Page No.# 1/22 GAHC010285572025 2026:GAU-AS:10293 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/89/2026 MD. KUBAD ALI AND 6 ORS. S/O LT. SAYAD ALI, R/O VILL- BECHAMARI, MOUZA AND P.S.- DHING, DIST.- NAGOAN (ASSAM) 2: MD. JAMAL UDDIN S/O LT. SAYAD ALI PREVIOUSLY R/O- BECHAMARI MOUZA AND P.S.-DHING DIST.- NAGAON ASSAM PRESENT R/O FOUZDARIPATTY MOUZA- TOWN P.S.- SADAR DIST- NAGAON (ASSAM) 3: BIPUL ALI S/O LT. SAYED ALI R/O BECHAMARI MOUZA AND P.S.- DHING DIST.- NAGAON ASSAM 4: MUSST. SAFIA BEGUM W/O JAHANUR ALI R/O DAUGURIGAON MOUZA- MIKIRBHETA DIST.- MORIGAON ASSAM 5: MUSST. SAMPA KHATUN W/O. LT. MUSTAFA HUSSAIN R/O BECHAMARI MOUZA AND P.S.- DHING DIST.- NAGAON ASSAM Page No.# 2/22 6: MUSST. SAKHINA BEGUM W/O SARIF ALI R/O SONARIGAON MOUZA- DHING DIST.- NAGAON ASSAM 7: MUSST. JUSHNA BEGUM W/O MD. MAJIBUR RAHMAN R/O VILL- BORIBANDHA MOUZA- LAHARIGHAT DIST.- NAGAO VERSUS MD. AFJOLUR RAHMAN AND ANR S/O AFTABUDDIN AHMED, R/O BECHAMARI, MOUZA AND P.S- DHING, DIST.- NAGAON, ASSAM 2:MD JAHANGIR AHMED S/O AFTABUDDIN AHMED R/O BECHAMARI MOUZA AND P.S- DHING DIST.- NAGAON ASSA Advocate for the Petitioner : MS. S B CHOUDHURY, Z DUTTA,MR. A U CHOUDHURY Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 27.07.2026 Heard Mr. A.U. Choudhury, learned counsel for the appellants. 2. This appeal, under Section 100 of the CPC, is directed against the judgment dated 18.09.2025 and decree dated 23.09.2025, passed by the learned Civil Judge (Senior Division), Nagaon (first appellate court hereinafter), in Title Appeal No. 09/2023. Page No.# 3/22 3. It is to be noted here that vide impugned judgment dated 18.09.2025 and decree dated 23.09.2025, the learned first appellate court had upheld the judgment and decree dated 18.03.2023, passed by the learned Munsiff No. 2, Nagaon (trial court hereinafter), in Title Suit No. 121/2007. 3.1. It is also to be noted here that vide judgment and decree dated 18.03.2023, the learned trial court had decreed the suit of the plaintiff declaring his right, title and interest of the plaintiff over the Schedule ‘A’ land and recovery of possession over Schedule ‘C’ land. 4. For the sake of convenience, the parties herein after will be referred to by their original status in the suit. Background facts: - 5. The background facts, leading to filing of this second appeal, are briefly stated as under:- “The respondents herein, as plaintiffs, had filed one title suit, being Title Suit No. 121/2007, against the present appellants, seeking a decree for declaration of right, title and interest over the Schedule ‘A’ land, confirmation of possession over Schedule ‘B’ land and recovery of possession over the Schedule ‘C’ land and for permanent injunction and for issue of precept. The case of the plaintiffs is that a plot of land measuring 2 bighas 1 katha 10 lechas, covered by Dag No. 10 of P.P. No. 444 of Bechamari Kissam, under Dhing Mouza of Nagaon district, is the suit land as described in Schedule 'A' of the plaint and the land described in Schedule 'B' and 'C' of the plaint is part of the suit land and the total area of land in Dag No. 10 of P.P. No. 444 was 5 bighas 1 katha Page No.# 4/22 3 lechas. One Alimuddin Sheikh, the proforma defendant No. 9 and his brother Naimuddin Sheikh (since deceased), the predecessor in interest of defendant Nos. 7 and 8 were the owners and possessors of the land measuring 4 bighas 3 kathas in the suit patta and dag and used to possess their respective half share exclusively by an amicable settlement. Thereafter, Alimuddin sold 4 kathas of land from his share to proforma defendant Nos. 11 and 12, namely Mobarak Hussain and Rafija Khatun and 1 bigha to defendant No. 19, namely Ahabulla Ahmed and their names have been mutated in the patta. Naimuddin Sheikh (since deceased), the predecessor in interest of the proforma defendants Nos. 7 and 8, while owning and possessing the suit land in his own exclusive right, sold the same to the plaintiffs, vide Registered Sale Deed No. 65, dated 18.01.2003 and delivered possession to the plaintiffs and while writing the schedule of the Deed, due to bonafide mistake of the scribe, the dag and patta number of the land was written wrongly. However, the boundary of the land was written correctly. Thereafter, on 03.02.2004, vide Rectification Deed No. 123, said mistake was rectified by both the parties. Then, after purchasing the land, the plaintiffs got their names mutated in respect of the suit land by way of Field Mutation and in the meantime, the principal defendants, in a league without any sort of right, title, interest or possession over the suit land, forcibly Page No.