RSA 1/2011 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr. PK Roychoudhury, learned counsel appearing for the appellant. 2. The instant Regular Second Appeal is listed under Order XLI Rule 11 of t he Code of Civil Procedure for admission. The appellant herein was the plaintiff in Title Suit No. 9 of 2000 on the file of the Civil Judge (Jr. Div.) Hojai, Sa nkardev Nagar. The learned trial Court vide judgment and decree dated 30.4.2003 dismissed the suit and on appeal the learned first appellate court affirmed the judgement and decree dated 30.04.2003 thereby dismissing the appeal preferred by the plaintiff appellant vide judgement and decree dated 15.06.2006 in Title App eal No. 27 of 2003, which is under challenge before this Court in the instant Re gular Second Appeal. 3. The following substantial questions of law have been formulated which ar e quoted hereunder for adjudication- a) Whether a co-owners absolute right of composite property, be denied without partition? b) Whether the three essential rights, namely, right to possession, righ t to enjoy and right to dispose be denied of a co-owner? 4. To answer the substantial questions of law as formulated, it would be ap propriate to narrate the case of the parties pleaded and established;- Admittedly the plaintiff and the defendants are brothers and sisters and they ha ve inherited the scheduled land on the death of their father Sarbeswar Goswami. The pleaded facts in the plaint would disclose that the entire property belongin g to their late father was amicably settled amongst the legal heirs of Late Sarb eswar Goswami on 10.12.69 wherein the suit land measuring 12 Bighas 4 Kathas 1 Lecha out of total 15 Bighas 3 Kathas 6 Lechas covered by Dag Nno. 741/742/743 of Periodic Patta No.22 of Bamungaon Kissam, Mouza Kaki, District Nagaon falls u nder the share of the plaintiff whereas 16 Bighas, 3 Kathas, 3 Lechas of land co vered by Annual Patta No.3 (New) of Tiniali Bazar Kissamat, Mouza Kaki, District Nagaon under Dag No.123/92, 125/94 and 59/93 falls under the share of the defen dants in the suit and since the defendants have filed the partition cases amongs t the co-sharers of late Sarbeswar Goswami which is pending for disposal, thereb y clouded their right, title and interest over the suit land which prompted th e plaintiff to file the title suit praying as follows: a) That a decree be passed in favour of the plaintiff declaring his right, title, interest and possession over the suit land; b) That a decree be passed in favour of the plaintiff by granting a perm anent injunction against the defendants not to disturb the peaceful possession o f the suit land by the plaintiff and/or not to dispossess him forcibly of the su it land; c) That any other relief/reliefs and/or further reliefs the plaintiff is entitled to be decreed; d) That the cost of the suit be decreed against the defendants. 5. The main defendants, five (5) in numbers, contested the suit by filing t he written statement wherein they denied the claim of the plaintiff that the ent ire landed property was divided amongst the legal heirs and successors of late S arbeswar Goswami mutually and amicably by a family settlement on or about 10.12. 69 as claimed and it was further stated that the defendant Nos. 3, 4 and 5 have not relinquished their share as pleaded by the plaintiff. Thereby dismissal of t he suit was sought for. 6. On the pleadings of the parties, the learned trial court framed the foll owing issues: 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the suit is maintainable? 3) Whether the plaintiff has right, title and possession over the suit land? 4) Whether the plaintiff is entitled to the decree as prayed for? 5) To what relief, if any, the parties are entitled to? 7. To substantiate the claim of the alleged amicable settlement of the suit land as pleaded, the plaintiff has examined four witnesses apart from exhibitin g some documents, whereas the defendants examined three witnesses and exhibited some documents. The learned trial Court took up the issue No. 3 first for decisi on of the case. The learned trial Court after scrutinizing the entire evidences on record has held that the plaintiff has failed to prove the family settlement as pleaded in the plaint holding that the plaintiff has got no exclusive right, title and interest and possession over the suit land rather he is a co-owner alo ngwith the other defendant Nos. 1 and 2 and accordingly answered in the negative and in favour of the defendant and other issues were decided accordingly and di smissed the suit. 8. Being aggrieved with the judgement and decree passed by the learned tria l Court, the plaintiff preferred an appeal being Title Appeal No. 27/2003 on the file of the Civil Judge (Sr. Div.) Nagaon who after going through the memorandu m of appeal alongwith the evidence on record and the pleaded facts has dismissed the appeal holding that the plaintiff and defendants are co-owner of the suit l and and the plaintiff got no exclusive right, title, interest in absence of exam ination of any of his sisters to ascertain the share of the plaintiff over the s uit land which the plaintiff has failed to bring in the evidence and thereby fai led to prove the family settlement between the co-sharers of late Sarbeswar Gosw ami. 9. In view of such concurrent findings of both the learned trial Court and the appellate court, whether the substantial questions of law as formulated can be said to be substantial questions of law requiring interference under Section 100 of the Code of Civil Procedure. The answer is ’no’. The substantial question s of law do not require to be interfered with. However, facing with such a situa tion the learned counsel appearing for the appellant has, in support of his case , cited a decision reported in AIR 1999 SC 2272 (Kochunju Nair v. Koshy Alexande r and others), wherein the Apex Court has held that a co-owner is an owner along with other co-owners over the suit land till co-ownership of the property divide d by partition. If a co-owner wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place, the co-owner w ho puts up the homestead can claim that the said portion may be allotted to his share. If the other co-owner objects to the construction of a homestead, he can get the co-ownership property divided by partition and if the other party is not readily willing to that course, it is open for the co-owners to get it partitio ned through suit. There is no dispute over the decision rendered by the Apex Cou rt and accordingly, both the learned trial Court and the appellate court has hel d that the plaintiff and defendants are co-owners of the suit land and the plain tiff got no exclusive right, title, interest over the suit land which do not req uire to be interfered since both the substantial questions of law formulated are not the substantial questions of law. 10. However, in order to get rid of the cluster of the joint owners as co-sh arers of the land in dispute, the defendant Nos.1 and 2 have filed a partition c ase in respect of the suit land being No. 47/97 and 48/97 in Revenue Court at Sh ankardev Nagar, Hojai wherein the share of the parties would be ascertained, whi ch is pending for disposal. The decision in partition cases would rests the diff erences finally between the co-sharers of late Sarbeswar Goswami over the proper ties left by him. 11. For the reasons stated hereinabove, I do not find any substantial questi on of law involved to be adjudicated upon. Consequently thereupon no interferenc e is called for in exercise of power under Section 100 of the Code. 12. In the result the Regular Second Appeal stands dismissed. No costs.