1. This is plaintiff's second appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 5-9-2014 passed by the First Additional District Judge, Bilaspur (CG) in Civil Appeal No. 24-A/2010, affirming the judgment and decree dated 15-2-2001 passed in Civil Suit No.33-A/1999 whereby the appeal filed by the plaintiff was dismissed.

2. This appeal has been admitted by this court on 13-1-2015 on the following substantial questions of law:

examination of attesting witness No.1?

(ii) Whether the omission to decide the applications filed under Order 6 Rule 17 of CPC and Order 41 Rule 27 of CPC has vitiated the entire judgment and decree?

(iii) Whether the lower appellate Court erred in holding that the plaintiff's suit is barred by time, by reversing the findings of the trial court in this regard?

3. For sake of convenience, the parties have been referred to as shown in the original suit filed in the trial court.

4. The brief facts as reflected from the record are that the plaintiff has filed a civil suit in the year 1990 claiming declaration of title and possession by alleging inter alia, that the suit property bearing Khasra No. 176, 177, 178 and 180 (renumbered as Khasra Nos.180/1, 180/2 an 180/3) admeasuring respectively 1.10 acres, 0.72 acres, 0.08 acres and 8.5 acres (total 11.14 acres) situated at village Chantidih, District Bilaspur was recorded in the revenue records in the name of Mohd. Sharif S/o. Afzal Beg. It has been further averred in the plaint that the plaintiff and respondents No.1 and 2 are relatives and they are governed by the Mohammadan Law. It has also been contended that the father of plaintiff and defendant No.2 Sheikh Daud @ Daddu has purchased the land from his own income and due to love and affection he has recorded the suit land in the name of his younger brother namely late Mohammed Sharif, but in fact neither late Mohammad Sharif was real purchaser nor he was owner of the suit property. It has also been contended that late Mohammed Sharif was aware of the factual position, as such, he has declared to give the land to the legal representative of original owner late Mohammad Sheikh Daud @ Daddu's, defendant No.1 Mohammed Saeed and Mohammed Ishaq are aware of this declaration. It has also been averred in the plaint that Mohammed Sharif expired in the year 1955, at the time of his death plaintiff was minor and his mental position was also not Page 5 of 42 proper as he was mentally disturbed and getting treatment at Nagpur. It has also been contended that as per advice of Doctor, he was kept away from all the mental tensions. It has also been contended that the defendant No.1 Mohammed Saeed taking advantage of the plaintiff's incapacity of look after the property, he has done conspiracy and decided to take the said land on rent for Rs 3,000/- from the plaintiff. The plaintiff was not aware about the conspiracy committed by the defendant No.1 who is his cousin. Therefore, the plaintiff has given the said land on rent to defendant No.1 and defendant No.1 was paying rent of Rs.3,000/- annual rent to the plaintiff as a tenant. This fact has been brought to the notice of the plaintiff in the month of April 1990 that defendant No. 1 is tenant of the plaintiff and is being paid Rs. 3,000/- per month by defendant No. 1. It has also been contended that in the month of April 1990, the plaintiff was made aware that defendant No.1 intended to sell the property on the basis of possession. When the plaintiff has contacted defendant No.1, then defendant No.1 informed him that his name has been recorded and the Patwari has also verified the same fact, therefore, the plaintiff has sent a registered legal notice to the defendant No.1 only on 11-4-1990. Defendant No.1 replied the said notice on 20-4-1990. Since, the defendant No. 1 is making an effort to sell the property therefore, the plaintiff has sent legal notice through his counsel on 11.04.1990 which was replied by defendant No. 1 on 20.04.1990. The plaintiff to restrain defendant No. 1 from selling of the suit property has sent various notices and also published in the newspaper.

5. It has also been contended that after considering the reply of defendant No.1, it has been brought to the notice of the plaintiff that there was a dispute between the defendant No.1 and Mohammad Ishaaq and a civil suit was filed wherein the decree has been passed in the favour of defendant No.1. It is pertinent to mention here that late Mohammad Ishaaq was uncle of plaintiff and defendant No.1 and on account of filing of the suit for partition by him, three brothers of Mohammad Sharif, out of which legal heirs of elder brother Sheikh Daud @ Daddu were Page 6 of 42 made party to the case, but along with them defendant No. 1 should have informed to the Court regarding non-impleading of legal heirs of late Sheikh Daud as party in the suit, but they deliberately to deprive the interest of plaintiff and defendant No. 1 have not joined the party to the case. It has also been pleaded that they are aware that if the plaintiff and defendant No. 2 joined as party to the case, then they will be deprived from the property, therefore, they have not given any intimation to the plaintiff and defendant No. 1.