# 5/22 dispossessed the plaintiffs from the Schedule 'C' land, i.e. land measuring 1 bigha 3 kathas, on 25.12.2005 and constructed a thatched house over the same and while the plaintiffs protested against such illegal action of the principal defendants, they denied the title of the plaintiffs over the suit land and also in illegal manner cancelled the Field Mutation of the plaintiffs in respect of the suit land. But, subsequently, the plaintiffs, through an appeal, were able to restore the mutation of their names. The further case of the plaintiffs is that they are the rightful owners and possessors of the suit land and the principal defendants have no any legal right or possession over the same. They are only trespassers with respect to the 'C' Schedule land and as such, they are liable to be evicted from the suit land and therefore, the plaintiffs had instituted the suit, claiming the relief as stated above. The defendants entered appearance in the suit, on receipt of notice, contested the suit by filing written statement, wherein they had taken a plea that there was no cause of action and the suit was not maintainable in its present form and manner and also denied all the statements and averments made in the plaint. The case of the defendants is that land measuring 52 bighas, which includes different Dags and Pattas of Bechamari Kissam, under Dhing Mouja in the district of Nagaon, including a plot of land measuring 5 bighas 1 katha 3 lechas, covered by Dag No. 10 of Patta No. 444 of Bechamari Kissam, under Dhing Mouja in the district of Nagaon, originally belongs to one Sarumura Gaonburah, Page No.# 6/22 who died about 50 years back leaving his heirs/successors, i.e. two grand-sons and two grand-daughters, namely Alimuddin Seikh (the performa defendant No. 9), Naimuddin Seikh, Hamida Khatun (the present defendant No. 1) and Amina Khatun, as their father Numal died prior to the death of Sarumura Gaonburah and as such, said land devolved into them by right of inheritance. Thereafter, an amicable family settlement was made amongst them with regard to the entire landed property left by their predecessor in interest, Late Sarumura Gaonburah. The suit land falls into the share of Alimuddin Seikh (the present performa defendant No. 9) measuring 3 bighas 3 kathas 3 lechas and rest of the land measuring 1 bigha 3 kathas fell into the share of Hamida Khatun (the present defendant No. 1). According to the aforesaid family settlement, Hamida Khatun possessed the said land measuring 1 bigha 3 kathas, covered by Dag No. 10 of Patta No. 444 of Bechamari Kissam, under Dhing Mouja in the district of Nagaon, which is bounded by North - Naimuddin, South - P.W.D. Road, East - Ahmed Shah, West - Ahabullah and they have been occupying the said land with their dwelling houses, since the aforesaid amicable family settlement about 45 years back and subsequently, a relinquishment deed was also registered by the defendant No. 9 in favour of defendant No. 1. Further case of the defendants is that Alimuddin Seikh, (the proforma defendant No. 9) as per the aforesaid amicable family settlement and partition, got his share in some other pattas also, Page No.# 7/22 out of which he had sold some portion of land to other persons, one of them is the defendant No. 19. In fact Alimuddin Seikh (the performa defendant No. 9) neither had possessed and occupied any portion of land covered by the suit Dag and Patta nor claimed his right over the land in the suit Dag and Patta. It is also pleaded that, the plaintiffs have neither right, title and interest over the suit Patta and Dag, nor Naimuddin had acquired right to alienate or otherwise sell any portion of land to plaintiffs as claimed or rectify the original so called Sale Deed vide Rectification Deed No. 123/2004, showing the land alleged to be purchased from Naimuddin, to be bounded by as described above and in fact, the said portion of land was illegally and forcefully possessed by the plaintiffs in the year 2003, as alleged to be purchased land, vide Sale Deed No. 65/2003, dated 18.01.2003 and subsequently, rectified on 03.02.2004, vide Deed No. 123/2004, dated 03.02.2004. The said deeds confer no title to the plaintiffs as Naimuddin got no share over the suit land as alleged and Alimuddin Seikh (the performa defendant No. 9) after the family settlement, got land measuring 3 bighas 3 kathas 3 lechas, covered by Dag No. 10 of P.P. No. 444 of Bechamari Kissam, under Dhing Mouza in the district of Nagaon, as his share and out of his share he sold 1 bigha to one Ahabullah Ahmed (the proforma defendant No. 19) and 4 kathas to Mubarak Hussein and Rabiya Khatun and remaining land measuring 4 kathas 3 lechas belongs to Page No.