JUDGMENT Dr. D.P. CHOUDHURY, J. - This is an appeal preferred against R.F.A. No. 84 of 2012 which confirmed the judgment and decree passed by the learned trial court. 2. This appeal filed by the original plaintiff against the original defendants arrayed as Respondents or the legal heirs of the respondents who have expired in the meantime. For convenience the original plaintiff and defendants referred in this appeal. 3. The case of the plaintiff in brief is that the parties are related to each other by virtue of the following genealogy:- GENEALOGY Sirai Ratan Sanei Shyama Gurubai Jagabandhu Dinabandhu Banamali (Plant.) Bhagabata Ghanashyam (D.1) Dead Parsuram(D.2) Janha (ka) Ramesh (D.3) Suresh (D.4) Paresh (D.5) Umesh (D.6) Pramesh (D.7) Renuka (D.8) Minati (D.9) Arati (D.10) Bharati (D.11) 4. According to the aforesaid genealogy after death of the common ancestor Sirei the joint family property devolved upon Ratan, Sanei and Shyama. During life time Sanei separated from Ratan and Shyama. While Ratan and Shyama were living together, Ratan and his wife Gurubari died issueless. As Sanei has already separated from his brothers , the 2/3rd share of Ratan and Shyama devolved upon Syhama by survivorship. Accordingly, after death of Sanei his 1/3rd share devolved upon his brother Bhagabat. There was a daughter Janha born to Bhagabat, but she died before the Hindu Succession Act, 1956 came into force. Shyama has got two sons, Jagabandhu and Dinabandhu. Dinabandhu died issueless. So Jagabandhu enjoyed 2/3rd share being the son of Shyama Prusti. During sabik settlement, Jagabandhu was recorded as son of Ratan Prusti by mistake, but Jagabandhu has got service record and pension record as son of Shyama Prusty. Not only this, but also in Civil Suit No.232 of 1961 and Civil Suit No. 215 of 1962, Jagabandhu has deposed as son of Shyama Prusti. In the voter list and on different deeds he has been arrayed as son of Jagabandhu. Although there was no partition by registered document, but there was amicable settlement of shares over the suit land between Shyama and his other brothers. Accordingly, they have been possessing the suit land for convenience according to their respective shares. In different litigation Jagabandhu has been arrayed as son of Shyama. 5. The defendants are the legal heirs of Sanei. As the suit properties have not been partitioned by metes and bounds, but possessed according to above arrangement. Accordingly, they have been possessing the suit land for convenience according to their respective shares. In different litigation Jagabandhu has been arrayed as son of Shyama. 5. The defendants are the legal heirs of Sanei. As the suit properties have not been partitioned by metes and bounds, but possessed according to above arrangement. The legal heirs of Shyama being the plaintiff, demanded partition of the suit property before the defendants. As they did not listen, the suit was filed for partition in accordance with law. 6. Per contra, the defendants filed written statement maintaining inter alia that the suit is not maintainable and all the suit properties have not been asked for partition. The defendants denied about 2/3rd share of the plaintiff upon the suit land. They have also adduced another genealogy which is as follows:- GENEALOGY Sirei Prusti Ratan Sanei Shyama =Gurubari Jagabandhu Dinabandhu Banamali Bhagabat Ghanashyam Parsuram 7. According to the defendants, Sirei Prusti has three sons, Ratan, Sanei and Shyama. Ratan actually has got one son, Jagabandhu who is actually the father of the plaintiff Banamali. Shyama has got one son, Dinabandhu who died issueless. Jagabandhu is not the son of Shyama. As per the defendants Sanei, Ratan and Dinabandhu were living jointly. After death of Dinabandhu the 1/3rd share of Shyama became devolved upon Ratan and Sanei. It is not a fact that Ratan and Gurubari died issueless. 8. In the sabik settlement the suit land stands recorded in favour of parties where Jagabandhu has been arrayed as son of Ratan Prusti. After death of Shyama and Dibanahdu their 1/3rd share devolved upon the legal heirs of Ratan and Sanei. As such, the defendants claim half share in the suit properties. There is another immovable property recorded in M.S. Khata No. 243 at mauza Gabasahi and said property has not been included in the suit, for which the present suit is not maintainable. According to the defendants, the entire joint family properties should be included for partition. There is no cause of action to file the suit, but the plaintiff in order to carve out more share has filed the suit. 9. As per the pleadings of both parties, the learned trial court framed the following issues:- 1) Is there any cause of action for the plaintiff to file the suit? 2) Whether Jagabandhu is the son of Ratan or Shyama? 9. As per the pleadings of both parties, the learned trial court framed the following issues:- 1) Is there any cause of action for the plaintiff to file the suit? 2) Whether Jagabandhu is the son of Ratan or Shyama? 3) What are the share of the parties? 