RSA 209/2011 BEFORE HON’BLE MR. JUSTICE B.P.KATAKEY This appeal by the plaintiffs is directed against the judgment and decree, dated 16th of August, 2011, passed by the learned Civil Judge, Barpeta, in Title Appe al No. 22/2011, dismissing the appeal preferred by them and thereby affirming th e judgment and decree dated 31.3.2011 passed by the learned Munsiff No. 1, Barpe ta in Title Suit No. 134 of 2009, whereby and whereunder the suit of the plainti ffs was dismissed. The appellants as plaintiffs instituted the aforesaid suit for declaration of r ight, title and interest to the extent of 6Bs-2Ks-7Ls of land out of 9B-2K-10L ( described in Schedule B to the plaint) and prayed for confirmation of possessi on, apart from praying for a decree of cancellation of the sale deed No. 180/199 4 executed by the Proforma defendants in favour of the defendant No. 1 in respe ct of the land measuring 9B-2K-10L, contending inter alia that though the profor ma defendants Meghjan Bidhaba and her daughter Khudeja Khatun together gets land measuring 3B-0K-3.3L, they have sold 9B-2K-10L of land in favour of the defenda nt no. 1, thereby selling the land which falls in the share of the plaintiffs ou t of 9B-2K-10L of land. The defendants contested the suit by filing written statement contending inter a lia that the wife and the daughter of Abdul Goni, the original owner, namely, Me ghjan Bidhaba and Khudeja Khatun got 5B-4K-17.6L and 9B-1K-19L of land respectiv ely out of the total land belonging to Abdul Goni and there was amicable partiti on, out of which 9B-2K-10Ls of land was sold to the defendant No. 1 by Meghjan B idhaba and her daughter Khudeja Khatun by registered deed of sale on 7.2.94 acco mpanied by delivery of possession. The learned trial court on the basis of the pleadings of the parties framed the following issues for consideration and decision - 1. Whether the plaintiffs have right, title and interest and possession over the suit land to the extent of 6B-2K-&L ? 2. Whether Meghjan Bidhaba and Khudeja Khatun had saleable right over the schedule B(i) land being they are the legal heirs of Abdul Goni? 3. Whether the sale deed no. 100/94 executed on 07.02.1994 is fraudulent and illegal and so it is liable to be cancelled ? 4. Whether the plaintiffs are entitled for a decree as prayed for in the suit ? 5. To what relief or relief(s) the parties are entitled to ? The learned trial court upon appreciation and evidence on record both oral and d ocumentary, dismissed the suit of the plaintiffs by the aforesaid judgment and d ecree. Being aggrieved, the plaintiffs preferred Title Appeal No. 22/2011 before the court of the learned Civil Judge, Barpeta, which has also been dismissed by the aforesaid judgment and decree dated 16.8.2011. I have heard Mr. Dhar, the learned counsel for the appellants/plaintiffs. It has been contended by the learned counsel for the appellants/plaintiffs that it is being nobodies case that as Abdul Goni left behind 75B-0K-13Ls of land, h is wife and the daughter would get 15B-1K-16.75L of land, the learned appellate court ought not to have held that Abdul Goni left behind 75B-0K-13L of land out of which the proforma defendants got 15B-1K-16.75L of land, who sold 9B-2K-10L t o the defendant No. 1, hence the judgment needs to be interfered with being perv erse. It has also been submitted that since it has been specifically pleaded in the plaint that Schedule B land measuring 9B-2K-10L belonging to the predecessor -in-interest of the plaintiffs as well as the proforma defendants, namely, Abdu l Goni, under the Mohammedan Law, Meghjan Bidhaba and Khudeja Khatun(wife and th e daughter of Abdul Goni) would get only 3B-0K-3.3L and since they by registered sale deed dated 7.2.1994 transferred more than to which they are entitled to, t he sale deed is illegal, inoperative and not binding, the same having engrossed the land fell in the share of the plaintiffs. It appears from the appellate judgment, more particularly, in paragraph 13 ther eof, that the PW 1 during his cross examination has admitted that Abdul Goni had left behind 75B-0K-13Ls of land and after his death for last 35 to 40 years all the heirs are living separately by making amicable partition of their land. PW 1 even has admitted that he does not know why he has filed the suit. It also app ears from the said judgment passed by the learned appellate court that PWs 2, 3 and 4 during their cross examination also admitted that Meghjan Bidhaba and Khud eja Khatun sold the land fell in their share. That being the position, even if it was not pleaded that Abdul Goni left behind 75B-0K-13L of land, there being unconverted evidence on record in that regard, t he said fact cannot be ignored while ascertaining the quantum of land fell in th e share of the wife and the daughter of Abdul Goni. PW 1 has also admitted the a micable partition of land apart from living all the legal heirs separately in te rms of the partition for last 35 to 40 years. Since the finding of fact has been recorded by both the learned courts below re lating to the share of Meghjan Bidhaba and Khudeja Khatun, such finding of fact cannot be disturbed in a second appeal, there being no perversity. In view of the above, I do not find any substantial question of law so as to admit the second appeal and hence, the same is dismissed. No cos t.