JUDGMENT AND ORDER :

Devashis Baruah, J.

1. Heard Mr. A. Mobaraque, the learned counsel appearing on behalf of the appellants.

2. The instant appeal arises out of the judgment and decree dated 04.05.2019 passed by the Court of the Civil Judge, Barpeta, Assam in Title Appeal No.58/2017 whereby the said appeal was dismissed thereby affirming the judgment and decree dated 26.09.2017 passed by the Court of the Munsiff No.2, Barpeta, Assam, in Title Suit No.74/2015.

3. The instant appeal has been taken up for consideration at the stage of Order XLI Rule 11 to ascertain as to whether there arises any substantial question of law that can be formulated in terms with Section 100(4) of the Code of Civil Procedure, 1908 (for short the “Code”).

4. For ascertaining as to whether any substantial question of law is involved in the instant appeal that can be formulated, this Court would like to take note of brief facts of the instant case which led to the filing of the instant appeal. For the sake of convenience, the parties herein are referred to in the same status as they stood before the Trial Court.

5. The respondent No.1 herein as plaintiff had instituted a suit which was registered and numbered as Title Suit No.74/2015 before the Court of the Munsiff No.2, Barpeta. From a perusal of the plaint, it transpires that a plot of land measuring 1 Bigha most specifically described in Schedule-A to the plaint was settled by the Government in favour of one Late Rajendra Nath Choudhury and Sabed Ali who went on possessing the said land without partitioning the land in any manner. Pursuant to the death of Mr. Rajendra Nath Choudhury, his sons have obtained mutation of the land along with Sabed Ali on the basis of an order dated 20.05.1970 of the SDC. The plaintiff along with his brothers i.e. Tayeb Ali (defendant No.1), Noor Mohammad (proforma defendant No.2) and Intaz Ali (proforma defendant No.1) jointly purchased the western half of the land in Schedule-A from one Mazibar Rahman who was the son of Sabed Ali vide a registered Sale Deed bearing Deed No.5699/70 dated 28.10.1970 followed by a registered rectification deed bearing No.5742/70 dated 30.10.1970. Thereupon, the plaintiff, the defendant No.1 as well as the proforma defendant Nos. 1 and 2 obtained mutation over the said plot of land. The said plot of land measuring 2 Kathas 10 Lechas had been specifically described in Schedule-B to the plaint.

6. From the plaint, it further transpires that the plaintiff, defendant No.1 and the proforma defendant Nos. 1 and 2 have been possessing the Schedule-B land jointly by holding the land by plot as per their comfort and convenience more or less to the extent of the legitimate shares but without partitioning the land in any manner. The plaintiff had specifically mentioned that the land described in Schedule-B1 is the land which the plaintiff was enjoying possession and measured 12½ Lechas with specific boundaries. The proforma defendant No.1, Intaz Ali had rights over the land described in Schedule-B2 which was also 12½ Lechas in size with specific boundaries. It has been also alleged in the plaint that taking into consideration that the plaintiff, the defendant No.1 and the proforma defendant Nos. 1 and 2 were all brothers from the common parents, all of them were holding the land in Schedule-B jointly without formally partitioning the land in any manner. Accordingly, some parts of the land in Schedule-B2 remained under the occupation of the defendant No.1. Subsequent thereto, the proforma defendant No.1 had offered to sell the land described in Schedule-B2 to the plaintiff for valuable consideration. The plaintiff having agreed, vide a registered deed bearing Deed No.3348/2014, the proforma defendant No.1 transferred the Schedule-B2 land to the plaintiff. Upon purchase of the said Schedule-B2 land, the plaintiff asked the defendant No.1 to vacate the partial occupation in the land described in Schedule-B2 however, the defendant No.1 did not do so.

7. Subsequ