4) To what other reliefs, if any, the plaintiff is entitled to? 10. The learned trial court after discussing the evidence of both parties held that Jagabandhu, father of the plaintiff is son of Shyama Prusti, but not the son of Ratan. It also held that the plaintiff is entitled to 2/3rd share from the suit property. So, the suit was decreed preliminarily defining 2/3rd share of the plaintiff and 1/3rd share of the defendants. 11. Against the judgment and decree of the learned trial court the appeal was preferred before the learned District Judge, Bhadrak. The learned District Judge, Bhadrak while deciding the appeal, did not frame the point for determination, but however concluded the confirmed finding of the learned trial court that the plaintiff is entitled to 2/3rd share of the suit property and the defendants are entitled to 1/3rd share of the suit property. The learned appellate court also observed that Jagabandhu is the son of Shyama, but not the son of Ratan. As such, the learned appellate court dismissed the appeal by confirming the judgment and decree of the learned trial court. 12. Against the said First Appeal, the present Second Appeal is preferred, where it is admitted on the following substantial question of law:- “ Whether the courts below have erred in law by holding that members of plaintiffs branch are entitled to get 2/3rd share over the suit properties, accepting position of Jagabandhu, the plaintiff’s further assigned as in the plaint; that too when Banamali being alive has been withheld from the witness box in deposing his father’s status which calls for drawal of adverse inference upon the case of the plaintiff?” SUBMISSIONS 13. Mr. Mishra, learned counsel for the appellants submitted that the learned courts below have erred in law by observing that Jagabandhu is the son of Shyama, but in fact in M.S. R.O.R. published in 1930, Jagabandhu was arrayed as son of Ratan, but not the son of Shyama. The plaintiff has mischievously in order to grab 2/3rd share has described as son of Shyama. The plaintiff has mischievously in order to grab 2/3rd share has described as son of Shyama. Learned counsel for the appellants further submits that the genealogy given by the defendants were not properly considered, for which this Court is required to intervene. The learned courts below should have drawn adverse inference against the plaintiff for not having examined himself, whereas his son gave evidence. 14. The learned courts below have erred in law awarding 2/3rd share to the plaintiff, whereas the plaintiff is entitled to half share and defendants are entitled to half share in the suit property. The learned courts below have failed to appreciate the evidence on record about amicable settlement between the parties with regard to their respective share. On the other hand, without any evidence the courts below have come to the conclusion allowing partition for 2/3rd share in the suit properties in favour of the plaintiff although they are entitled to 50%. 15. Mr. Rath, learned counsel for the Respondents submitted that the defendants contested the present suit as well as an independent suit vide T.S. No.226 of 2000 claiming partition purportedly in respect of the self acquired property of the plaintiff. According to him, in T.S. No.226 of 2000 there was also finding of the Civil Court that Jagabandhu is the son of Shyama. There was also suit between the parties vide T.S. No. 229 of 1998, where the status of the parties also decided and Jagabandhu has been arrayed as son of Shyama Prusti. 16. Mr. Rath, learned counsel for the Respondents further submitted that in T.S. No.215 of 1962 Jagabadhu has adduced evidence as son of Shyama Prusti. Not only this, but also the pension papers, certificate records of Jagabadhu has been prepared describing as son of Shyama. Mr. Rath, learned counsel for the Respondents submitted that the present appellants had filed two separate appeals against the judgment and decree in T.S. No. 226 of 2000 in R.F.A. No.83 of 2012 and also preferred R.F.A. No.84 of 2012. Both the appeals have been dismissed by the learned District Judge, Bhadrak. Thus, the findings of T.S. 226 of 2000 has attained finality having not been preferred with Second Appeal. But the Second Appeal has been filed challenging the judgment and decree in R.F.A. No.84 of 2012. Both the appeals have been dismissed by the learned District Judge, Bhadrak. Thus, the findings of T.S. 226 of 2000 has attained finality having not been preferred with Second Appeal. But the Second Appeal has been filed challenging the judgment and decree in R.F.A. No.84 of 2012. According to him, since the issue with regard to status of Jagabandhu has attained finality in R.F.A. No.83 of 2012, adjudication of that issue again in the present Second Appeal is barred by res judicata. He relied on the decision reported in 1993 Supp (2) S.C.C. 146 (Premier Tyres Limited v. Kerala State Road Transport Corporation) and (1977) 2 SCC 181 (Narayana Prabhu Venkateswara Prabhu v. Narayana Pradbhu Krishna Prabhu (Dead) by LRs.). 