JUDGMENT : Mir Alfaz Ali, J. This regular second appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Barpeta in Title Appeal No.11/2008, whereby the learned first appellate court dismissed the appeal and decreed the suit of the plaintiffs concurring with the findings of the learned trial court. 2. The plaintiffs filed a suit (T.S. No. 65/1989) for declaration of right, title, and interest over the suit land and recovery of possession. The case of the plaintiffs was that the suit land measuring 16 Bighas 1 Katha 15 Lechas originally belonged to Mofizuddin @ Mofiz Sk., who died in the year 1981 leaving the plaintiffs and the proforma defendants as his legal heirs. Since Mofizuddin had no issue and his wife also died, the property left by Mofizuddin devolved upon the plaintiffs and the proforma defendants, who are son and daughter of the younger brother of late Mofizuddin. As Mofizuddin had no issue, he kept the defendant No. 1 in his house as servant to cultivate his land. Mofizuddin also gifted 5 Bighas of land to said defendant No. 1 and allowed him to stay in his house with his wife. Defendant No. 2 was also not the daughter of late Mofizuddin. Due to poor financial condition of the parents of the defendant No. 2, Mofizuddin brought her to his house as domestic help. Mofizuddin also performed the marriage of the defendant No. 2 and gifted her 2 Bighas of land. After death of Mofizuddin, plaintiffs took over possession of the suit property and allowed the defendant No. 1 to cultivate the suit land on remuneration basis and accordingly the defendant No. 1 cultivated the land and continued to gave the crops to plaintiffs till 1988. However, in the year 1989 the defendant No. 1 denied to give the corps to the plaintiffs and he also collusively recorded his name in the revenue records in respect of 7 Bighas 2 Kathas 13 Lechas of land. As the defendant No. 1 refused to vacate the suit land, the plaintiffs filed the suit for declaration of right, title and interest and recovery of possession. 3. As the defendant No. 1 refused to vacate the suit land, the plaintiffs filed the suit for declaration of right, title and interest and recovery of possession. 3. The pleaded case of the defendants was that the defendants were the son and daughter of late Mofizuddin and after death of Mofizuddin they inherited the suit land and that the plaintiffs had no right, title and interest over the suit land. On the basis of the above pleadings the learned trial court conducted the trial and decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the defendants preferred an appeal and the learned first appellate court having set aside the judgment and decree of the learned trial court, remanded the suit for fresh trial. Upon remand, learned trial court framed the following issues :- 1. Is there any cause of action for the suit ? 2. Is the suit is maintainable in its present form and manner ? 3. Whether the plaintiff has right, title and interest over the suit land ? 4. Whether the defendants are the legal heirs of late Mofiz Uddin Sheikh, the original owner of the suit land ? 5. Whether the mutation of the schedule II land in the name of the defendant no. 1 is illegal and void in law ? 6. Whether the plaintiff is entitled to remove the name of the defendants from the revenue records ? 7. To what relief’s the parties are entitled? 4. Both the parties adduced evidence and after hearing the parties, learned trial court again decreed the suit of the plaintiffs. Aggrieved by and dissatisfied with the judgment of the learned first appellate court, the defendant/appellant preferred the instant second appeal, which was admitted to be heard on the following substantial questions of law : "1. Whether the "burden of proof" which lies upon the plaintiffs can be shifted to the defendants without discharging their burden by the plaintiffs and whether the findings of the learned courts below shifting the burden upon the defendants is substantial in the eye of law ? 2. Whether once an issue is framed for determination by the trial court, can the same be deleted without affording opportunity of hearing to the parties?" 5. I have heard Mr. R. Ali, learned counsel for the appellants and Ms. R. Choudhury for the respondent. 6. Learned counsel for the appellants, Mr. 2. Whether once an issue is framed for determination by the trial court, can the same be deleted without affording opportunity of hearing to the parties?" 5. I have heard Mr. R. Ali, learned counsel for the appellants and Ms. R. Choudhury for the respondent. 