RSA 2/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY The subject matter of challenge, in the instant appeal, is the judgment and orde r dated 23.11.2009 passed by the learned Civil Judge, Dhubri in Title Appeal No .8/2006 affirming the judgment and order dated 17.12.2005 & 03.01.2006 passed by the learned Civil Judge (Junior Division) No.2, Dhubri dismissing the appellant -plaintiffs’ Title Suit No.45/96. I have heard Mr. G.P. Bhowmik, learned counsel for the appellants/plaintiffs and Mr. J. Ahmed, learned counsel for the respondent Nos.1 to 9. None appears for the proforma respondents. In the aforementioned suit, where the appellants-plaintiffs inter alia prayed fo r a decree for declaration of their joint title in the suit land alongwith the v endors of one Soleman Ali, their pleaded case was that during the minority of th e appellants-plaintiffs No.2,3 and 4, the appellant-plaintiff No.1 and their eld er brother Soleman Ali (since deceased) took settlement of the land measuring 12B.2K.4Dhar from one Alahi Akand, whereafter, the same came to their possession . During the subsequent settlement operation, the land was according to the appe llants-plaintiffs erroneously recorded in the name of the Jotdar Alahi Akand whi ch was thereafter, for his default in payment of revenue put to auction sale. S oleman Ali (since deceased) purchased the suit land on auction on 11.07.1978. A ccording to the appellant-plaintiffs however, he could not get exclusive possess ion of the suit inspite of the purchase as they (appellants-plaintiffs) had been in occupation thereof. Soleman Ali (since deceased) however indulged in a serie s of sales from the suit land to different persons and though belatedly, took st eps to have his name mutated in support of the suit land to the exclusion of the appellants-plaintiffs. Situated thus, the suit was filed. The respondent Nos.1 to 9 (heirs of Soleman Ali) contested the suit inter alia contending that the Elahi Akand was the original owner of the suit land and that in the auction sale their predecessor in interest Soleman Ali purchased the sa me and was thus vested with the title in it. They denied the factum of settlemen t of suit land by Elahi Akand in favour of the appellant-plaintiffs and prayed f or dismissal of the suit. The learned trial Court on a consideration of the pleadings of the parties and t he evidence on record, dismissed the suit. Noticeably, in the suit, the appella nt-plaintiffs, though adduced evidence, both oral and documentary, the Defendant No.1 to 9 (Respondent No.1 to 9) did not do so. The learned lower appellant Co urt have affirmed the dismissal. Mr. Bhowmik has insistently argued that in the face of failure of the Responden t Nos.1 to 9 to deny the assertion of settlement in favour of the appellant-plai ntiffs as well as unrebutted evidence adduced by them (appellant-plaintiffs) in this regard, the learned Courts below erred in law in dismissing the suit. Acco rding to him, the witnesses of the appellant-plaintiffs having through oral evid ence proved the settlement of the suit land in their favour by the Jotdar Elahi Akand, the learned Courts ought to have decreed the suit. Mr. Ahmed, in reply has contended that the claim of settlement of the suit land by Elahi Akand in favour of the appellant-plaintiffs not having been proved in a ccordance with law, the learned Courts below were perfectly justified in dismiss ing the suit. As the findings are concurrent in nature based on the appreciation of the evidence on record, this appeal lacks in merit and ought to be dismissed , he urged. Upon hearing the learned counsel for the parties and on a consideration of the p leaded facts and the documents available on record, this Court is inclined to su stain the resistance raised on behalf of the respondents No.1 to 9. Noticeably, in terms of the averments made in the plaint their case is demonstrably founded on the claim of settlement of the suit land in their favour by the Elahi Akand. The averment to this effect has been denied by the Respondent Nos.1 to 9 (Defe ndant No.1 to 9) in their written statement. The burden being on the appellants -plaintiffs to prove this factual aspect, it was incumbent on them to adduce ade quate oral and documentary evidence. Admittedly, no documentary evidence in thi s regard is available on record. Though, Mr. Bhowmik has drawn the attention of this Court to the oral testimony adduced on behalf of plaintiff-appellants, in the opinion of this Court having regard to the decisive bearing which this aspec t of the controversy has on the rival pleas, the same per se is not sufficient e nough to clinch the issue in their favour. The view taken by the learned Courts below on the appreciation of the evidence o n record, both oral and documentary when judged in this perspective cannot, by a ny means be repudiated to be illegal or frivolous warranting interference in the exercise of this Courts power U/s.100 of the Civil Procedure Code. This Court is of the view that no substantial question of law arises to be examined in the instant appeal. It therefore, lacks in merit and is dismissed. No costs.