17. Mr. Rath, learned counsel for the Respondents further submitted that when upon the evidence on record there is concurrent finding of fact that Jagabandhu is the son of Syama, the Second Appeal is not maintainable against such concurrent finding. He relied on the decision in 2002 (Supp.) OLR 44 (Dhansingh Majhi and others v. Duaru Majhi and others) and 2010 (II) CLR (SC) 47 (Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors.). DISCUSSION: 18. It is the admitted fact that the parties are related to each other. It is not in dispute that there is no partition of the suit property till the date of filing of the suit, although they are in possession of the joint family property by convenience. It is also admitted fact that besides this suit, there is another suit filed vide T.S. No.226 of 2000 by the present appellants against the present Respondents seeking partition of self acquired property of the Respondents and that suit was dismissed and against it R.F.A. No.83 of 2012 was filed before the learned District Judge, whereby same was dismissed, but no Second Appeal was filed. 19. The issue with regard to whether son of Shyama Prusti or Ratan Prusti, the plaintiff claims that plaintiff’s father is the son of Shyama Prusti, whereas the contesting defendants took the plea that the plaintiff’s father is the son of Ratan Prusti. 20. Learned trial court has concluded the Issue No.2 by rendering finding that the plaintiff’s father is the son of Shyama Prusti, but not the son of Ratan Prusti. 20. Learned trial court has concluded the Issue No.2 by rendering finding that the plaintiff’s father is the son of Shyama Prusti, but not the son of Ratan Prusti. His finding was based on the M.S. R.O.R. bearing Khata No.244 published in 1986 and also the documents relied on by the plaintiff in T.S. No.226 of 2000-01 which was heard analogously along with the suit against which the present Appeal has been filed. The judgment of the learned trial court also depends on the deposition of Jagabandhu in T.S. No.215 of 1962, where Jagabandhu has deposed his son of Shyama Prusti. The learned trial court relied on the Pension Papers, service records and voter list of Jagabandhu Prusti. He has also discussed the documents of the defendants where in C.S. R.O.R. Jagabandhu was arrayed as son of Ratan Prusti. Said C.S. R.O.R. relates to the year 1930, but the M.S. R.O.R. relates to the year 1986. Learned trial court has also observed that the present defendants raised objection during M.S. operation, but dismissing their objection, the M.S. R.O.R. was issued showing Jagabandhu as the son of Shyama. Thereafter the same has not been challenged which has reached finality. 21. Learned appellate court while agreeing with the finding of the learned trial court has categorically held that Jagabandhu is the son of Shyama. Since this finding is concurrent, it has to be seen whether they are perverse to the evidence on record? 22. Learned counsel for the appellant raised objection that the findings of the courts below are perverse, because the plaintiff has not examined himself, but adduced the evidence through his son. According to him, the adverse inference should be drawn against the plaintiff for not examining the plaintiff in the suit. On the other hand, learned counsel for the Respondents submitted that since the plaintiff is unwell and bedridden as available from the evidence of P.W.1 and the case of the plaintiff was otherwise proved, no adverse inference can be drawn against the case of the plaintiff. 23. It is reported in the case of Vidhyadhar v. Manikrao & Anr, A.I.R. 1999 S.C. 1441, where Their Lordships observed at paragraph-16 as follows:- “16. 23. It is reported in the case of Vidhyadhar v. Manikrao & Anr, A.I.R. 1999 S.C. 1441, where Their Lordships observed at paragraph-16 as follows:- “16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230 . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 193) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh. Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case ( AIR 1927 PC 230 ) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” 24. With due regard to the aforesaid decision it appears that Section 114 of the Evidence Act allowed the court to draw presumption against a party to abstain from entering the witness box. Of course it would give rise to an adverse inference against him. Section 114 of the Evidence Act is as follows:- “Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 25. The aforesaid provision of law gives discretion to Court to draw presumption. It must be remembered that every presumption is rebuttable. The aforesaid provision of law gives discretion to Court to draw presumption. It must be remembered that every presumption is rebuttable. If the Court is convinced that the party is abstained due to unavoidable circumstance and case is otherwise proved, the adverse inference may not be drawn due to non-examination of party. 26. In the instant case, it is clear from the evidence of P.W.1, who is the son of the plaintiff that he is authorized in this case to depose. Also he has stated clearly in examination-in-chief that his father is not well and bedridden. There is no crossexamination by the defendants to this witness in this regard. When the plaintiff himself is bedridden and as per the cause title he was 69 years old by then, the explanation of P.W.1 for non13 examination of the plaintiff cannot be doubted. 