6. Learned counsel for the appellants, Mr. R. Ali submitted, that the suit having been filed by the plaintiffs seeking declaration of right, title and interest and recovery of possession, burden was on the plaintiff to establish his case. However, the learned trial court shifted the entire burden on the defendants and thereby failed to appreciate the established principles of law that burden lies with the plaintiff, who approached the court for a decree of title in his favour. 7. Learned counsel Ms. R. Choudhury for the respondent placing reliance on a decision of the Apex Court in Kundanlal Rallaram v. Custodian Evacuee Property, Bombay, (1961) AIR SC 1316 submitted, that although, the initial burden lies with the plaintiff, who approaches the court to pass a decree in his favour, once the plaintiff discharges his initial burden by adducing evidence, which raises a presumption to be rebutted by the defendant, the onus stands shifted to the defendant. Learned counsel further contended, that the plaintiffs filed the suit seeking right, title and interest over the suit land, claiming themselves to be legal heirs of Mofizuddin and also raising the plea that the defendants were not the legal heirs of Mofizuddin, and adduced ample evidence to prove, that defendants were not the legal heirs of late Mofizuddin and thereby discharged their burden. The plaintiffs having discharged their initial burden by adducing evidence, the learned trial court committed no illegality by shifting the burden on the defendants to establish their claim to be the son and daughter of late Mofizuddin, submits Mrs. Choudhury. 8. In the present case, the plaintiffs filed the suit for declaration of their right, title and interest over the suit property claiming that Mafizuddin, the original owner of the land, did not have any issue and therefore, the plaintiffs being the siblings of Mafizuddin's brother, inherited the suit property as the legal heirs of Mofiz Uddin. Whereas the claim of the defendants was that they are the legal heirs of Mofiz Uddin being his son and daughter and are entitled to inherit his property. Whereas the claim of the defendants was that they are the legal heirs of Mofiz Uddin being his son and daughter and are entitled to inherit his property. What is therefore, evident from the pleadings is that the plaintiffs filed the suit for declaration of their title on the basis of negative assertion that the defendants were not son and daughter or legal heirs of Mafizuddin. Since the suit is filed by the plaintiffs for declaration of their title and recovery of possession, necessarily the burden was on the plaintiffs to prove their title, by establishing that the defendants are not the legal heirs of Mofiz Uddin, inasmuch as, admittedly the plaintiffs are the nephew of late Mofizuddin and defendants were in possession of the suit properties. It is no doubt true, that plaintiffs' claim of title is based on a negative assertion. But, that does not absolve the plaintiffs of its burden. This Court in Legal Heirs of Chanowar Hussain Mohammad and Ors.-VS.- Nurjehan Begum, (2015) 4 GauLT 590 relying on a decision of the Apex Court in Anil Rishi- VS- Gurbashaksh Singh, (2006) 5 SCC 558 observed that - "merely because it would be difficult for a litigant to lead evidence to prove a negative fact, the same cannot be a ground for dispensing with the burden of proof under Section 101 and 102 of the Evidence Act." 9. From the provision of Section 101 and Section 102 of the Evidence Act, it is evident that there is a "distinction between the burden of proof as a matter of law and pleadings and burden of proof as a matter of adducing evidence." The former is inflexible and static, while the later is changeable, which is also called onus of proof. Therefore, while dealing with the burden of proof one must keep in mind the nature of any right claimed and nature of assertion in the pleadings made to support the claim of our right. Though initial burden is always with the plaintiff, who approaches the court seeking a relief, once the plaintiff adduces evidence to discharge his burden and makes out a case in his favour burden shifts to the defendant to prove his case to non-suit the plaintiff. This principle becomes more important, when a party claims any right, on the basis of any negative facts or negative assertion. This principle becomes more important, when a party claims any right, on the basis of any negative facts or negative assertion. Reference may be made to the observation made by the Apex Court in Anil Rishi- VS- Gurbashaksh Singh (supra), wherein, the Apex Court observed as follows :- "A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same." 10. Therefore, even in a