ORDER Heard learned counsel for the appellants. 2. The present second appeal arises out of Title Suit No. 22 of 1998 filed by the appellants which was dismissed vide judgment and decree dated 05-04-2007 and 24-04-2007 respectively, passed by learned Sub Judge I, Purnea. First appeal preferred by the appellants/plaintiffs vide Title Appeal No. 22 of 2007 also came to be dismissed by learned Additional District Judge, F.T.C. No. 2, Purnea vide judgment and decree dated 28-09-2011 and 20-10-2011 respectively. Hence, this present second appeal which has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. Parties, in the present appeal have been described as per their position before the trial court. 3. It transpires that the sons and daughters of late Abdul Aziz brought the title suit (partition) No. 22/1998 against the defendants seeking a preliminary decree for partition of the plaintiffs as per the share described in schedule A and B lands and for direction to the defendants to partition the suit lands by metes and bounds within a time to be fixed by the court failing which appointment of a survey knowing advocate commissioner to partition the suit lands by metes and bounds and carve out a separate Takhta for the plaintiffs with their respective shares in schedule A and B lands and allot the same exclusively to the plaintiffs. They further sought a relief that the lands sold and purchased by the plaintiffs be calculated in their share and after submission of the report of the survey knowing advocate commissioner and hearing objections to his report, a final decree be passed accordingly. 4. As per the plaintiffs’ case, lands of R.S. Khata No. 2, 4, 5 and 6 of Mouza Gyandob, Thana Amour, Thana No. 140 and R.S. Khata No. 47 of Mouza Amour, Thana Amour, Thana No. 159 and R.S. Khata No. 1 of Mouza Bahadurpur, Thana Amour, Thana No. 153 originally belonged to late Abdul Aziz son of late Gulzar Ali having ½ share and Bibi Imaman and Bibi Sabezan daughters of late Gulzar Ali having ½ share and were recorded as such in the revisional survey with their mother Most. Hamidan. Most. Hamidan died leaving behind her son Abdul Aziz and the daughters as mentioned above, who were the only legal heirs and were all along enjoying possession thereof. Hamidan. Most. Hamidan died leaving behind her son Abdul Aziz and the daughters as mentioned above, who were the only legal heirs and were all along enjoying possession thereof. It was further pleaded that lands of R.S. Khata No. 3 and 73 of Mouza Gyandob belonged to Abdul Aziz son of late Gulzar Ali who was in possession of the land exclusively. The lands of these two Khatas formed part of schedule-B of the plaint. 5. Abdul Aziz is said to have died leaving behind his widow Zabula, two sons Zabadul Haque (defendant No.1) and Ziaul Haque (plaintiff No.1) and six daughters, Bibi Fatma, Bibi Maimun, Bibi Marin (plaintiff No.2), Bibi Lakma, Bibi Fulo and Bibi Naizun (plaintiff No. 3) before the courts below. 6. It was pleaded that Bibi Sabejan, daughter of late Gulzar Ali, sold away her entire share in schedule-A land to Bibi Jabula wife of Abdul Aziz, Bibi Mairum (plaintiff No. 2) Bibi Fulo and Jabdul Haque. 7. It was also pleaded that Bibi Habiban and Bibi Tahira, daughters of late Imaman, sold away their share in schedule-A land to plaintiff No.1. Accordingly, Ziaul Haque and Jabedul Haque (defendant No.1) were put in joint possession over the said property. It was also pleaded that Most. Jabula, Jwadul Haque, Bibi Fatima, Bibi Marium, Bibi Maimun, Bibi Lakma and Bibi Fulo sold 35 decimals of land appertaining to R.S. plot No. 1094 of R.S. Khata No.4 of Mouza Gyandob to Habibur Rahman son of Bechan Ali and defendant No.3, Bibi Mehrun Nishan wife of Habibur Rahman by kewala dated 29-02-1968 and put them in possession. It was also pleaded that daughters of Abdul Aziz, namely, Bibi Fatma, Bibi Fulo and Bibi Lakma sold their entire share to plaintiff No.1 and defendant No.1. Habibur Rahman vendee of Most. Jabulla died leaving behind his widow, Mehrun Nishan, defendant No.3, mother Kulsum, defendant No.4 and four sons, namely, Md. Hasib, Abdul Hamid, Abdul Quaisar Alam and Akhtar Alam who were made defendants Nos. 5, 6, 9 and 10 respectively, and three daughters, Bibi Hamida, Bibi Hasiman and Bibi Sahin. 