ORDER : 1. Heard Mr. P.K. Das, learned counsel for the appellants at the stage of admission under Order XLI, Rule 11 of the CPC. 2. The appellants are the defendants in T.S. No. 103/2011, which was filed by the respondent for declaration of right, title, interest and confirmation of possession over the suit land described in Schedule-B, C, and D of the plaint, for permanent injunction and other reliefs. The said suit was decreed vide judgment and decree dated 20.05.2016, passed by the learned Civil Judge No.2, Kamrup (M), Guwahati. The aggrieved appellants had preferred an appeal, which was registered as T.A. No. 16/2016, which was dismissed by the learned Addl. District Judge (FTC) No.3, Kamrup (M), Guwahati vide judgment and decree dated 14.11.2019. This appeal is directed against concurrent finding of the learned Courts below. 3. In brief, the case projected in the plaint is that Bhulia Boro and Amulya Boro were the original pattadars of land measuring 7B-1K-0L, covered by Dag No. 9 (old)/ 145 (new) of K.P. Patta No. 55 (old)/1191 (new) of Village- Jyotikuchi, Mouza- Beltola in the district of Kamrup (M). Vide sale deed no. 924 of 1970, they sold 3B-2K-10L of aforesaid land to Mahendra Basumatary, father of appellants, in whose names the said land was mutated and upon his death, the land was mutated in the names of the appellants and their mother Subhadra Basumatary. It is projected that the appellants had appointed Narayan Basumatary as their constituted attorney vide registered special power of attorney bearing registered deed no. 2603/91 dated 15.11.1991, empowering him to sell 3B-2K-10L land to Dhananjoy Kr. Dey and accordingly, after obtaining permission from the Deputy Commissioner, vide registered sale deed no. 2793 dated 29.04.1992, 3B land was sold to the said Dhananjoy Kr. Dey. Thereafter, the said Dhananjoy Kr. Dey sold 1K of the said land to one Smt. Swapna Das (proforma defendant no. 1), vide registered sale deed no. 7548/07 dated 07.06.2007 after obtaining permission from the Deputy Commissioner and G.M.D.A., who in turn sold the said 1K land to the respondent vide registered sale deed no. 10528 dated 04.09.2009 after obtaining permission from the Deputy Commissioner. It is further projected that Dhananjoy Kr. Das sold 2K out of his remaining land to Bhanuranjan Das (proforma defendant no.2) vide registered sale deed no. 10528 dated 04.09.2009 after obtaining permission from the Deputy Commissioner. It is further projected that Dhananjoy Kr. Das sold 2K out of his remaining land to Bhanuranjan Das (proforma defendant no.2) vide registered sale deed no. 7549/07 dated 07.06.2007 after obtaining permission from the Deputy Commissioner and thereafter, sold the said land to the respondent- plaintiff vide registered sale deed no. 10527 dated 04.09.2009 after obtaining permission from the Deputy Commissioner. The said Dhananjoy Kr. Dey sold another 1K land to Smt. Swapna Dutta Roy (proforma defendant no. 3) vide registered sale deed no. 7547/07 dated 07.06.2007 after obtaining permission from the Deputy Commissioner and G.M.D.A., who in turn sold the said 1K land to the respondent vide registered sale deed no. 10526 dated 04.09.2009 after obtaining permission from the Deputy Commissioner. The said purchased plots of land were mutated in the name of the respondent- plaintiff. It was projected in the plaint that sometime the respondent resided there and some time a chowkidar was appointed by the respondent-plaintiff and proforma defendant nos. 4 to 10 to reside there. On 28.12.2010, the respondent was threatened by the appellants with eviction, as such, the respondent approached the Court of Addl. District Magistrate, Kamrup (M), Guwahati by filing proceeding under section 145 Cr.P.C. and to attach the land and accordingly, the suit land was attached by the Addl. District Magistrate, Kamrup (M), vide order dated 28.01.2011 passed in Case No. 9m/2011. Thereafter, the suit was filed. 4. On contest by the appellants, the suit was heard by framing the following issues for trial, viz., (1) Whether there is cause of action for the suit? (2) Whether the suit is maintainable in its present form and manner? (3) Whether the suit is barred by limitation? (4) Whether the suit is bad for defect of parties? (5) Whether the plaintiff has right, title, interest over the suit Schedule B, C, D land and entitled to confirmation of possession thereof? (6) Whether the plaintiff is entitled to the decree and/or relief as prayed for? (7) To what other relief or reliefs, parties of this suit are entitled for? 5. The respondent- plaintiff had examined herself as PW-1 and had exhibited the following documents, viz., sale deeds dated 04.09.2009 (Ext. Nos. 1 and 2), sale deed of 01.09.2009 (Ext.3), mutation order (Ext.4), and certified copy of jamabandi (Ext.5). (7) To what other relief or reliefs, parties of this suit are entitled for? 5. The respondent- plaintiff had examined herself as PW-1 and had exhibited the following documents, viz., sale deeds dated 04.09.2009 (Ext. Nos. 1 and 2), sale deed of 01.09.2009 (Ext.3), mutation order (Ext.4), and certified copy of jamabandi (Ext.5). The appellants had examined appellant no.4 as DW-1 and did not exhibit any document. 