27. Moreover, in the instant case the evidence of the plaintiff adduced through his son (P.W.1) is clear to show that he is looking after the case and he has got knowledge of the genealogy as learnt by him from his father. There is no dispute that the service records, voter list and other documents as exhibited in the other suit, T.S. No.226 of 2000 which was heard analogously as observed by the courts below without being challenged by the defendants, show that Jagabandhu is the son of Shyama. The plaintiff adduced Ext.1 which is M.S. R.O.R. published in 1986 goes to show that Jagabandhu is the son of Shyama. Now the question arises, can the R.O.R. be relied on to find out the status of a person, because the settlement authorities have no jurisdiction to record any other fact than the powers conferred on them by the statute. No doubt it is settled in law that settlement authorities are empowered to record the position of a person over the immovable property. The recording of status of a person is ancillary to the power conferred upon the settlement authority but not delegated. So, Ext.1 even though shows that it is a R.O.R. showing Jagabadhu as son of Shyama cannot be conclusive proof. Similarly, the defendants have taken the C.S. R.O.R., where Jagabandhu has been arrayed as son of Ratan vide EXts. A and B in respect of C.S. plot No.243. So, Ext.1 even though shows that it is a R.O.R. showing Jagabadhu as son of Shyama cannot be conclusive proof. Similarly, the defendants have taken the C.S. R.O.R., where Jagabandhu has been arrayed as son of Ratan vide EXts. A and B in respect of C.S. plot No.243. That record relates to 1930, but it is also the settlement R.O.R. Due to the above reason, when the M.S. R.O.R. of the plaintiff cannot confer the status, the C.S. R.O.R. produced by the defendants also not be relied on to find out the status of Jagabandhu. 28. Assuming that the R.O.Rs. are also believed, the latest R.O.R. being the M.S. R.O.R., where Jagabandhu has been arrayed as son of Shyama has been challenged by the defendants during settlement operation, but that challenge has been defeated. According to the R.O.R. published in the year 1986 against which no Appeal or Revision or civil suit was filed and the same attained finality. So, the latest R.O.R. prevails showing Jagabandhu as son of Shyama, if the R.O.Rs. are taken as original of title in absence of any other material. 29. Bereft of the R.O.R. there are other public documents as stated above, which go to show that Jagabandhu has been maintained as son of Shyama. When the Government records are maintained to show the status of Jagabandhu without being fabricated, the evidence of P.W.1 coupled with the documents clearly proved that Jagabandhu is the son of Shyama, but not Ratan. So, the concurrent finding of the courts below cannot be said to be perverse against the evidence on record. It is reported in the case of Damodar Lal v. Sohan Devi and others; AIR 2016 SC 262 , where Their Lordships observed at paragraphs-13 and 16 as follows:- “13.Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. xx xx xx 16. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.” 30. With due regard to the said decision in the instant case the finding of the learned courts below that Jagabandhu is the son of Shyama cannot be assailed in the Second Appeal. 31. With due regard to the said decision in the instant case the finding of the learned courts below that Jagabandhu is the son of Shyama cannot be assailed in the Second Appeal. 31. Now the plea of the plaintiff is that Ratan and Shyama are living jointly by enjoying 2/3rd share of the property and the common ancestor of the defendants was enjoying 1/3rd share. That is also available from the M.S. R.O.R. as per Ext.1. There may not be partition, but the document shows the manner of enjoying the properties by the co-sharers. Since the document vide Ext.1 could not be assailed in any Revision or Appeal, the same has been rightly followed by the learned courts below. It is the admitted fact that the branch of Ratan is extinguished, because Ratan and his wife Gurubari died issueless. It is also not in dispute that Shyama’s other son Dinabandhu died issueless. So, Jagabandhu, the father of the plaintiff has got 2/3rd share and Sanei, who is the common ancestor of the defendants, has got 1/3rd share. Same view has been taken by the courts below and there is no other view possible to be taken in this Appeal. 32. In terms of the above discussion, the substantial question of law is answered that no adverse inference can be drawn against the case of the plaintiff for non-examination of the plaintiff and the position of Jagabandu being accepted as son of Shyama, the branches of the plaintiff are entitled to 2/3rd share over the suit properties and appellants are entitled to 1/3rd share. In the result, the Second Appeal being devoid of merit, stands dismissed and the judgments and decree of the courts below are hereby confirmed. The L.C.R. be returned back forthwith. Appeal dismissed.