JUDGEMENT & ORDER : ROBIN PHUKAN, J. Heard Mr. B.D. Deka, learned counsel for the appellants and Mr. D.Mozumdar, learned Senior Counsel, assisted by Mr. D. Choudhury, learned counsel for the respondents. 2. In this appeal, under Section 100 of the C.P.C., the appellants have put to challenge the correctness or otherwise of the Judgment and Decree, dated 12.03.2019, passed by the learned Additional District Judge No. 2, Nagaon (‘first appellate court’, for short), in Title Appeal No. 11/2016. 3. It is to be noted here that vide impugned Judgment and Decree dated 12.03.2019, the learned first appellate court had affirmed the Judgment and Decree, dated 18.02.2016, passed by the learned Civil Judge, Nagaon (‘trial court’, for short), in Title Suit No. 49/2005, where by the suit filed by the appellants herein for declaration of right, title and interest over 3/6th share in the suit land and the houses standing over there as described in Schedule A and also 3/6th share of rent of the houses receivable from the tenants and a preliminary decree for directing the principal defendant Nos. 1 – 10 to effect partition of the appellants share of land and houses and delivery of possession of the same to the appellants herein. Background Facts:- 4. The background facts, leading to filing of the present appeal, are adumbrated herein below:- “One Abdul Razak and Abdul Sattar were the owner of a plot of land, covered by PP No. 65, and another plot of land, covered by PP No. 72, belongs to five persons, namely, Abdul Razak, Abdul Sattar, Israfil, Joinal Abedin and Ramjan Bibi, as per the settlement held in the year 1957 - 58. About 40 years back, on 23.10.1976, the names of Kumud Bandhu Danda and his wife Labanya Prova Danda, since deceased, came to be recorded in the aforementioned two pattas, by right of exchange, in place of previous pattadars mentioned herein above, and said Kumud Bandhu and Labanya Prova used to possess said pattas land in joint right, title and interest. After the exchange, the previous pattadars, namely, Abdul Razak and four others left for East Pakistan, now Bangladesh, and they suffered demise there. Thereafter, Kumud Bandhu and Labanya Prova raised various constructions over the said land and let out the same to different persons, including Central Bank of India and also ‘BATA’ India Limited. After the exchange, the previous pattadars, namely, Abdul Razak and four others left for East Pakistan, now Bangladesh, and they suffered demise there. Thereafter, Kumud Bandhu and Labanya Prova raised various constructions over the said land and let out the same to different persons, including Central Bank of India and also ‘BATA’ India Limited. Thereafter, Kumud Bandhu died in or about 1976, leaving his wife Labanya and three sons viz Keteki Ranjan, Mrinal Kanti and Mridul Kanti Danda. Thereafter, Ketaki Ranjan died in the year 2002, leaving behind Smti Mira Danda, Sri Ashim Danda and Sri Chitrangada Danda as his heirs. And Mrinal Kanti died leaving behind Smti Maya Danda and Smti Malashree Basu as his heirs. And Mridul Kanti left Smti Mandira Danda, Smti Mrinmoyee Talukdar and Smti Maitroyee Das as his heirs. And Kumud Bandhu also left three daughters namely, Smti Bela Biswas, Smti Ila Danda and Smti Shila Choudhury as his heirs. As such, on the death of Kumud Bandhu his properties including the suit properties devolved on his said heirs in ejmali and in equal shares. Thereafter, Labanya Probha also died in the year 1978, leaving behind the aforesaid three sons and three daughters as her heirs. As such, Ketaki Ranjan, Bela Biswas and Ila Danda th jointly became owners and possessors of 3/6 shares in the suit land and the houses standing thereon by right of inheritance. Late Kumud Bandhu Danda, Labnya Prova Danda, Smti Maya Danda, Smti Malashree Basu, Smti Mandira Danda, Smti Mrinmoyee Talukdar, Smti Maitroyee Das and Smti Shila Choudhury are actually permanent residents of Kolkata. And as the suit properties are situated in Assam, it becomes difficult for Kumud Bandu, Labanya Prova and after their death for the legal heirs to look after and manage the suit properties situated at Nagaon. After the death of Kumud Bandhu and Labanya Prova, their other sons and daughters asked Mridul Kanti Danda to take necessary steps for mutating the name of the heirs of Kumud Bandhu and Labanya Prova with respect to suit patta land. Mridul Kanti, in his turn, had assured the other heirs of Kumud Bandhu that he will do the mutation accordingly. But, for the reasons best known to him, he mutated his name only with respect to entire suit patta land in exclusion to all other heirs by right of inheritance, in place of Kumud Bandhu and Labanya Prova. Mridul Kanti, in his turn, had assured the other heirs of Kumud Bandhu that he will do the mutation accordingly. But, for the reasons best known to him, he mutated his name only with respect to entire suit patta land in exclusion to all other heirs by right of inheritance, in place of Kumud Bandhu and Labanya Prova. And this fraudulent act of Mridul Kanti came to the knowledge of the heirs only after obtaining copies of jamabandi of the suit pattas. After the death of Mridul Kanti Danda, his