6. The learned trial Court answered issue no.2 by holding that the suit was maintainable on the ground that the learned counsel for the appellants had not pressed the issue. In respect of issue no.4, it was held that the suit was not hit by non- joinder of necessary parties. In respect of issue no.5, it was held that the respondent was not cross examined on the point of execution of Ext.1, 2 and 3 sale deeds and that she was not given any suggestions as regards the said exhibits, as such, presumption of valid execution and registration of said sale deeds was drawn and finding that there was nothing to disbelieve the respondent regarding attempt of the appellants to dispossess her, and it was also held that the boundary in the sale deed was incorrect which was rectified and it was held that the respondent had probabilized her right, title, interest and possession over the suit land and the said issue was decided in favour of the respondent. Issue no.3 was decided in the negative by holding that the suit was within the period of limitation. Resultantly, issue nos. 1, 6 and 7 were also decided in favour of the respondent and the suit was decreed. 7. The learned first appellate Court formulated the question of “ whether the judgment and decree passed by the learned trial Court below is perverse and needs interference of this Court?” as a point of determination and after re-appreciating the evidence on record held that the respondent has been able to prove her right, title, interest and possession over the suit land and that the sale deeds contained incorrect boundaries, which was rectified vide Ext. nos. 4, 5 and 6 and that the respondent as in possession of the purchased land and believed that the appellants had made attempt to dispossess the respondent. nos. 4, 5 and 6 and that the respondent as in possession of the purchased land and believed that the appellants had made attempt to dispossess the respondent. Accordingly, the appeal was found devoid of any merit and the same was dismissed by affirming the judgment and decree passed by the learned trial Court. 8. The learned counsel for the appellants has referred to the written statement filed by them and it is submitted that the appellants had specifically denied the execution of power of attorney in favour of Narayan Basumatary and, as such, it is submitted that the learned trial Court had committed gross error of not framing issue on the same and as a result, arrived at incorrect finding. Hence, it is submitted that two substantial questions of law arise in this appeal, viz., (1) Whether a suit can be decided by ignoring the pleaded facts?, and (2) whether the appellants and defendants executed the alleged special power of attorney no. 2603/19 dated 15.11.1991 in favour of Narayan Basumatary? In support of his submissions, the learned counsel for the appellant has cited the following cases, viz., (1) The Church of Christ Charitable Trust, etc. Vs. Ponniamman Educational Trust, etc., (2012) 8 SCC 706 ; (2) Anonda Chandra Saikia Vs. Madhu Ram Saikia, (2009) 1 GLR 701: (3) Sunamani Nath Vs. Sukumari Deb & Ors., (2009) 3 GLR 56; (4) Hero Vinoth (Minor) Vs. Seshammal, (2006) 5 SCC 545 ; (5) Dolly Khonglah & Anr. Vs. Dilip Kumar Singhania & Anr., (2008) 2 GLR 582; and (6) Dwijendra Mohan Lahiri, AIR 1971 Gau 143 . 9. It is seen that although the appellants had averred in their written statement regarding denial of executing special power of attorney, but the appellants had not prayed for its cancellation of for the said registered document to be annulled. Moreover, no attempt was made during trial or at the appellate stage to call for the said document and proving their plea that it was signed, executed and registered by them and that they did not nominate, constitute or appoint any attorney vide registered deed no. 2603/91 dated 15.11.1991. The appellants have also not prayed for cancelling any sale deeds which came to existence on the strength of such special power of attorney. 10. 2603/91 dated 15.11.1991. The appellants have also not prayed for cancelling any sale deeds which came to existence on the strength of such special power of attorney. 10. It is also seen that the learned trial Court had returned a specific finding that the respondent was not cross examined on the point of execution of Ext.1, 2 and 3 sale deeds and that she was not given any suggestions as regards the said exhibits, as such, presumption of valid execution and registration of said sale deeds was drawn. In this regard, except for submitting that in their written statement, the appellants had denied the execution of special power of attorney, no attempt has been made by the learned counsel for the appellant to demonstrate how the said finding as returned by the learned trial Court was grossly erroneous when no attempt was made to call for the said special power of attorney and to prove their plea that the appellants did not execute the same. In the absence of such an attempt, presumption can be drawn under section 114 Ill.(e) of the Evidence Act, 1872 that judicial and official acts were regularly performed and presumption can also be drawn under section 114 Ill.