8. As per plaintiffs by another kewala on the same date Most. Jabula, Jwadul Haque, Bibi Fatma, Bibi Maimun, Bibi Marium, Bibi Lakma and Bibi Fulo sold an area of 60 decimals of land appertaining to R.S. plot No. 1096 of R.S. Khata thereof. 5, 6, 9 and 10 respectively, and three daughters, Bibi Hamida, Bibi Hasiman and Bibi Sahin. 8. As per plaintiffs by another kewala on the same date Most. Jabula, Jwadul Haque, Bibi Fatma, Bibi Maimun, Bibi Marium, Bibi Lakma and Bibi Fulo sold an area of 60 decimals of land appertaining to R.S. plot No. 1096 of R.S. Khata thereof. It was further pleaded that Bibi Fatma sold an area of 4 decimals of land of R.S. plot No. 1088, 1090, 1105 and 1109 of R.S. Khata No.4 an area of 11 decimals of land out of R.S. plot No. 1085, 1110, 1460 and 1474 of R.S. Khata No.5 of Mouza Gyandob to Md. Islam and Md. Asfaque sons of Ibrahim. They also pleaded that defendant No.1, Jawadul Haque along with Most. Jabula and Bibi Marium sold away an area of 11 decimals 7½ karies of land out of R.S. Plot No. 1088, 1090, 1105 and 1109 of R.S. Khata No.4 and 30 decimals 18¾ karies of land out of R.S. plot No. 1085, 1110, 1460 and 1474 of R.S. Khata No. 5 of Mouza Gyandob to Sk. Qamruzama and Afaque sons of Sk. Ibrahim by virtue of registered sale deed dated 08-01-1970. The plaintiffs also pleaded that Bibi Fulo, daughter of Abdul Aziz, also sold an area of 4 decimals of land out of R.S. plot No. 1088, 1098, 1105 and 1109 of R.S. khata No.4 and an area of 11 decimals of land out of R.S. plot No. 1085, 1110, 1460 and 1474 of R.S. Khata No.5 of Mouza Gyandob to the aforesaid Afaque and Sk. Qamruzama by virtue of registered sale deed dated 09-01-1970 and put them in possession thereof. The plaintiffs, thus, pleaded that Bibi Fatima, Bibi Marium, Bibi Fulo, Bibi Lakiman, Jabadul Haque, defendant No.1 and Jiaul Haque, plaintiff No.1 sold away an area of 5 decimals 7½ karies of land out of R.S. plot No. 1109 and 37 decimals 2½ karies of land out of plot No. 1106 of R.S. Khata No. 4 of Mouza Gyandob to Dilip Kumar Karmkar and Kamal Kumar Karmkar, sons of Rameshwar Karmkar, defendants No. 18 and 19; by virtue of sale deed dated 28-03-1977. By another sale deed dated 15-04-1976 Jiaul Haque, plaintiff No.1, Bibi Lakiman, Bibi Janijun and Bibi Maimun sold away to Afaque an area of 20 decimals 1¼ karies of land out of R.S. plot No. 1088 and 1090 of R.S. Khata No. 4 and an area of 58 decimals 5 karies. Further plaintiff No.1/ appellant No.1 is said to have sold an area of 23 decimals 7½ karies out of R.S. plot No. 2021 and 2025 of R.S. Khata No. 47 of Mouza Bahadurpur to Amruddin son of Moshab Ali, defendant No.22 by virtue of registered sale deed dated 15-06-1981. 9. On the basis of these facts, the plaintiffs pleaded that wife of Abdul Aziz and her aforesaid daughters sold their entire share in schedule-A land and claimed that plaintiffs Nos. 1 to 3 being sons and daughters of Abdul Aziz were owners of 3/2, 2/5 paisa share and 6/4, 4/5 paisa share in schedule-A and schedule-B land respectively, by way of inheritance together with the shares they purchased from other co-sharers minus their sale to other purchasers. The plaintiffs pleaded, specifically, that the suit lands are in joint possession of the plaintiffs and defendants and there has been no partition between them by metes and bounds though they are in separate possession of some of the suit lands for the sake of convenience of cultivation. They claimed that as the defendants refused to accede to their request for partition by metes and bounds, cause of action arose leading to institution of the title suit. 10. The defendants, who are respondents in the present case, on the other hand, contested the suit by filing their written statement. The respondents denied that the suit land of khata No.1 of Mouza Bahadurpur schedule-A of the plaint belonged to Most. Hamidan. According to them the said land belonged to Md. Aziz, father of the plaintiffs Nos. 1 to 3 and defendant No.1 and Bibi Imaman and Bibi Sabejan and after their death, their legal heirs have been