wife Smti. Mandira Danda got only her name mutated with respect to entire suit patta land, in place of Mridul Kanti Danda, by right of inheritance. The said mutation, in the name Mridul Kanti Danda and after his death, in the name of Mandira Danda, was beyond the knowledge of Bela Biswas, Ila Dana, Mira Danda, Ashim Danda and Chitrangada Danda and other legal heirs of Kumud Bandhu and Labanya Prova. Such fraudulent and collusive mutation confers no title, either on Mridul Kanti Danda or after his death on Mandira Danda, with respect to the shares of other heirs of Kumud Bandhu and Labanya Prova. Thereafter, on the strength of said mutation, Mandira Danda executed a sale deed No. 1753, on 29.10.2004, in favour of one Sri Paritosh Saha and his sons, with respect to 15 lechas of land, as described in Schedule ‘B’ of the plaint and the purchasers are possessing the said land with the constructions, standing thereon. Mridul Kanti Danda had only 1/6th share out of the suit properties. So after his death, his heirs had 1/3rd share out of the 1/6th share of late Mridul Kanti Danda. As such, his rd wife Mandira Danda had only 1/3rd share out of Mridul Kanti's share, but she had sold more than her entitlement and they are trying to alienate other suit property also. And being aware of the same, Ashim Danda came to Nagaon on 10.02.2005, to take assessment of the paternal properties there and only then he came to know about the fraudulent mutation in the name of Mridul Kanti and after his death in the name of Mandira Danda and also about the sale made by her to Paritosh Saha, Dhananjay Saha, Bijay Krishna Saha and Ajay Saha. Then, Ashim Danda obtained copies of jamabandi of suit pattas and the copies of sale deed and thereafter, came to know about the whole state of affairs. Thereafter, along with Shila Choudhury, the plaintiffs jointly filed applications for mutating their names in the suit patta, vide M.C. Case No. 663/05 and 947/05, by right of inheritance. But, the mutation applications were dismissed by Circle Officer on wrong approach of law and facts and against the said order two mutation appeals, vide Mutation Appeal No. 14.05.2006 and 15.05.2006, were filed. And the rents of the houses, constructed over the suit property were being collected by Mridul Kanti Danda for himself and also on behalf of other co-landlord/land lady, including the plaintiffs and after his death, his widow had been collecting the rents in similar way and she has not been paying any share to the other landlord/landlady. For which one pleader's notice was issued on 22.03.2005, to the tenants. But, the same failed to evoke any response, except the BATA India Limited, who agreed to pay plaintiff's share of rent directly to them. And Paritosh Saha is also occupying a shop house over the suit land as tenant and the said house is the part of RCC building mentioned in the plaint. Thereafter, he gave efforts for amicable partition of the suit property among the co-sharers and the same also failed to yield any result and for which, the appellants herein filed a tile suit, being T.S. No. 49/2005, The respondents had contested the suit by filing their separate written statements denying the statements and averments made in the plaint. It is stated that Kumud Bandhu Danda and Labanya Prova Danda acquired the suit land by way of exchange with their property in erstwhile East Bengal (now Bangladesh) but, they never used to live at Nagaon and so Mridul Kanti Danda only came to Nagaon and constructed one double storied RCC building demolishing the old houses thereon and thereafter, in a portion of said house and carried on shoe business, under the name and style of M K Danda & Co. It is also stated that Mridul Kanti Danda put some tenants in other rooms of the said house and collected rent and after his death, Mandira Danda used to collect rents from the tenants. It is also stated that Mridul Kanti Danda put some tenants in other rooms of the said house and collected rent and after his death, Mandira Danda used to collect rents from the tenants. And after the death of Kumud Badhu and Labanya Prova Danda, their other heirs never claimed any right, title and interest over the suit property and they also claimed right over the suit land by way of adverse possession. It is also stated that with a view to compel the defendant No. 1 to withdraw her share of the properties at Calcutta and also to evict her from there, they are claiming their shares in the suit properties. The defendant No. 3, who is the daughter of defendant No 1, had stated in her written statement that there was a contract with Kumud Bandhu Danda and Abdul Razak and other owners to exchange the properties of Kumud Badhu at erstwhile East Pakistan with the suit properties of Abdul Razak and others. But, the exchange deed could not be executed and so suit property fell to Abdul Razak and others. Abdul Razak was deported to East Pakistan and suit property was entrusted to one Nurul Hussain, a neighborly resident and somehow Kumud Bandhu Danda and his wife got the suit land mutated in their names without any right. And Mridul Kanti Danda met Nurul Hussain and agreed to pay the price to the owner, if