# 8/22 Allimuddin Seikh which is now possessed by the plaintiffs alleging that the same was purchased from Naimuddin, whereas Naimuddin had not acquired right to alienate or otherwise sell any portion of the aforesaid land. It is further pleaded that the plaintiffs’ claim in the suit is vexatious, malafide and involves concealment of material facts and as such, the suit is liable to be dismissed with costs. Thereafter, the learned trial court after hearing learned counsel for both the parties, had framed the following issues:- i. hether the suit is maintainable in its present form? ii. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? iii. Whether the suit is barred by any principle of law? iv. Whether the plaintiff is in possession of the suit land? v. Whether the plaintiff has right, title and interest over the suit land? vi. Whether the plaint is defective in material particulars? vii. Whether the plaintiff is entitled to any relief, if so, what? Thereafter, upon examining the witnesses and also the documents exhibited, the learned trial court had decided the issue No. i, iv, v & vii in affirmative in favour of the plaintiffs and issue Page No.# 9/22 Nos. ii, iii & vi in negative. Thereafter, decreed the suit of the plaintiffs declaring their right, title and interest over the Schedule ‘A’ land of the plaint and also a decree for recovery of khas possession over the Schedule ‘C’ land of the plaint and to put the plaintiffs in possession of the suit land by evicting the principal defendant and his men and agents by removing any construction of the defendant over the said schedule land and also a decree for permanent injunction with cost. Then, being aggrieved, the plaintiffs preferred an appeal, being Title Appeal No. 09/2023, upon which the learned first appellant court had formulated following points for determination:- i. Whether the learned trial court has rightly decided the issues taken for determination from i – vi in M.S. No. 204/2021 (sic T.S. No. 121/2007) and dismissed (sic decreed) the suit? ii. Whether the orders were rightly passed? Thereafter, having examined the record as well as the evidences and the documents exhibited, the learned first appellant court had decided both the points in favour of the plaintiffs and affirmed the decision of the learned trial court, dated 18.03.2023. 6. Then, being aggrieved, the defendants (the present appellants) preferred the present appeal, under Section 100 of the CPC, by suggesting following substantial questions of law:- i. This second appeal raises a substantial question of law as to whether a co-owner can sell/transfer his Page No.# 10/22 share of land without any valid partition? ii. This second appeal raises a substantial questions of law as to whether a Suit claiming land on the basis of a sale-deed in respect of a joint property without claiming partition is sustainable in the eye of law? iii. This second appeal raises a substantial question of law as to whether the respondent/plaintiffs have lawfully discharged their liability to prove their claim for right, title and interest over the suit property as required under Section 101 of the CPC? iv. This second appeal raises a substantial question of law as to whether the impugned judgment and decree dated 18.09.2025, passed in Title Appeal No. 09/2023, is violative of the Order 41 Rule 31 of the CPC? v. This second appeal raises a substantial question of law as to whether the findings of the Learned Courts below suffer from perversity? Submissions: - 7. Mr. Choudhury, learned counsel for the appellants, submits that though as many as five substantial questions of law are suggested herein this appeal, he would mainly press upon the substantial question Nos. i, ii, iii & v. Mr. Choudhury, taking this Court to the plaint, which is annexed with the memo of appeal, submits that there is no claim for partition of the suit property although the same is a joint family property and that unless the suit land is partitioned, the joint family property cannot be sold. Mr. Choudhury further submits that while decreeing the suit of the plaintiffs, the learned trial court did not grant the Page No.