case, where relief is sought by the plaintiff on the basis of negative assertion, the plaintiff must discharge it's initial burden. It is no doubt true, that the standard of proving a negative fact and a positive fact may not be the same and obviously when a party is required to prove a negative fact, burden would be lesser than in case of positive fact. As regards the nature of evidence required for the plaintiff to discharge the initial burden. Apex Court in Kundanlal Rallaram v. Custodian Evacuee Property, Bombay (supra) held that the evidence required for discharge of initial burden of the plaintiff, so as to shift the burden to the adverse party need not necessarily be the direct evidence or oral or documentary evidence or admission by a party. It may comprise of circumstantial evidence or presumption of law or fact. Therefore, it is not necessary that always the plaintiff has to adduce some positive evidence to discharge his burden. It may comprise of circumstantial evidence or presumption of law or fact. Therefore, it is not necessary that always the plaintiff has to adduce some positive evidence to discharge his burden. What is necessary is that there must be evidence and materials on record, irrespective of who brought on record such evidence on record, which is sufficient to discharge the initial burden of the plaintiff. Once the plaintiff succeeds in discharging his initial burden, the onus stands shifted to the defendant. But the court must be satisfied that the plaintiff has discharged his initial burden and then only the question of shifting the onus would arise. 11. In Rangammal-VS- Kuppuswami and Anr., (2011) 12 SCC 220 , the Apex held as under :- "Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party." 12. Therefore, before shifting burden to the defendants, the court must come to a finding that the plaintiffs have discharged their burden and until the court arrives at such a conclusion that plaintiffs have discharged their burden, court cannot shift the burden to the defendants or proceed to decide the suit on the basis of the weakness of the defendants' case or the weakness in the evidence adduced by the defendants. Because it is the trite law that in a suit for declaration of title and recovery of possession, plaintiff must succeed on his own strength and cannot take the advantage of the weakness of defendants' case. 13. Learned trial court framed a specific issue (issue no. 4) to the effect as to whether the defendants are legal heirs of Lt. Mofizuddin Sk., being the original owner of the suit land. The issue No. 3 was framed to the effect, as to whether the plaintiffs have right, title and interest over the suit land. 13. Learned trial court framed a specific issue (issue no. 4) to the effect as to whether the defendants are legal heirs of Lt. Mofizuddin Sk., being the original owner of the suit land. The issue No. 3 was framed to the effect, as to whether the plaintiffs have right, title and interest over the suit land. Both the issues were jointly decided by the learned trial court and while deciding the issue No. 4, the learned trial court discussed the evidence of PW-1 as well as the evidence adduced by the defendants, and after discussing all the evidence adduced by the defendants, came to the finding that defendants have not been able to establish that they are the son and daughter and legal heirs of late Mofizuddin and then proceeded to decide the issue of title and held that the plaintiffs being the son and daughter of late Mofizuddin's younger brother, they are the legal heirs in absence of any sons and daughters of late Mofizuddin. However, the learned first appellate court appreciated all the evidence adduced by both the sides and ultimately held that the defendants failed to establish that they are sons and daughters of Mofizuddin and decided the issue of title in favour of the plaintiffs. 14. The PW-2, who was 75 years of age at the time of deposing in court, stated that the defendants were not the sons and daughters of late Mofizuddin. He stated specifically that the defendant Kalu Sheikh was the son of Jane Fakir, who was the resident of village Abhayapuri and Mofizuddin Sk. kept defendant no. 1 in his house as domestic help. He also stated that defendant No. 2, Golapi was the daughter of one Lt. Taser Ali and Mofiz kept Golapi in his house as maid servant, as they have no children. He further deposed that Mofizuddin also gifted 2 Bighas of land to said Golapi (defendant No. 2). Thus, the evidence of PW-2, which supported the claim of the plaintiffs remained unshaken during crossexamination. DW-2 also admitted in his evidence that Mofizuddin brought defendant No. 2, Golapi Khatun while she was child. The Ext.