JUDGMENT :

Devashis Baruah, J.

1. Heard Mr. D. Choudhury, learned counsel appearing for the appellants and Mr. I.H. Saikia, learned counsel appearing on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure challenging the judgment and decree dated 24.06.2014 passed by the learned Civil Judge, Nalbari in Title Appeal No. 34/2013 whereby the judgment and decree dated 15.12.2012 passed by the learned Munsiff No. 2, Nalbari in Title Suit No. 31/2002 was upheld.

3. The learned counsel for the appellants, during the course of argument, has placed on record three substantial questions of law which the counsel urges should be formulated for the purpose of disposal of the instant appeal. Let me take the said formulations and see as to whether the said questions can at all be formulated as substantial questions of law at this stage under Order XLI Rule II of the CPC. The first question of law which was formulated by the learned counsel for the appellants is as to whether the findings of the appellate court in deciding the Issue No. 5 is without consideration of the defendants' right over the Schedule-Kha land by virtue of Ext-Kha i.e. the wakf nama and whether the finding as to the plaintiffs right, title and interest over the Schedule-Kha land is perverse to the evidence on record. For determination of the lis between the parties, it is relevant to take note of as to whether the said question of law can at all be considered to be substantial on the basis of the foundation laid in the suit.

4. The case of the plaintiffs is that vide Exts.2, 3, 4 and 8 the plaintiffs had purchased in total an area of 1 katha 16 lechas of land in Dag No. 238 and on the basis thereof taking into consideration the allegation that the defendants had dispossessed the plaintiffs from the Schedule-Kha land, the suit was filed seeking declaration of the plaintiffs' right over the Schedule-Kha land, for recovery of khas possession in respect of the Schedule-Kha land and for permanent injunction. In the plaint it has been specifically mentioned at paragraph 6 that the vendor of the plaintiffs had by their wakf nama transferred 1 katha 10 lechas of land under Dag No. 238 and other dags to Madhapur Hatkhala Supar Masjid Committee. The said paragraph has been denied in paragraph 7 of the written statement. Further to that, in paragraph 8, the case of the defendants is that the land under Dag No. 238 and Dag No. 239 wherein Morowa Bazar is situated was owned by Late Matiur Rahman and Late Matiur Rahman allowed to continue the bazaar over the said land and on the basis thereof the said Morowa Bazar is running. There is no whisper in the written statement as regards the wakf nama.

5. The learned counsel for the appellants had produced before this Court the wakf nama dated 27.09.1973 which was exhibited as Ext-Kha in the Title Suit. I have perused the schedule mentioned in the wakf nama as well as also perused the schedule mentioned in the plaint. From a perusal of the schedule mentioned in the plaint, more particularly the Schedule-Kha it goes to show that the to the north of the said land there is the land of under possession of the Masjid Committee. It is a trite principle of law that while framing the substantial question of law it has to be seen as to whether the said question of law involved in the said case has a foundation laid down in the pleadings and the question should emerge from the substantial question of fact arrived by the Courts of facts. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. In the instant case, there is no averment in the written statement as regards the wakf nama. In fact, as already stated in paragraph 7 of the written statement, the statements pertaining to the wakf nama has been denied by the defendants. In paragraph 8, as already stated herein above, the defendants have claimed their right on the b