# 11/22 relief of partition. Mr. Choudhury also submits that without claiming partition, the plaintiffs cannot claim the right, title and interest on the basis of the sale deed and that the plaintiffs have failed to discharge their liability to prove their claim for right, title and interest over the suit property. Mr. Choudhury also submits that the finding of both the learned courts below suffers from perversity and under such circumstances, Mr. Choudhury has contended to admit this appeal on the afore stated suggested substantial questions of law. Consideration and Analysis of this Court:- 8. Having heard the submissions of learned counsel for the appellants, this Court has carefully gone through the memo of appeal as well as the suggested substantial questions of law and the judgment and decree passed by the learned trial court and also the impugned judgment and decree passed by the learned first appellate court. 9. As discussed herein above, the learned trial court had framed as many as seven issues and out of the same, issue Nos. iv & v appear to be vital issues and will clinch the entire suit. Notably, the said issues are related to whether the plaintiffs are in possession and whether the plaintiffs have right, title and interest over the suit land. The learned trial court after discussing the evidences held that the claim of the plaintiffs over the suit land is based on the sale deed No. 65/2003 and rectification deed No. 123/2004 and the said documents were marked as Exhibit Nos. 2 & 3 by the PW1 and the said documents are also proved by PW3 and PW4 and the said two witnesses are official witnesses, one is scribe of the deed, being sale deed No. 65/2003 and witness of rectification deed No. 123/2004 and the defendants side failed to bring out anything during the cross-examination to contradict the evidences of these official witnesses as well. Page No.# 12/22 9.1. The learned trial court had also observed that these two documents, whereby the plaintiffs claimed to have obtained their title over the suit land, are only valid if their vendor, namely Naimuddin, had acquired the right over the suit property. It has been observed that the defendants have also admitted in their written statement that the suit land originally belonged to the predecessor of the defendant No. 1, pro-forma defendant No. 9 and the vendor of the plaintiffs. However, the plea of the defendant is that Naimuddin had no share in the suit land as per a family settlement between the heirs of the original pattadar. It has further been held that the certified copy of the jamabandi of the suit patta No. 444 reveals that in Dag No. 10 of the patta, Alimuddin and Naimuddin were the original pattadars. The said jamabandi also reveals that as per order dated 23.02.2004, the names of the plaintiffs were mutated in place of Naimuddin with respect to 2 bighas 1 katha 10 lechas land of the suit Dag and Patta by right of purchase. 9.2. It was also observed by the learned trial court that mere entry in revenue records does not give rise to right in favour of a person. But, the entries in revenue records cannot be outrightly rejected and the same is to be given due consideration and weightage. 9.3. In holding so, the learned trial court relied upon a decision of this Court, in the case of Amiya Bala Dutta vs. Mukut Adhikari, reported in (1999) 1 GLR 229. It was further observed that the defendant side, in their written statement as well the DWs in their evidence have stated that the vendor of the plaintiffs had no share in the suit land by way of a family settlement and the defendants have failed to adduce any evidence in support of that and also to rebut the version of the plaintiffs. Page No.# 13/22 9.4. Further, it is observed that DW2 and DW3 admitted having no knowledge about the suit land and the share of the defendants and the vendor of the plaintiffs. DW1 stated that both Alimuddin and Naimuddin had their land adjacent to each other, but he does not know the number of Dag and Patta and he also does not know whether there was any partition between them. DW2, on the other hand, stated that Naimuddin and Alimuddin had their land at different places and both of them sold their land. DW2 further stated in his cross examination that Naimuddin had sold his share of the land to the plaintiffs, but he does not know the land in possession is of the plaintiffs. The learned trial court further held that there is some contradiction in the versions of the DW1 and DW2 and it is also partly revealed from the deposition of DW2 that Naimuddin had sold his share of the land to the plaintiffs. Thereafter, the learned trial court had held that the plaintiffs had succeeded by adducing his oral evidence and documentary evidence in establishing his claim over the Schedule ‘C’ land in the plaint and thereby decided both the issues in affirmative in favour of the plaintiffs. 