JUDGMENT : Heard the parties. 2. This appeal has been filed by the appellants under Section 100 of the Code of Civil Procedure against the concurrent Judgment and decree dated 28.06.2007 passed by the 5th Additional District Judge (F.T.C.), Jamtara in Title Appeal No.12 of 2006/09 of 2005 whereby and whereunder, the learned first appellate court has dismissed the appeal and confirmed the judgment and decree passed by the Sub-Judge-III, Jamtara in Title (Partition) Suit No.20 of 1994 dated 12.01.2005 whereby and whereunder the learned trial court decreed the suit on contest with costs and held that the plaintiffs have jointly entitled to 1/3rd share in Scheduled A and 1/6th share in Scheduled B land and also ordered the pleader commissioner be appointed to carve out the shares and decree be prepared accordingly. 3. The brief facts of the case is that the appellant-plaintiffs and the respondents-defendants are the descendants of the common ancestor Makhan Gope who died leaving behind his three sons namely Kalipado, Pasupati and Dasrath. The appellant-plaintiffs are the descendants of the branch of Kalipado and the respondents-defendants are the descendants of the branch of Dasrath. It is the case of the appellant-plaintiffs that Pasupati predeceased Kalipado so the properties of Pasupati devolved equally to Kalipado and Dasrath. Hence, the appellant-plaintiffs are entitled to share of the Kalipado as well as half of the share of Pasupati whereas it is the case of the resepondents-defendants that Pasupati died after the death of Kalipado hence, Kalipado is not entitled to inherit the property of Pasupati and only the branch of Dasrath Ghosh can inherit the property of Pasupati. 4. The trial court keeping in view the oral evidence as well as the documentary evidence particularly the Ext. 4. The trial court keeping in view the oral evidence as well as the documentary evidence particularly the Ext. A/1 which is the voter list of the year 1983 in which the name of Pasupati Ghosh and Dasrath Ghosh was appearing but the name of Kalipado Ghosh was not appearing came to the conclusion that Pasupati died after Kalipado and taking into consideration that in the Schedule under Section 8 of the Hindu Succession Act, 1956 as ‘brother’ comes under Class-II (II) and ‘brother’s son’ come under Class-II (IV), so the learned trial court came to the conclusion that Dasrath inherited the properties of Pasupati but Kalipado did not inherit the properties of Pasupati and decreed the suit by giving 1/3rd share of Schedule A land which was exclusive property of Makhan Gope and 1/6th of Schedule B land which was a joint property of Makhan Gope and Bhikhu Gope. 5. Being aggrieved by the said judgment and decree passed by the learned trial court, the appellant-plaintiffs filed Title Appeal No.09 of 2005 which was later on numbered as 12 of 2006 by District Judge, Jamtara which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 6. Learned first appellate court framed the following two point of determination in the appeal :- (i) Whether without framing an issue as to who died first Pasupati or Kalipado, finding given on this point by the learned court below is sustainable or not, and whether it has caused any prejudice to appellants? (ii) Whether the finding that Kalipado predeceased Pasupati, given by the learned court below is correct or not? 7. Learned first appellate court made independent appreciation of evidence in the record and considered the settled principle of law that when prejudice is not caused to the parties who were knowing the issue in question full well and have led ample evidence in respect of the issue in question; by deciding the issue which was not specifically framed, it would not be proper for the appellate court to set aside the decree and also considered that though no specific issue was framed on this point but in paragraph nos.8 and 9 of the judgment of the trial court, the learned trial court has discussed the rival contention in the matter and has given a finding. The first appellate court also came to a conclusion that no prejudice has been caused to the parties by non-framing of specific issue and thus answered the first point of determination. In respect of the second point of determination, the learned first appellate court considered that the appellant-plaintiffs has nowhere stated in his evidence that prior to death of Dasrath, the appellant-plaintiffs and Dasrath were possessing half of the suit land each as pleaded in the plaint and also considered the principle of law that though Voter list is not a conclusive proof of a fact but it can be used for the purpose of corroboration and also observed that after scrutiny of the evidence and material on record, the version of the appellant-plaintiffs does not inspire confidence rather the defence version appears to be more probable that Kalipado predeceased Pasupati and did not interfere with the finding of the trial court that Kalipado predeceased Pasupati and dismissed the appeal. 8. Mr. Durga Charan Mishra, learned counsel for the appellants relying on the judgment of Hon’ble Supreme Court of India in the case of Commissioner of Wealth Tax, W. Bengal vs. M/s. Bishwanath Chatterjee & Ors. reported in (1976) 3 SCC 385 wherein the Hon’ble Supreme Court of India in paragraph no.2 and 7 observed that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family and remain as co-owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family and the heritage does not therefore become the joint property of the heirs, or the joint family property, on the demise of the last owner, but becomes the fractional property of the heirs in well- defined shares but fairly submitted that succession of Daya Bhaga School of Hindu Law is also done as per the schedule of the Hindu Succession Act in terms of the Section 8 of the said Act. Hence, it is submitted that the impugned judgment and decree be set aside. 9. Hence, it is submitted that the impugned judgment and decree be set aside. 9. After going through the materials in the record, this Court finds that both the courts below have discussed the evidence regarding the issue as to whether Pasupati predeceased Kalipado or the other way round in detail and after considering the evidence in the record has arrived at the conclusion that Kalipado predeceased Pasupati. Hence, rightly the plaintiffs have been given 1/3rd share from the Schedule A which is exclusive property of Makhan Gope and 1/6th of Schedule B land which was a joint property of Makhan Gope and Bhikhu Gope. 10. It is needless to mention that it is a settled principle of law that the scope of Section 100 of Code of Civil Procedure is limited. The general rule is that concurrent finding of facts ought not to be interfered with of course it is not an absolute rule. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Kashmir Singh vs. Harnam Singh & Anr. reported in AIR 2008 SC 1749 , paragraph nos.10, 15 and 17 of which reads as under :- “10. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 15. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 15. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a 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. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [ (2001) 3 SCC 179 ]. 17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 11. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 11. After going through the evidence in the record, this Court finds that (i) the courts below have not ignored any material evidence nor acted on no evidence; (ii) the courts have not drawn any wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have not wrongly cast the burden of proof. 12. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. Accordingly, this appeal being without any merit is dismissed but in the circumstances without any costs. 13. Let a copy of this order Judgment be sent to both the learned courts below forthwith.