(g) of the said Act that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 11. The plea of the appellant can also be tested in light of section 102 of the Evidence Act, 1872, regarding on whom the burden of proof lies, which provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In the present case in hand, the appellants had taken a plea that they did not execute the power of attorney, but did not tender any evidence to that effect. Therefore, the appellants did not discharge their burden of proving their stand and moreover, as no evidence was tendered by any side, the appellant’s plea had failed. 12. The High Court in exercise of jurisdiction under section 100 CPC is not to reappreciate the evidence and decide an issue of fact, save and except as provided in section 103 CPC, which reads as follows:- “103. Power of High Court to determine issue of fact. 12. The High Court in exercise of jurisdiction under section 100 CPC is not to reappreciate the evidence and decide an issue of fact, save and except as provided in section 103 CPC, which reads as follows:- “103. Power of High Court to determine issue of fact. – In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.” 13. In connection with powers under section 103 CPC, in the case of Shri Bhagwan Sharma Vs. Smt. Bani Ghosh, AIR 1993 SC 398 , the Supreme Court of India had held to the effect that High Court is entitled to find out as to whether finding of fact of first appellate Court were vitiated on account of non- consideration of admissible evidence. In the case of Md. Majibur Rahman Vs. Md. Sabed Ali & 42 others, 1996 (1) GLT 272, this Court had held that finding of fact cannot be interfered with in second appeal unless it is shown to the satisfaction of the Court that the finding on any issue by the lower appellate Court was perverse and it was further held that perversity of finding and not mere erroneous finding of fact may justify interference by High Court. However, as in the present case in hand, there is no evidence to be appreciated on the point of non- execution of special power of attorney, no case is made out for interference with the concurrent finding on fact. 14. The learned counsel for the appellant had submitted that in cross examination, the PW-1 had stated that she did not make enquiry regarding power of attorney and accordingly, it is submitted that the respondent did not make proper search of title. In this regard, it must be remembered that the appellants had appointed Narayan Basumatary as their constituted attorney vide registered special power of attorney bearing registered deed no. 2603/91 dated 15.11.1991, empowering him to sell 3B-2K-10L land to Dhananjoy Kr. In this regard, it must be remembered that the appellants had appointed Narayan Basumatary as their constituted attorney vide registered special power of attorney bearing registered deed no. 2603/91 dated 15.11.1991, empowering him to sell 3B-2K-10L land to Dhananjoy Kr. Dey and accordingly, after obtaining permission from the Deputy Commissioner, vide registered sale deed no. 2793 dated 29.04.1992, 3B land was sold to the said Dhananjoy Kr. Dey, who in turn sold to three vendees from whom the respondent had purchased land. The appellants have not pleaded that they were not aware of such transfer by their attorney or mutation of the names of subsequent purchasers in respect of the suit land. The transfers by otherwise valid sale deeds were never assailed. Therefore, in the absence of any issue, and in the absence of any proof tendered by the appellants, there was no necessity of the learned Courts below to decide whether the ignorance of power of attorney by the respondent was fatal to her case. 15. The learned counsel for the appellant had raised the plea of non- framing of issue with regard to non-execution of special power of attorney. It is seen that the appellants did not raise grievance regarding non- framing of issues in the appropriate stage of the suit. In the case of Md. Majibur Rahman (supra), this Court had held that non framing of issues cannot be allowed to be urged as a ground in Second Appeal. Therefore, the Court is of the considered opinion that although plea of no execution of special power of attorney was taken in the written statement, but the appellants did not insist on the said point to be formulated as an issue and did not lead any evidence, in second appeal, the Court is not to frame a substantial question of law on a point which was not the subject matter of an issue and not proved during trial or in course of first appeal by invoking appropriate provisions of law to lead evidence at appellate stage. In the case of Bachhaj Nahar V. Nilima Mandal, (2008) 17 SC 491, it has been held, inter-alia, that a factual issue cannot be raised or considered for the first time in a second appeal. 16. In the case of Bachhaj Nahar V. Nilima Mandal, (2008) 17 SC 491, it has been held, inter-alia, that a factual issue cannot be raised or considered for the first time in a second appeal. 