond pale of controversy that no adverse inference can be drawn by the court unless the foundation is provided for drawing such adverse inference. That apart, if there is an admission in respect of the title which is supported by the finally published record of right then unless contrary is proved by much relatively better evidence, then the presumption would be drawn in favour of the plaintiff or the person which claims the benefit on the presumption. The decisions of the various courts, as produced clearly indicate that the law is unambiguous and straight and it does not compel someone to discharge the burden in a particular manner. Whether the burden is at all required or not to be discharged by the party who instituted the suit can be gathered from the relevant contextual fact and if it is found on scrutiny that the person who has the burden to prove if failed to discharge his burden, then obviously no relief would be granted to that person. 14. This court while analyzing the other aspect whether the burden is discharged to the satisfaction or not, it has to be held on the face of the clear admission by the defendant that by the sale deed, no title has been transferred or conveyed to the defendant in respect of the land pertaining to CS plot No. 366/1407. As such, by that admission it can be held that the suit land is owned by the plaintiff no.2 and the plaintiff no. 1 and 2 possessed the suit land partly and the other part is under illegal possession of the defendant for recovery of which the suit has been instituted. 15. Having regard to all these aspects of the matter, as stated above and particularly in view of the admission made by the defendants in the written statement read with the other evidence it clearly stands out the plaintiff’s case. This court does not find any infirmity in the judgment and hence this appeal stands dismissed.