possession is delivered to him. Thereafter, Nurul Hussain delivered possession to Mridul Kanti and he started a business over there. It is also stated that there was some dilapidated houses over the suit land and having demolished those houses, Mridul Kanti had constructed RCC building and also reconstructed some Assam type houses and rented out the 1st floor of the building to Central Bank of India and other rooms to different tenants, including Bata India Ltd. and used to collect rents from them. And Mridul Kanti Danda was owner in possession of the suit properties and after his death, her mother is managing the property with the help of employees. The stand of the defendant Nos. 7, 8 & 9 is that they claimed 15 lechas of land out of the suit land by right of purchase from defendant No.1. And Mridul Kanti Danda was owner in possession of the suit properties and after his death, her mother is managing the property with the help of employees. The stand of the defendant Nos. 7, 8 & 9 is that they claimed 15 lechas of land out of the suit land by right of purchase from defendant No.1. The defendant No. 17 to 19 and 21 to 23 also filed written statement, wherein their stand is that they made tenancy agreement with defendant No. 1 and running their shops in the suit premises under defendant No. 1. The Central Bank of India as defendant No. 24 & 25 filed written statement. Their stand is that they are the tenant under the plaintiffs and their other family members including the defendants and during the lifetime of Mridul Kanta Danda, he used to collect the rent, but after his death, as there arose family disputes among the heirs, they could not pay the rent, so they had to keep the rent in suspense account with a view to pay the same to the persons who would be legally entitled to it. The suit proceeded ex-parte against defendant Nos. 4, 5 & 6, 11 –16, 20, 26 & 27 as they failed to contest the same. Then, upon the pleadings of the parties, the learned court had framed following issues:- 1. Whether cause of action arose for the suit? 2. Whether suit is maintainable in its present form? 3. Whether plaintiffs have right, title, interest over 3/6th share in the suit property? 4. Whether plaintiff is entitled for partition as prayed for? 5. Whether plaintiff is entitled for decree as prayed for? ADDITIONAL ISSUES 6. Whether the suit is barred by law of limitation? 7. Whether the suit is barred by adverse possession? 8. Whether the suit is barred by section 154 of the Assam Land Revenue Regulation Act, 1886? Thereafter, hearing both the parties, the learned trial court had dismissed the suit on contest, without cost. 5. Being aggrieved, the appellants had preferred one regular first appeal, before the Court of learned Addl. District Judge No. 2, Nagaon (hereinafter the ‘first appellate court,) being Title Appeal No. 11/2016. Thereafter, hearing both the parties, the learned trial court had dismissed the suit on contest, without cost. 5. Being aggrieved, the appellants had preferred one regular first appeal, before the Court of learned Addl. District Judge No. 2, Nagaon (hereinafter the ‘first appellate court,) being Title Appeal No. 11/2016. And after hearing learned counsel for both the parties, vide Judgment and Decree dated 12.03.2019, the learned first appellate court had affirmed the Judgment and Decree dated 18.02.2016, passed by the learned Civil Judge, Nagaon (‘trial court’, for short), in Title Suit No. 49/2005. Substantial Questions of Law:- 6. Having been aggrieved and dissatisfied with the judgment and decree of the learned trial court as well as of the learned first appellate court, the appellants approached this court by filing the present appeal, which was admitted on the following substantial questions of law:- “ (i) Whether the findings of the trial court as well as the first appellate court holding that the suit property was not the ancestral property was perverse for not taking into consideration of the Exhibit Nos. 1 and 2 and also the pleadings of the parties.” Submissions:- 7. Mr. Deka, learned counsel appearing for the appellants submits that the learned first appellate court in the impugned judgment and decree has not made any issues wise discussion and also failed to take into account the pleadings of the parties, especially the written statement filed by the defendant No. 1 and her daughter Moitrayee Das, the defendant No. 3. Mr. Deka referring to the paragraph No. 35 of the written statement filed by the defendant No. 1 submits that in the said para it is stated that Kumud Bandhu Danda, since deceased, her father-in-law and Smti. Labannya Prabha Danda, since deceased acquired the suit land by way of exchange of their property in East Bengal (Bangladesh). But, both of them never use to live at Nagaon, so Mridul Kanti Danda, her husband, came to Nagaon and by demolishing the old house constructed one double storied RCC building and thereafter, carried on shoe business, in the name and style of M/S M.K. Danda and Co. 7.1 . Mr. But, both of them never use to live at Nagaon, so Mridul Kanti Danda, her husband, came to Nagaon and by demolishing the old house constructed one double storied RCC building and