16. None of the cases cited by the learned counsel for the appellant is found relevant to the point urged because from the ratio of the cited cases, it cannot be culled out that it was the burden of the plaintiff to prove due execution of power of attorney of link vendor when the plea that the appellants had averred in the plaint that they had not executed the power of attorney and did not prove the point. None of the cited cases lay down the law that issue of fact can be re-examined in second appeal. Therefore, there is no necessity of burdening this judgment with the detailed discussions on the cases cited as they do not help the appellant in any manner. However, the said cases are dealt with in brief. a. In the case of The Church of Christ, etc. (supra), the suit was filed for specific performance of contract executed through power of attorney. Therefore, burden of proving the power of attorney has to be on the plaintiff. b. In the case of Anonda Chandra Saikia (supra), after discussing the provisions of section 91 and 92 of the Evidence Act, 1872 it was held that the party cannot be allowed to adduce evidence for setting up a case inconsistent with one alleged in the plaint. Rather, on the scope of section 100 CPC, the said citation is against the appellant because in this case it had been held that interference with the concurrent finding should only be in exceptional case where the Courts below failed to consider vital evidence or the Courts relied on inadmissible evidence or when there was perversity in the finding of facts or if the facts are based on no evidence. c. In the case of Sunamani Nath (supra), it was held that if it is found that the finding of Courts below stand vitiated on wrong test and on the basis of assumptions and conjectures, the High Court would have jurisdiction to decide the issue. This is in consonance with the provisions of section 103 CPC. c. In the case of Sunamani Nath (supra), it was held that if it is found that the finding of Courts below stand vitiated on wrong test and on the basis of assumptions and conjectures, the High Court would have jurisdiction to decide the issue. This is in consonance with the provisions of section 103 CPC. But this case is not the authority on the point that issue not framed and decided by the trial Court can be decided in an appeal under section 100 CPC. d. Similarly, the case of Hero Vinoth (supra) also is not an authority on the point that issue not framed and decided by the trial Court can be decided in an appeal under section 100 CPC. As indicated herein before, it was also held in the said case that a factual issue cannot be raised or considered for the first time in a second appeal. e. In the case of Dolly Khonglah (supra), this Court while exercising power of revision under section 115 CPC was of the opinion that the learned Courts below ought to have decided issue no.4 to the effect that whether the defendant no.2 was a tenant under defendant no.1 or under the plaintiff, etc. and then other issues ought to have been decided and the omission was held to be fatal, which is not the fact of this present case in hand. f. The case of Dwijendra Mohan Lahiri (supra), was cited to impress upon the Court that issues are framed for right decision of the case. However, the learned counsel for the appellant has failed to appreciate that the said observations were made to opine that a Court should decline to frame an issue as to maintainability of the suit in absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. It was observed that a mere vague recital in the written statement without anything more cannot be the basis of raising such an issue. Thus, the said ratio does not help the appellants in any manner because in their written statement, the appellants had merely made a general denial of executing special power of attorney without any further statement. As indicated herein before, the plea was not even proved. 17. Thus, the said ratio does not help the appellants in any manner because in their written statement, the appellants had merely made a general denial of executing special power of attorney without any further statement. As indicated herein before, the plea was not even proved. 17. Thus, the Court is constrained to hold that no substantial questions of law arise for decision in this case. The points agitated by the learned counsel for the appellants are squarely covered by concurrent finding of facts which warrants no interference in exercise of jurisdiction under section 100 CPC as the findings recorded by the learned Courts below are not found to be perverse, or that the findings have been arrived at by wrongly casting the burden of proof on a wrong party. This is not a case where any finding recorded by the learned Courts below is contrary to evidence on record or by ignoring material evidence on record. It is also not the case where the Courts below had arrived at a finding despite lack of admissible evidence. This is also not a case where the evidence as a whole, does not lead to preponderance of probability that the respondent had succeeded to show her right, title, interest and possession over the suit land. 18. Accordingly, this appeal fails and the same is dismissed without issuing notice on the respondent. The appellants are left to bear their own cost. 19. Let the decree of dismissal of the appeal be prepared. 20. The Registry shall notify the dismissal of this appeal to the Court of the learned Addl. District Judge (FTC) No.3, Kamrup (M), Guwahati in connection with T.A. No. 16/2016 disposed of on 14.11.2019.