10. Further, in the impugned judgment and decree, the learned first appellate court had held that the onus to prove or show that the title to the suit land rests on the plaintiffs and the plaintiffs have contended that the total area of land in Dag No. 10 of P.P. No. 444 of Bechamari Kissam, under Dhing Mouza of Nagaon district, is 5 bighas 1 katha 3 lechas and Alimuddin Sheikh, i.e. the proforma defendant No. 9 and his brother Naimuddin Sheikh (since deceased), the predecessor in interest of defendant Nos. 7 and 8, were the owners and possessors of land measuring 4 bighas 3 kathas in the suit patta and dag and used to possess their respective half share exclusively by amicable settlement. In the meantime, Alimuddin sold 4 kathas of land from his share to proforma Page No.# 14/22 defendant Nos. 11 and 12, namely Mobarak Hussain and Rafija Khatun and 1 bigha to defendant No. 19, namely Ahabulla Ahmed and their names have been mutated in the patta. 10.1. It is also stated that Naimuddin Sheikh (since deceased), the predecessor in interest of the proforma defendants Nos. 7 and 8, while owning and possessing the suit land in his own exclusive right, sold the same to the plaintiffs, vide Registered Deed of Sale No. 65, dated 18.01.2003 and delivered possession of the same to the plaintiffs. It is also stated that while writing the schedule of the deed, due to bonafide mistake of the scribe, the Dag and Patta number of the land was written wrongly. However, the boundary of the land was written correctly. Thereafter, on 03.02.2004, vide Rectification Deed No. 123, said mistake was rectified by both the parties. 10.2. The learned first appellate court had also observed that the principal defendants claimed that originally the land in the suit Dag and Patta belonged to one Sarumura Gaonburah, who died about 50 years back, leaving his heirs/successors, two grand-sons and two grand-daughters, namely Alimuddin Seikh (the performa defendant No. 9), Naimuddin Seikh, Hamida Khatun (the present defendant No. 1) and Amina Khatun, as their father Numal died prior to the death of Sarumura Gaonburah, the said land devolved into them by right of inheritance. Thereafter, an amicable family settlement was made amongst them with regard to the entire landed property left by their predecessor in interest, Late Sarumura Gaonburah. 10.3. The learned first appellate court had also observed that the defendants further claimed that the suit land falls into the share of Alimuddin Seikh (the performa defendant No. 9) measuring 3 bighas 3 kathas 3 lechas and rest of the land measuring 1 bigha 3 kathas falls into the share of Hamida Page No.# 15/22 Khatun (the present defendant No. 1). According to the aforesaid family settlement, Hamida Khatun possessed the said land measuring 1 bigha 3 kathas, covered by Dag No. 10 of Patta No. 444 of Bechamari Kissam, under Dhing Mouza in the district of Nagaon and they have been occupying the said land with their dwelling houses since the aforesaid amicable family settlement that took place about 45 years back and subsequently, a Relinquishment Deed was also registered by the defendant No. 9 in favour of defendant No. 1. 10.4. 10.4. The learned first appellate court has further observed that the defendants claimed that the plaintiffs have no right, title and interest over the suit Patta and Dag land, as Naimuddin had not acquired right to alienate or otherwise sell any portion of the suit land to the plaintiffs as claimed. It was asserted that in fact the said portion of land was illegally and forcefully taken into possession by the plaintiffs in the year 2003, as alleged to be their purchased land, vide Sale Deed No. 65/2003, dated 18.01.2003 and subsequently, rectified on 03.02.2004, vide Rectification Deed No. 123/2004 and the said deeds confer no title to the plaintiff, as Naimuddin did not get any share over the suit land as claimed. 10.5. The learned trial first appellate court also held that it is stated that Alimuddin Seikh, after the family settlement, got land measuring 3 bighas 3 kathas 3 lechas, covered by Dag No. 10 of P.P. No. 444 of Bechamari Kissam in the district of Nagaon, as he, out of his share, sold out 1 bigha to one Ahabullah Ahmed (the proforma defendant No. 19) and 4 kathas to Mubarak Hussein and Rabiya Khatun and remaining land measuring 4 kathas 3 lechas, belongs to Allimuddin Seikh, now possessed by the plaintiffs alleging that the same was purchased from Naimuddin, whereas Naimuddin had not received any share in the suit patta and thereby, had not acquired right to alienate or otherwise sell Page No.