thereafter, carried on shoe business, in the name and style of M/S M.K. Danda and Co. 7.1 . Mr. Deka further submits that the said business was completely owned by Mridul Kanti Danda, her husband and he had also put some other tenants in the some rooms in the said house and after his death the rents are being collected by the defendant No. 1, without sharing it to anybody. And Kumud Bandhu Danda and Labanya Prabha Danda during their life time have not made any objection in occupying the suit land and deriving the benefits from the same by Mridul Kanti Danda. After the death of Kumud Bandhu and Labanya Prova, their heirs knowing very well that the suit property has been occupying by Mridul Kandi to their hostile, at least since the time of their parents they never claim any right over this property. And the said averment, made in the written statement by the defendant No. 1, is ignored by the learned first appellate court. Mr. Deka further submits that the defendant No. 1 had admitted exchange of the suit property with one Abdul Razak and in view of proviso to Section 58 of the Evidence Act, facts admitted need not be proved. 7.2. Mr. Deka also submits that the defendant No. 3, the daughter of defendant No. 1, had denied the same in her written statement, but, she did not enter into the witness box and as such, the written statement filed by her could not be taken into account. Mr. Deka further submits that the averments made by the defendant No. 3 in paragraph No. 37 that though Kumud Bandhu Danda and Labannya Prova Danda got their names mutated by right of exchange, but, due to the incompletion of exchange, as alleged by the original owner, they failed to get possession, while Mridul Kanti came to know about the fact he came to Nagaon and took help of one Nurul Hussain, the boundary man, who was a most influential person at that time and obtained the possession, is not at all believable. Mr. Deka further submits that there is no dispute regarding the Exhibit Nos. Mr. Deka further submits that there is no dispute regarding the Exhibit Nos. 1 & 2, the certified copy of Jamabandi of suit land covering PP No. 65 and certified copy of Jamabandi of suit land covering PP No. 72 and as such, a presumption is available in favour of the said documents. 7.3. But, Mr. Deka submits that the learned trial court as well as the learned first appellate court both had failed to invoke the same. Referring to a decision of a co-ordinate bench of this court in Pyara Singh and Others vs. Siba Prasad Dutta and Others , reported in (2024) 4 GLT 1213, Mr. Deka submits that any order or entries made by revenue authorities, which attains finality has to be respected and given effect to. Referring to another decision of this court in Amiya Bala Dutta vs. Mukut Adhikari , reported in (1999) 1 GLR 229 ; Mr. Deka also submits that mutation entries, though it will not create any right, cannot be brushed aside and must receive due consideration at the hand of the Court. Referring to another decision in Chhote Khan and Others vs. Mal Khan and Others , reported in (1954) 1 SCC 771, Mr. Deka submits that entries made in record of rights shall be presumed to be true and until the contrary is proved. 7.4. Mr. Deka further submits that alienation of some portion of suit premises to respondents No. 6, 8 and 9, by the respondent No.1 was not challenged and the same need not be challenged always and if the respondent No.1 had no title over the suit premises she could not have conferred a better title upon respondent No. 6, 8 and 9. In support of his submission, he has referred to decision of Hon’ble Supreme Court in the case of Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese , reported in (2022) 7 SCC 90 . Mr. Deka has referred another decision of this court in Sanjay Kumar Barua vs. Pradip Kumar Goswami , reported in (2016) 5 GLR 408 ; in support of his submissions. 7.5. As such, the impugned judgment and decree, so passed by the learned trial court as well as the learned first appellate court are perverse and on such count, the same warrants interference of this court and therefore, it is contended to allow the appeal. 8. On the other hand, Mr. 7.5. As such, the impugned judgment and decree, so passed by the learned trial court as well as the learned first appellate court are perverse and on such count, the same warrants interference of this court and therefore, it is contended to allow the appeal. 8. On the other hand, Mr. Mozumdar, learned senior counsel appearing for the respondents, has supported the impugned judgments and decrees, so passed by the learned trial court as well as the learned first appellate court. Mr. Mozumdar has pointed out that the evidence, so brought on record, including the Exhibit Nos. 1 & 2 are insufficient to show that the right, title and interest of the appellants herein have been mutated and as they have failed to establish their right, title and interest over the suit property and as such, the learned trial court as well as the learned first appellate court had rightly refused to grant the decree of possession as well as the partition of the suit property. Referring to Exhibit - E, the power of attorney and Notary Certificate, Mr. Mozumdar submits that the same was not challenged by the appellants herein. Mr. Mozumdar further submits that though there was a talk for exchange of the property of the predecessor in interest of the appellants as well as the respondents herein in erstwhile East Pakistan, now Bangladesh, yet, the same could not be effected by Kumud Bandhu Danda and Labannya Prova Danda. 