IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.52 of 2006 1. Sheikh Abdul Gafoor s/o Late Sk. Mohammaddin 2(i) Mohammad Ali 2(ii) Jawed Ali 2 (iii) Shamshad Begum 3. Kashiran Khatoon w/o Sk. Bismillah All resident of Village Kabilasawa (Kabilaspur) P.O. V.S.Mills Harokhua P.S. Thawe Dist. Gopalganj Plaintiffs- Appellants- Appellants Versus 1. Mohibani w/o Sk. Rasul 2. Sk. Mustafa s/o Sk Rasul Both resident of Village Kabilaspur P.O. Harakhua P.S. and Dist. Gopalganj 3. Sk. Aalauddin @ Jalaluddin s/o Sk. Nathu resident of Village Kabilaspur P.O. Harakhua P.S. Thawe Dist. Gopalganj 4. Kabulan w/o Shaheed Mian resident of Village Jalahi Tola P.S. Uchakagaon PO Barkagaon Dist. Gopalganj 5. Kadiran w/o Qaiyum Mian resident of Village Ijmali P.S. Barharia Dist. Siwan at present village Kabilaspur P.O. Harokhua P.S. Thawe Dist. Gopalganj 6. Nabihan w/o Reyazuddin resident of Village Phulwaria P.S. Manjhagarh Dist. Gopalganj 7. Najaitan w/o Khalil Mian resident of Village Balua Tola P.S. Manjhagarh Dist. Gopalganj 8. Md. Aslam 9. Noor Alam 10. Naushad Alam All sons of late Tasaur Mian resident of Village Kabilaspur P.O. Harokhua P.S. Thawe Dist. Gopalganj 11. Sk Ismuddin 12 (i) Qumrunissa (ii) Rehana Khatoon (iii) Apsari Khatoon 13. Sk. Noor Hassan 14.Sk. Amir Alam All resident of Village Kabilaspur P.O. V.S. Mills P.S. Thawe Dist. Gopalganj 15. Bibi Jan w/o Ainul Haque resident of Village Meer Alipur P.O. Sugar Mil Harakhua P.S. Thawe Dist. Gopalganj 16.Newajun Khatoon w/o Ali Hussain 17.Noor Saba d/o late Sk. Ali Hussain resident of Village Kabilaspur P.O. V.S. Mills Harokhua P.S. Thawe Dist. Gopalganj 18. Bibi Hadisan w/o Saheb Hussain both resident of Village Kabilaspur P.O. V.S. Mills Harokhua P.S. Thawe Dist. Gopalganj - 2 - 19. Bibi Noor Gannat w/o Nasir Ahmad 20. Sk Saghir Alam 21. Sk. Noor Alam both resident of Village Kabilaspur P.O. V.S. Mills Harokhua P.S. Thawe Dist. Gopalganj 22. Vasisma Khatoon w/o Nasruddin resident of Village Kabilaspur P.O. V.S. Mills Harokhua P.S. Thawe Dist. Gopalganj 23. Bibi Sajun w/o late Sk. Abdul Aziz resident of Village Kabilaspur P.O. V.S. Mills Harokhua P.S. Thawe Dist. Gopalganj Defendants – Respondents-Respondents ----------------------- For the appellants: Mr Abbas Haider, Advocate ------------------- 10/ 04.03.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.369 of 1992 which was filed by the plaintiffs for declaration of their title over the suit land and for confirmation of possession and in the alternative recovery of possession along with other ancillary reliefs. The said suit was dismissed on contest by the learned Subordinate Judge VI, Gopalganj vide his judgment and decree dated 03.05.1999. 4. Against the aforesaid judgment and decree of the learned trial court, the plaintiffs filed Title Appeal no.49 of 1999 (195/2005) which was also dismissed by the learned Additional District Judge II, Gopalganj, vide his judgment and decree dated 20.12.2005. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid impugned judgments and decree and claims that the learned - 3 - courts below had not considered the matter in its true perspective and the plaintiffs’ claim had been mainly rejected on the ground that they had failed to give the date of oral gift but it was quite apparent from the evidence on record specially exhibit 6 which is the certified copy of deposition of the donee in another case bearing M.S. No. 39 of 1953 in which he had stated that he had made oral Hiba on 16.06.1966 in favour of the father of the plaintiffs. It was also claimed by learned counsel for the appellants that the learned court of appeal below had merely reiterated the findings of the trial court without appreciating the pleadings and evidence of the parties with respect to the issues involved nor had he framed any issue himself as was required under the provision of section XLI Rule 31 of the Code of Civil Procedure. 6. After careful consideration of the materials on record including the judgments and decree of the learned courts below, it is quite apparent that the case of the plaintiffs is based on oral hiba with respect to the suit land said to have been made by Sheikh Usman Gani in favour of Sheikh Mohamaddin ancestor of the appellants, but in his pleadings neither the plaintiffs mentioned the date of oral gift nor the intention of the doner to gift the suit property to the donee and hence the essential requirements of a gift under section 149 of Mulla’s Mohammendan Law were not fulfilled. It is also quite apparent that the said facts regarding the alleged oral gift were not even mentioned by any of the witnesses of the plaintiffs including the plaintiffs themselves and no documentary evidence had been produced to prove the said facts except exhibit 6 which is the certified copy of the deposition of late Sheikh Usman Gani in M.S. No. 39 of 1953. Furthermore, from the said exhibit 6, it is quite apparent that the said statement had been given in a - 4 - money suit which was a defence with respect to denial of taking any loan from the plaintiffs of the money suit to avoid encumbrance over the suit property. Hence the said statement in absence of any other pleadings and evidence on behalf of the plaintiffs in the instant case can not be of any help to them as it appears that merely taking a hint from the said statement the instant suit had been filed. 7. So far the judgment passed in title appeal is concerned, it is quite apparent that the learned court of appeal below has affirmed the findings of the learned trial court in its totality after considering the entire evidence of the parties which is quite apparent from paragraphs 28,29 and 30 of his judgment which appears to be sufficient with respect to the instant matter. 8. So far the provision of Order XLI Rule 31 of the Code of Civil Procedure is concerned, no doubt it prescribes that the court of appeal has to formulate points for deciding a title appeal but from paragraphs 12 and 13 of the judgment of the learned court of appeal below, it is quite apparent that it had noted all five issues framed by the learned trial court and it found that issue nos. 3 and 4 were main inter-linked issues which were decided by the learned court of appeal below in paragraph 14 onwards. In the said circumstances, there appears to be no infirmity in law in the said judgment as per provision of law as the learned court of appeal below was aware on the points, which were to be decided in the title appeal and in fact, has decided the title appeal on the basis of the aforesaid main issues. 9. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned - 5 - courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)