# 16/22 any portion of the aforesaid land. 10.6. The learned first appellate court had again observed that the plaintiff as PW1, in his evidence, has reiterated the averments made in the plaint and PW2, corroborated the evidence of PW1. PW3 is the Deed Writer, who scribed the Sale Deed (Exhibit – 6) and PW4 is the witness to the Rectification Deed (Exhibit – 7). The witnesses were duly cross-examined by the defendants side, but they failed to elicit anything in their favour. These two witnesses, PW3 & PW4, prove the fact of execution of Registered Sale Deed No. 65, dated 18.01.2003 and the Rectification Deed, dated 03.02.2004, vide which the plaintiff had purchased the suit land from Naimuddin and though the defendants had disputed the said fact, the defendants could not produce any evidence in support of their claim that the Sale Deed is a forged one and Naimuddin had never executed the same as he had no share in the suit patta. 10.7. The learned first appellate court further observed that the learned counsel for the defendants/appellants has argued that the vendor of the plaintiffs could not make a valid sale in favour of the plaintiff, as he had no land in the suit patta, as per the amicable family settlement of the landed property amongst the legal heirs of Late Sarumura Gaonbura. Further, the defendants, though averred that the plaintiff has illegally and forcefully taken possession over the suit land, the defendants failed to produce any evidence in respect of the same and there is no proof of the amicable family settlement, whereby only the defendant No. 1, Hamida Khatun and proforma defendant No. 9, Alimuddin got share in the suit patta and on the contrary, perusal of Exhibit – 1, the Jamabandi of P.P. No. 444, reveals that the names of Alimuddin and Naimuddin have been recorded therein as pattadars along with one Wahab and Usman Ali, but the name of Hamida Khatun does not appear therein. And in the Exhibit – 1, Page No.# 17/22 plaintiffs' names have been mutated as per order dated 23.02.2004, in place of Naimuddin and that the defendants had neither filed any petition for cancellation of such mutation, nor they had agitated their position in any legal forum and the defendants have not produced any single evidence (either oral or documentary) of amicable settlement. When the alleged family settlement on the basis of which the right, title and interest are being claimed by the defendants, was never produced in evidence and proved, by no stretch of imagination it can be said that the defendants had succeeded in establishing the same. 10.8. The learned first appellate court has also observed that though the Sale Deed No. 65, dated 18.01.2003, is claimed to be fraudulently executed, the same was never challenged by the defendants despite their admission that the plaintiffs have been claiming the suit land since 2003, as their purchased land on the strength of the said Sale Deed. Thereafter, decided both the issues in affirmative and upheld the finding of the learned trial court in respect of Issue Nos. iv & v. 10.9. Thus, there appears to be concurrent finding of facts by both the learned court below in respect of the issues Nos. iv & v. The finding of fact by both the learned courts below is based upon proper appreciation of materials on record and supported by decision of this Court. 11. Though Mr. Choudhury, learned counsel for the appellants, has contended that the suggested substantial question of law Nos. i, ii, iii & v are involved, yet his submission left this Court unimpressed, in view of the provision of Section 44 of the Transfer of Property Act, a co-owner can sale his share of land without any valid partition. The said Section read as under:- Page No.# 18/22 "44. Transfer by one co-owner. Where one of two or more со-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling- house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." 12. Thus, in view of the provision of Section 44 of the Transfer of Property Act, this Court finds that the suggested substantial question of law No. (i) is not flows out of the impugned judgment and decree passed by the learned first appellate court. Being the co-owner, the vendor of the plaintiff had the right to transfer his share although the same was not partitioned between the vendor of the plaintiff, namely, Naimuddin and Alimuddin, pro-forma defendant No.9 and they possessed their respective share after amicable settlement as held by the learned first appellate court. In holding so this Court derived authority from a decision of Hon’ble Supreme Court in S.K. Golam Lalchand v. Nandu Lal Shaw @ Nand Lal Keshri reported in (2024 INSC 676), wherein it has been held that a sale by a co-owner is valid only to the extent of the selling co- owner’s own undivided share. 