8.1. Mr. Mozumdar also submits that even there is no material to declare the title in favour of the respondents herein also in the event of a counter-claim being filed by them before the learned trial court. Referring to a decision of Hon’ble Supreme Court in Balraj Taneja and Another vs. Sunil Madan and Another , reported in (1999) 8 SCC 396 , Mr. Mazumdar submits that though Section 58 of the Evidence Act provides that admitted fact need not be proved, yet proviso to Section 58 of the Evidence Act gives discretion to the court that the court may require the fact admitted to be proved otherwise than by such admission and in the present case both the court below had exercised their discretion. 8.2. Referring to another decision of Hon’ble Supreme Court in Thulasidhara and Another vs. Narayanappa and Others , reported in (2019) 6 SCC 409 , Mr. 8.2. Referring to another decision of Hon’ble Supreme Court in Thulasidhara and Another vs. Narayanappa and Others , reported in (2019) 6 SCC 409 , Mr. Mazumdar submits that there is a concurrent finding of fact by both the learned courts below and interference with the concurrent finding of fact by the High Court is permissible only when material or relevant evidence has not been considered or when finding arrived at by relying upon inadmissible evidence by learned first appellate court, and in the case in hand the appellant could not show from record that the learned courts below had not considered any material or relevant evidence and though the substantiation question of law has been framed for non consideration of Exhibit-1 and 2 yet, the same were considered by both the courts below and even after consideration of the same the suit of the appellants cannot be decreed. The learned trial court as well as the learned first appellate court, according to Mr. Mazumdar, had rightly dismissed the suit and no substantial question of law is involved herein and therefore, it is contended to dismiss this appeal. 8.3. Mr. Mozumdar has referred to a decision of Hon’ble Supreme Court in P. Kishore Kumar vs. Vittal K. Patkar , in Civil Appeal No. 7210 of 2011; to contend that the claim for establishing right through the record of right, by preponderance of probability, is not sustainable as the appellant herein failed to produce a single document of title in respect of suit property. Mr. Mazumdar also referred the following case law, i.e. Jagdish Prasad Patel (dead) Through Legal Representatives and Another vs. Shivnath and Another , reported in (2019) 6 SCC 82 ; in support of his submission. Discussion and Finding:- 9. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal as well as the grounds mentioned therein and also perused the impugned Judgment and Decree dated 12.03.2019, passed by the learned first appellate court, in Title Appeal No. 11/2016 and also the Judgment and Decree dated 18.02.2016, passed by the learned trial court, in Title Suit No. 49/2005. 10. 10. It appears that the suit was instituted by the appellants herein for th declaring right, title and interest over 3/6 share in the suit land, measuring 2 Kathas 5 Lechas covered by Dag No. 1569 and 1 Katha 15 Lechas covered by Dag No. 1614 in total 4 Kathas both of P.P. No. 65 and land measuring 1 Katha covered by Dag No. 1570 and 1 Katha 13 Lechas covered by Dag No. 1613 in total 2 Kathas 13 Lechas both of P.P. No. 72 in total 1 Bigha 1 Katha 13 Lechas in the district of Nagaon, under Town Mouza and the houses standing over there as described in Schedule ‘A’ and also for preliminary decree to effect partition of the plaintiffs share of land and houses and that being so, the plaintiffs have to establish their right, title and interest over the same. 11. A careful perusal of the impugned judgment and decree of the learned trial court indicates that the learned trial court had, in issue Nos. 3 & 4, dealt with the aforesaid issues, which are read as under:- “ Issue No. – 3, Whether plaintiffs have right, title, interest over 3/6th share in the suit property? Issue No. – 4, Whether plaintiff is entitled for partition as prayed for?” 11.1. Thereafter, the learned trial court has discussed the evidence of plaintiffs, namely, Ashim Danda (PW1); Subrata Chakraborty (PW2); and Pranita Goswami (PW3) and also considered Exhibit Nos. 1, 2, 3 & 3a, the certified copies of Jamabandi of P.P. No. 65 and 72 and old P.P. No. 69 and 68 of 1957 – 58 settlement. The learned trial court also held that perusal of Exhibit- 1 and 2 indicates that the name of Mridul Kanti Danda was muted on 24.06.1994, by right of inheritance after the death of Kumud Bandhu Danda and Labanya Prava and on the death of Mridul Kanti Danda, the name of his wife Mandira Danda (Defendant No.1) has been mutated on 02.04.2004. The learned trial court also discussed the evidence of