Concurrent findings of the trial court and first appellate court are binding unless demonstrated to be perverse; appeals under Section 100 cannot disturb established facts without substantial questions of law.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

[1] Heard Mr. M.U. Mahmud, the learned counsel for the appellants. Also heard Ms. R. Choudhury, the learned counsel for the respondents.

[2] This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants, namely, 1. Md. Mokbul Hussain and 2. Abzol Hussain impugning the judgment and decree dated 12.03.2018, passed by the learned Civil Judge, Bongaigoan, Assam in Title Appeal No. 11/2014, whereby the appeal preferred by the appellant No.1 was dismissed and the judgment and decree dated 18.01.2014, passed by the court of the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 15/2007 was upheld.

[3] The facts relevant for consideration of the instant appeal, in brief, are that a plot of land measuring 41 Bighas 1 Katha and 5 Lechas situated in village Nayagaon, under Bijni Revenue Circle was jointly owned by one Sahabuddin Miah and Kamaruddin Shekh. Late Sahabuddin Miah was issueless so he adopted one Ismail Hussain as his foster son during his life time and gave 5 Bighas of land out of the aforesaid land (fully described in Schedule “A” of the plaint) to him. After deducting the aforesaid 5 Bighas of land from 41 Bighas 1 Katha and 5 Lechas, only 36 Bighas 1 Katha and 4 Lechas of land remained of the Schedule “A”, along with another plot of land measuring 4 Bighas 0 Katha and 13 Lechas in village Numberpara under Srijangram, Revenue Circle. It is this total 40 Bighas 1 Katha 18 Lechas of land which is the subject-matter of the suit.

[4] It is further averred in the plaint, file the Title Suit No.15/2007, that Sahabuddin, and after him his wife Mohiron Nessa died issueless and after their death Kamaruddin became the sole owner of the aforesaid plot of land. Kamaruddin had two wives, namely, Subjan Nessa and Kodbhanu Nessa. From the first wife, Subjan Nessa, Kamaruddin had two sons and three daughters and from the second wife Kodbanu Nessa, he had two sons and one daughter. Subjan Nessa had pre deceased Kamaruddin, and after the death of Kamaruddin, the plaintiffs, i.e., the two sons and one daughter of Kodbanu Nessa, including their legal representatives had filed a title suit before the court of the learned Munsiff, North Salmara, Abhayapuri, which was registered as Title Suit No. 15/2007. In the said suit the main reliefs sought for by the plaintiffs were for declaration of their right, title and interest over the property, according to Mohammedan Law, partition of the suit land as per the respective shares which the plaintiffs were entitled to, direction to the revenue authority to mutate the names of plaintiffs in the records of rights in respect of suit property, declaration that the order of Settlement Officer, Goalpara and Bongaigaon district passed on 16.09.2006, in connection with Misc. Appeal Case No. 21/2005 is illegal, collusive and not binding on the plaintiffs, for permanent injunction against the defendants for restraining them from evicting the plaintiffs from Schedule “A” land as well as for declaration that defendants No. 3, 4, 5 have no right, title and interest over the suit land and for recovery of khas possession of the suit land, if same is required necessary.

[5] There were 6(six) defendants in the aforesaid suit, however, all of them have filed a joint written statement wherein, they took plea of non-maintainability of the suit on the ground of lack of territorial jurisdiction of the court in which it was filed. They admitted that 5 Bighas of land out of the land owned by Sahabu