-5, the gift deed in favour of Golapi Khatun also clearly shows that as she was looking after the wife of Mofizuddin, who was childless, 2 Bighas of land was gifted to Golapi out of love and affection. DW-2 also admitted in his evidence that Mofizuddin brought defendant No. 2, Golapi Khatun while she was child. The Ext.-5, the gift deed in favour of Golapi Khatun also clearly shows that as she was looking after the wife of Mofizuddin, who was childless, 2 Bighas of land was gifted to Golapi out of love and affection. In view of the above clear evidence brought on record and admission of the DW-2, it cannot be said that the plaintiff did not discharge his initial burden to prove that the defendants were not the biological children of Mofizuddin. When there was evidence on record including admission of the defendants' witnesses clearly supporting the case of the plaintiffs, that the defendants were not biological children of Mofizuddin, the onus necessarily stood shifted to the defendants to establish that they were biological children and legal heirs of Mofizuddin. Therefore, I do not find any substance in the submission of the learned counsel for the appellant, that the learned first appellate court wrongly shifted the burden to the defendant without the plaintiffs having discharged their initial burden. 15. The impugned judgment and decree transpires that the learned first appellate court having considered and appreciated the evidence adduced by both the sides, rejected the evidence adduced by the defendants to establish their claim, that they were the legal heirs of Mofizuddin as his son and daughter and thereby came to the concurrent findings that the defendants were not the biological siblings of Mofizuddin. Such concurrent findings of both the courts, holding that the defendants are not the legal heirs of Mofiz Uddin is obviously a concurrent finding of facts, which, in my considered view, is not amenable to challenge in second appeal, inasmuch as, nothing could be pointed out to attribute perversity to the impugned judgment. When there was positive evidence as well as admission of the defence witness supporting the plea of the plaintiff that the defendants were not the biological children of Mofizuddin and thereby discharging the initial burden of the plaintiffs, onus of proof necessarily stood shifted on the defendant to rebut such evidence, inasmuch as, the specific claim of the defendants was that they were the son and daughter of late Mafizuddin. Therefore, in the facts and circumstances of the case in hand, it cannot be said, that the burden was shifted to the defendants wrongly without any material on record, and as such, the learned first appellate court cannot be blamed for wrong shifting of burden. The substantial question No. 1 is answered accordingly in favour of the plaintiff/respondent. 16. Rule 5 of Order XIV CPC reads as follows :- "Power to amend and strike out, issues- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced." 17. A plain reading of the provision of Rule 5 of Order XIV CPC would show that the court may at any time before passing a decree, amend/alter or strike out any issue wrongly framed or introduced. Since issues are framed on the basis of pleadings of the parties, the court is empowered to add, alter or amend any issue at any time before passing the decree. Only when any additional issue or issues is/are framed at a later stage or after closing of evidence, the natural justice demands that the parties should be given opportunity to adduce evidence in support or against such additional issues. Obviously this is not the case here. Therefore, in view of the clear provision of Order XIV Rule 5 of the CPC as above, the substantial question No. 2 framed in the instant case is not at all a substantial question of law arising in the suit. The Apex Court in Santosh Hazari -VS.- Purushottam Tiwari, (2001) 3 SCC 179 , succinctly defining the substantial question of law observed that " To be a 'substantial', question of law, a question of law must be debatable, not previously settled by law of the land or binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned". Therefore, in view of Order XIV Rule 5 CPC, the substantial question of law No. 2, is not a substantial question arising in the case, and as such, need not be answered. 18. In view of what has been stated above, and the answer to the substantial questions of law, this second appeal appears to be without merit and accordingly dismissed. Parties to bear their cost. 19. Send back the LCR.