the plaintiffs/appellants and also considered the definition of Exchange which has been defined in Section 118 of the Transfer of Property Act and thereafter arrived at the finding that transfer of immoveable property can be effected only by registered document and in the case in hand, no deed of exchange was produced though averment was made that the predecessor in interest of the plaintiffs/appellants got the suit land by way of exchange with the pattadars’ of said land, namely, Abdul Rezak, Abdul Sattar, Israfil, Joynal Abedin and Ramjan Bibi. 11.2. Further it appears that thereafter, the learned trial court had considered the evidence of the defendants’ witnesses and the written statements submitted by them. And thereafter, considering the evidence and pleadings of the parties and the exhibits, the learned trial court had arrived at a conclusion that the plaintiffs/appellants herein had failed to prove the exchange of the suit land and when the ownership of Kumud Bandhu and Labanya Prava over the suit property, by right of exchange is not proved, the plaintiff cannot claim any right over the property and they also failed to prove that the houses standing over the suit land were constructed by Kumud Bandhu Danda and Labanya Prava by right of exchange. Thereafter, the learned trial court had also held that from the oral and documentary evidence, it has come out clearly that the plaintiffs have no right, title and interest over 3/6th share in the suit property, so they are not entitled for the partition as prayed for and decided both the issues in negative. 12. The learned first appellate court also in the impugned judgment and decree had held that the appellants have failed to produce the exchange deed by which they claimed the right over the suit land. 12. The learned first appellate court also in the impugned judgment and decree had held that the appellants have failed to produce the exchange deed by which they claimed the right over the suit land. They have only relied upon the jamabandi by which the appellants want to prove that the suit land was acquired by Kumud Bandhu Danda and also held that it is a settled principle of law that entries in the jamabandi indicate only the possession and plaintiffs cannot get a decree merely on the entry on the jamabandi of the settlement year and the same does not confer any title upon the parties and in holding so, the learned first appellate court had relied upon a decision of this court in the case of AIR 1965 Gau 9 , and 2000 (3) GLT 453. 12.1. It also appears that the learned first appellate court had also discussed the Exhibit Nos. 1 & 2, the jamabandi of suit Patta No.65 and 72 showing the names of Kumud Bandhu Danda, Labanya Prava Danda, Mridul Kanti Danda and Mandira Danda being mutated in place of Abdul Razak and Abdul Sattar, while Exhibit - Ka is the sale deed No. 1753/08 by which 15 lechas of land were sold by Mandira Danda to Sri Paritosh Saha, Sri Dhananjoy Saha, Bijoy Krishna Saha and Ajay Saha, who are the defendant Nos. 7 – 10, respectively. 12.2. However, it is a fact that the learned first appellate court had not formulated any point for determination as required under Order 41 Rule 31 of the CPC. Mr. Deka, learned counsel for the appellants had rightly pointed this out. But, it appears that though no point for determination was formulated by the learned first appellate court, yet, it had discussed all the relevant issues in the impugned judgment. And in view of the decision of Hon’ble Supreme Court in the case of Mrugendra Indravadan Mehta and Others v. Ahmedabad Municipal Corporation, reported in (2024) 6 S.C.R. 594 , non-formulation of the point for determination itself would not be fatal if the learned appellate court discussed the matter covering the issues. And in view of the decision of Hon’ble Supreme Court in the case of Mrugendra Indravadan Mehta and Others v. Ahmedabad Municipal Corporation, reported in (2024) 6 S.C.R. 594 , non-formulation of the point for determination itself would not be fatal if the learned appellate court discussed the matter covering the issues. It is to be noted here that in the aforementioned case, Hon’ble Supreme Court, referring to its earlier decision in G. Amalorpavam and others vs. R.C. Diocese of Madurai and others, reported in (2006) 3 SCC 224 , held as under: “ Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient.” 12.3. From the judgment and decree of the learned first appellate court, it appears that it had discussed the evidence covering the issues, from paragraph Nos. 13 – 25. In the aforesaid paragraphs, it had been observed that the suit land, covered by P.P No. 65 belonged to Abdul Razak, Abdul Sattar, Israfil, Joynal Abedin and Ramjan Bibi and the predecessor-in-interest of the plaintiffs and defendant Nos. 1 – 6, namely, Kumud Bandhu Danda and Labanya Prava got the said land by exchange with the aforesaid pattadars. Thereafter, the names of Kumud Bandhu Danda and Labanya Prava were mutated in both the pattas on 02.03.1976, in place of the said pattadars. It had also been held that after acquiring the land, Kumud Bandhu Danda and Labanya Prava raised two storied R.C.C building and other houses over the suit land and those were let out to different tenants including Central Bank of India and Bata India Limited. It also appears that the PW2, Subrata Chakraborty is the Attorney of the plaintiffs/appellants herein and Exhibit Nos. 4, 5 & 6 are the Power of Attorney and he was appointed by Ashim Danda (PW1) and he exhibited the certified copies of the Jamabandi of current P.P. No. 65 and 72 and old P.P No. 69 and 68 of 1957 – 58 settlement [Exhibits Nos. 1, 2, 3 and 3 (a)]. 