13. Further, going through the plaint of the title suit, which is annexed Page No.# 19/22 with the memo of appeal, it appears that the plaintiffs in the prayer number (d) has made a prayer that a precept may be issued directing the Revenue Department, Nagaon, to grant perfect partition in the names of the plaintiffs with respect to the suit land and correct the revenue records as per decree of the suit. 14. In view of above, the submission of Mr. Choudhury, learned counsel for the appellants, seems to be not based on the record and the suggested substantial question of law No. ii, appears to be not flowing out of the impugned judgment and decree passed by the learned first appellate court. 15. Further, the suggested substantial question of law No. iii, which according to Mr. Choudhury, learned counsel for the appellants, is involved in this appeal, yet this Court finds that there is concurrent finding of fact in respect of right, title and interest of the plaintiff over the suit land and sitting in second appeal, this Court is not entitled to appreciate the evidence again in view of the concurrent finding of fact unless perversity is demonstrated, which the appellant herein could not demonstrate and as such, the said substantial question of law also not flows out of the impugned judgment and decree passed by the learned first appellate court. 16. Coming to the last substantial question of law, which Mr. Choudhury emphasized regarding the perversity, yet he failed to demonstrate from the impugned judgment and decree passed by the learned first appellate court and also by the judgment and decree passed by the learned trial court that the same are suffering from any perversity. 17. It appears that the learned trial court as well as the learned first appellate court had considered the evidence of both oral and documentary in its Page No.# 20/22 proper perspective and arrived at a reasoned finding and the same warrants no interference of this Court. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Pertap Chunder Ghose vs. Mohendranath Purkait, reported in ILR (1890) 17 Cal 291 (PC),the Privy Council has observed that the limitation as to the power of the Court imposed by Sections 100 and 101, in a second appeal, ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. In the case of Ramgopal vs. Shamskhaton, reported in ILR (1893) 20 Cal 93 (PC), the Privy Council emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below. The same principle has been reiterated in Rudr Prasad vs. Baijnath, reported in ILR (1893) 15 All 367. The Court observed that a judge, to whom a memorandum of second appeal is presented for admission, is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily. 17.1. In the case of Santosh Hazari v. Purushottam Tiwari (Dead) By Lrs, reported in (2001) 3 SCC 179, a three-Judge Bench of Hon’ble Supreme Court has delineated the scope of Section 100 CPC, and held that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. It was also held that the word substantial, as qualifying ‘question of law’, means—of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. Page No.# 21/22 17.2. In the case of H.P. Pyarejan vs. Dasappa, reported in (2006) 2 SCC 496, Hon’ble Supreme Court observed that the judgment of High Court suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence. 17.3. It is also to be noted here that in the case of Thiagarajan vs. Sri Venugopalaswamy B. Koil, reported in (2004) 5 SCC 762, Hon’ble Supreme Court has held as under :- “The High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.” 17.4. Similar observation was made by Hon’ble Supreme Court, in the case of State of Kerala vs. Mohd. Kunhi, reported in (2005) 10 SCC 139, has held as under:- “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 Page No.# 22/22 scope of Section 100 of the Code of Civil Procedure.” 18. In view of above, the suggested substantial questions of law appear not to be flowing out of the impugned judgment and decree passed by the learned first appellate court and as well as the learned trial court. 19. Accordingly, this second appeal stands summarily dismissed, at this motion stage itself. JUDGE Comparing Assistant