coming in possession over their exclusive share after partition of the property. They claimed that plaintiffs Nos. Hamidan. According to them the said land belonged to Md. Aziz, father of the plaintiffs Nos. 1 to 3 and defendant No.1 and Bibi Imaman and Bibi Sabejan and after their death, their legal heirs have been coming in possession over their exclusive share after partition of the property. They claimed that plaintiffs Nos. 1 to 3 and defendant No.1 and legal heirs of Bibi Imaman and Bibi Sabejan had partitioned the suit land of schedule-A by metes and bounds long ago according to Khangi partition and, accordingly, the plaintiffs and defendant No.1 sold their shares out of suit lands in favour of different persons through registered sale deeds executed on various dates as per Khangi partition. To reinforce his claim, it was pleaded that the plaintiff No.1 had also sold some of his lands out of her share in favour of defendant No.1. The defendants took the plea that on 25-05-1978 0.35 decimals of lands of khata No.5 plot No. 1083 and 0.55 decimals of plot No. 1160 of R.S. khata No. 5 of Mouza Gyandob P.S. Amour have been allotted to Bibi Maimun, plaintiff No.3, and Bibi Marium, plaintiff No.2 and, therefore, they are not entitled to get share in the rest of the properties of their father Abdul Aziz. The defendants also denied that Bibi Imaman died leaving behind her brother Abdul Aziz. It was pleaded that Abdul Aziz was step brother of Most. Imaman and Most. Hamidan is mother of Abdul Aziz and Most. Samidan is mother of aforesaid Bibi Imaman, therefore, Abdul Aziz is not entitled to get share in the left properties of Imaman according to Mahomedan law. It was, accordingly, pointed out that plaintiffs Nos. 1 to 3 were not entitled to get share in the left properties of aforesaid Most. Amna, daughter of Imaman. They pointed out that Bibi Imaman died leaving behind three daughters, namely, Bibi Amna, Bibi Habiban and Bibi Tahira who sold their entire share in their left properties of their aforesaid mother Bibi Imaman in favour of defendant No. 1. 11. On the basis of pleadings of the parties, learned trial court framed seven issues including issues No. v and vi, summary of which as follows:- “(v) Whether there is unity of title and unity of possession between the plaintiffs and defendants with respect to disputed lands or not? 11. On the basis of pleadings of the parties, learned trial court framed seven issues including issues No. v and vi, summary of which as follows:- “(v) Whether there is unity of title and unity of possession between the plaintiffs and defendants with respect to disputed lands or not? (vi) Whether the plaintiffs are entitled to share in the land in question of schedule- A and B to the extent of 4/13/5 and 8/31/5 paisa respectively or not?” 12. After issues having been framed, the parties led their evidence, both oral and documentary. After considering the entire evidence on record, including documentary evidence, learned trial court came to conclusion that there was no unity of title and possession over the suit properties among the plaintiffs and defendants, while deciding issued No. v against the plaintiffs. This was the main issue for determination and the issue having been decided against the plaintiffs, other issues were also decided against the plaintiffs including issue No. vi. 13. Aggrieved by the judgment and decree of learned trial court, the plaintiffs’ preferred first appeal vide title appeal No.22 of 2007. Learned first appellate court, that is, the court of Additional District Judge, F.T.C., 2 Purnea, on the basis of pleadings, oral and documentary evidence available on record, judgment of the trial court as well as grounds taken in the appeal formulated two points for consideration namely:- “(i) Whether the judgment and decree passed by the learned Sub-Judge-1st Purnea in T.S. No. 22/98 is illegal, perverse, without jurisdiction or any irregularity is found thereunder or not. (ii) Whether there is unity of title and possession with respect to the suit property in between the plaintiffs and the defendants/ respondents.” 14. Learned first appellate court proceeded to determine point No.2 first which reaches at the root of the dispute. 