12.4. Further, it had been held that the Exhibit Nos. 1, 2, 3 and 3 (a)]. 12.4. Further, it had been held that the Exhibit Nos. 1 & 2 indicates that the names of Kumud Bandhu Danda and Labanya Prava Danda have been mutated by right of exchange in place of the original pattadars in the year 1976 and after the death of Kumud Bandhu and Labanya Prava, the name of Mridul Kanti Danda has been mutated on 24.06.1994, by right of inheritance and after the death of Mridul Kanti Danda, the name of his wife, Mandira Danda, who is the defendant No. 1 in the title suit, has been mutated on 02.04.2004, by right of inheritance. Thereafter, it had been held that Kumud Bandhu and Labanya Prova had left two other sons, namely, Keteki Ranjan Danda, the predecessor- in-interest and Mrinal Kanti Danda, the predecessor-in-interest and three daughters, namely, Smti Bela Biswas, Ila Danda and Shila Choudhury. As such, on the death of Kumud Bandhu and Labanya Prova, these heirs are also the inheritors of their properties and Mridul Kanti Danda by concealing the names of the other heirs got his name mutated in the suit patta. And on his death, his wife-Mandira Danda got her name mutated in the suit pattas. Thereafter, Shila Choudhury, the defendant No. 6 filed mutation application, which was dismissed and the Mutation Appeal has been preferred which are marked as Exhibit Nos. 9 – 11 and out of the six heirs, the plaintiff Nos. 1 and 2, being the daughters and plaintiff Nos. 3 – 5, being the children of another deceased son Kateki Ranjan Danda are jointly entitled to 3/6th share of the suit properties left by their predecessors. 12.5. Thereafter, it had been held that the claim of the plaintiffs that their predecessors became the owners of the property by way of exchange and this exchange of immovable property can be done by registered document only and until and unless the parties have delivered possession of their respective shares to the other parties, the exchange cannot be completed and no Deed of Exchange was produced by the plaintiffs/appellants before the learned trial court and the plaintiffs also failed to state that which land was delivered to Abdul Razak and Abdul Sattar in exchange of suit land. Mere by saying that exchange took place is not sufficient and in absence of the Exchange Deed, the actual land acquired by Kumud Bandhu Danda and Labanya Danda and its boundaries cannot be determined and it cannot be determined as to whether there was a house over the said suit land in absence of the exchange deed. 12.6. Then it had been held that the appellants had relied upon the copy of the jamabandi (Exhibit No. 1) to prove that his grandfather has got property at Nagaon, which indicates the name of Mridul Kanti Danda there and after his death, the name of Mandira Danda is reflected there and therefore, the learned trial court had held that there is no evidence to suggest that the predecessor in interest of the plaintiffs/appellants got the land by way of exchange as per law and on such count, there arises no question to declare right, title and interest over the suit property and as such, they are also not entitled to have partition of the suit property, without having valid title over the suit property and it is the burden of the plaintiffs/appellants to prove his case. And thereafter, the learned first appellate court had dismissed the appeal. 13. Thus, having carefully gone through the impugned judgment and decrees, so passed by the learned trial court as well as by the first appellate court, and also in the light of facts and relevant provisions of law as well as in the light of the arguments advanced by them and further in the light of the propositions of law laid down in decisions, so referred by them in support of their submissions, with the aid of all circumspection at our command, we find that both the courts below had considered the pleadings of the parties as well as the evidence adduced and the documents exhibited by both the parties. Both the courts below also considered the Exhibit 1 and 2, which are the certified copy of jamabandi of suit patta No. 65 as well as 72. And having taken into account the same along with other materials arrived at a concurrent finding that the plaintiffs/appellants had failed to establish their right, title and interest over the suit land. By a reasoned judgment the learned trial court had dismissed suit and the learned first appellate court also by a reasoned judgment had upheld the same. And having taken into account the same along with other materials arrived at a concurrent finding that the plaintiffs/appellants had failed to establish their right, title and interest over the suit land. By a reasoned judgment the learned trial court had dismissed suit and the learned first appellate court also by a reasoned judgment had upheld the same. 14. There appears to no substantial question of law involved in this second appeal. There is concurrent finding of fact by both the learned courts below and sitting in second appeal this court cannot interfere with the same. Mr. Mazumdar, the learned counsel for the respondent has rightly pointed out that there is a concurrent finding of fact by both the learned courts below and interference with the concurrent finding of fact by the High Court is permissible only when material or relevant evidence has not been considered or when finding arrived at by relying upon inadmissible evidence by learned first appellate court. As in the case in hand, all aspect had been dealt with by the learned courts below, Mr. Mazumdar submits, no interference of the same is warranted. The decision, so referred by Mr. Mazumdar, the learned counsel for the respondents in Thulasidhara and Others (Supra) also supported his submission. 14.1. This proposition of law is also well settled in the case of Commr., Hindu Religious & Charitable Endowments v. P. Shanmugama, reported in (2005) 9 SCC 232 , where it was held that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. Then in State of Kerala v. Mohd. Kunhi, reported in (2005) 10 SCC 139 , it had reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure. Thereafter, in Madhavan Nair v. Bhaskar Pillai, reported in (2005) 10 SCC 553 , this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. It was also observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. It was also observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. Again, in Harjeet Singh v. Amrik Singh, reported in (2005) 12 SCC 270 , Hon’ble Supreme Court, with anguish had mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In the said case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 CPC. Then setting aside the judgment of the High Court, it had been observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below. 15. I have considered the submissions of learned counsel for the parties and in the light of the materials placed before the court, I find substance in the submission of Mr. Mazumdar, learned senior counsel appearing for the respondents, who, with all fairness, submitted that the learned trial court as well as the learned first appellate court had rightly dismissed the suit and even if the respondents would have filed the counter-claim then also, it would have been difficult for the learned trial court as well as the learned first appellate court to grant a decree, declaring their right, title and interest in favour of them, as the exchange has not been proved. 16. Referring to the evidence of DWs, Mr. Mazumdar has also pointed out that the exchange could not be completed and Abdul Razak and Abdul Sattar had already left for erstwhile East-Pakistan and the predecessor in interest of the respondents obtained possession of the land from one Nurul Hussain, the local man and thereafter, got their names mutated. 17. It is well settled that in a suit for declaration of title over immovable property, the burden is always upon the plaintiffs. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Jagdish Prasad Patel (dead) Through Legal Representatives and Another, (Supra) . But, the plaintiffs/appellants herein this case, had failed to establish the same. 18. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Jagdish Prasad Patel (dead) Through Legal Representatives and Another, (Supra) . But, the plaintiffs/appellants herein this case, had failed to establish the same. 18. I have carefully gone through the decisions referred by Mr. Mazumdar and I find that the ratio laid down in the aforesaid cases, supported the submission of Mr. Mazumdar. 19. I have also carefully gone through the decisions referred by Mr. Deka, learned counsel for the appellants and the relevant provision under Section 58 of the Evidence Act and I find that even though the respondents herein have admitted that the suit land was acquired by the predecessor in interest, yet, the plaintiffs are required to prove the fact and said Section specifically gives full discretion to the court to require the facts admitted to be proved. 20. Though Mr. Deka, learned counsel for the appellants submits that by preponderance of probability the appellants herein had succeeded on the basis of Exhibit Nos. 1 & 2, yet, mere entering of names of the predecessor in interest of the appellants in the record of right would not be sufficient that by preponderance of probability the appellants herein have succeeded in establishing their title and this plea is not sustainable in view of the decision of Hon’ble Supreme Court in the case of P. Kishore Kumar (Supra) 21. In view of the aforementioned discussions and findings, this court is unable to find any substantial questions involved herein and even if involved, the same has to be answered in negative and accordingly, the same stands answered. 22. In the result, I find this appeal devoid of merit and accordingly, the same stands dismissed. The parties have to bear their own costs.