15. Learned first appellate court, on the basis of rival pleadings, took note of the facts which were admitted between both the parties which included:- (a) The suit properties mentioned in schedule-A and B are the ancestral properties of the plaintiffs and defendants, recorded in the name of Abdul Aziz in R.S. khatiyan. (b) Khangi partition between plaintiffs and defendants had already taken place. (c) Inter se transactions of suit properties took place between the parties. (b) Khangi partition between plaintiffs and defendants had already taken place. (c) Inter se transactions of suit properties took place between the parties. (d) Plaintiffs transferred their share with regard to their ancestral property as per their share from specific plot having definite area with boundary. 16. Learned first appellate court, after having considered these facts and other evidence available on record, after discussing the same in detail, came to a finding that the plaintiffs failed to prove the unity of title and possession with respect to suit properties, as mentioned in schedule of the plaint. Point No.2 having been decided against the appellants, point No.1 was also decided against them and the appeal was accordingly dismissed. 17. Assailing the judgment and decree passed by learned first appellate court dated 28-09-2011 and 20-10-2011, learned counsel for the appellants has vehemently submitted that the courts below committed gross illegality in holding that the plaintiffs and defendants had partitioned their ancestral properties merely on account of the fact that the parties had made certain transactions through sale deeds and their vendees had got possession over the vended plots and contended that there was nothing on record to establish that there was partition earlier by metes and bounds. Leaned counsel for the appellants has also submitted that the judgments of the court below are vitiated for the reason that they failed to consider that as per Mahomedan law share devolves upon shareholders as soon as the person dies and they cannot alienate their share without there being any partition by metes and bounds. He also submitted that courts below drew incorrect inference from the pleadings of the plaintiffs that transaction in respect of the suit properties was admitted fact rather according to them it was merely pleaded that certain lands were transferred to the parties. 18. As regards the finding of the courts below to the effect that the plaintiffs failed to prove unity of title, such finding cannot be said to be perverse as such finding is based on appreciation of evidence by the courts below. It is not the case of the appellants that the courts below failed to consider any material evidence or came to their finding which are contrary to material available on record. It is not the case of the appellants that the courts below failed to consider any material evidence or came to their finding which are contrary to material available on record. I do not find any infirmity in the findings of the courts below which is based on the material available on record to the effect that plaintiffs themselves transferred certain lands to their vendees who had got possession over the vended plots and also the fact that such transfers were made to the co-sharers also. The plea taken on behalf of the appellants in the present second appeal that shareholders could not alienate their share without there being any partition by metes and bounds is demolished by their own stand that the plaintiffs themselves alienated their shares which suggests that there was partition in the family be metes and bounds. 19. In any view of the matter, I do not find that the present second appeal involves any substantial question of law for the reason that whether there was partition in the family by metes and bounds or not is a question of fact and findings of fact arrived at by the courts below, on the basis of evidence on record, cannot be said to raise a substantial question of law. In the facts and circumstances of the case, the present second appeal has, thus, no merit and is, accordingly, dismissed.