6. It has also been contended that neither late Mohammad Sharif was the owner of the property nor has right to give the land to defendant No.1 as gift, but the defendant No.1 with malice to deprive the plaintiff and defendant No. 2's interest has done conspiracy of giving gift of the suit property, which is a forged and fabricated story. It has also been contended that because of that conspiracy plaintiff and defendant No.2 were not made party to the case, therefore, judgment and decree passed by the trial court is not binding upon them nor they are governed by the said judgment and decree. On the above factual foundation, the plaintiff has filed present suit for declaration that the suit property purchased by the plaintiff's father late Sheikh Daud @ Daddu was recorded in the name of his younger brother late Mohammad Sharif in the revenue records of the suit property, though he is not actual owner of the land. It has also been declared that Mohammad Sharif not being owner of the land, has no right to transfer or to gift the said land to defendant No. 1. It has also been prayed that the late Mohammad Ishaq and defendant No.1 concealing the fact regarding actual title of plaintiff and defendant No.2 have obtained decree which is not binding upon the plaintiff as they have not been made party to that case, therefore, the judgment in the previous suit is not binding upon the plaintiff and the defendant No2. It is also prayed that the possession of the suit property be granted from defendant No.1 in favour of the plaintiff.

7. The defendants have filed their separate written statement.

Defendant No.1 Mohammad Saeed has filed written statement Page 7 of 42 admitting the fact that Mohammad Sharif died in the year 1955 and also contending that defendant No.1 was living with Mohammad Sharif since his childhood, therefore, before one year from his death, he has given oral gift to defendant No.1 including the suit property and since then he is in possession of the suit property and his name has also been recorded in the revenue records. It has been further admitted by him that Shiekh Daud @ Daddu was the father of plaintiff and defendant No.2 and their father died in the year 1948, It has also been contended that at the time of death of Mohammad Sharif, his elder brother namely Sheikh Daud @ Daddu who was the father of defendant No.1, Mohammad Siddique, Mohammd Ishaq and one sister Fatima Bi were also there. It is also contended that Mohammad Sharif and Mohammd Ishaq were residing at Raipur and after death of Mohammad Shariff, defendant No.1 and his father Mohammad Siddique filed a civil suit before the Court of Civil Judge, Class I, Bilaspur regarding partition and for share of their crop, at that time sister Fatima Bi died, therefore, her son and daughters were made party to the case wherein it has been pleaded by Mohd. Ishaq that after death of Mohammad Sharif, he and sister of Mohammad Siddique are joint title holders and they are in possession of the suit property, therefore, the son and daughters of Fatima Bi were also made party to the case. Suit was registered as Civil Suit No. 79-A/1997 and he has referred to the pleadings in that suit wherein it has been contended that the Mohammad Sharif has kept defendant No.1 as adopted son and he was maintaining him and before his death he has given to him the entire land as gift which has been accepted by defendant No.1 and his name has also been recorded in the revenue records.

8. It has also been contended that learned trial Court after appreciating the evidence, material on record, has recorded a finding that Mohammad Sharif has given the entire property to defendant No.1 as gift, therefore, he is sole owner of the suit property and he is in possession of the said property. The suit filed by Mohammad Ishaaq was dismissed on 23-8-1973, Page 8 of 42 against which an appeal was preferred by Mohammad Ishaq and same is also dismissed on 26-2-1977, against that second appeal was preferred but during pendency of the appeal Mohammad Ishaaq, therefore, legal representatives of Mohammad Siddique were not brought on record, as such, the second appeal No. 331 of 1977 was dismissed as abated. Facts pleaded by the defendant have been denied with regard to title and owner of the suit property. It has been contended that the defendant No.1 in all the civil suits was representing and all the documents were produced by him through his signature. It has been also contended that everybody is aware of the fact that the defendant No.1 was kept with Mohammad Sharif since his childhood, all the lands have been given to him as gift, therefore, nobody has right over the suit property. It has also been contended that as per rules the name of defendant No.1 has been recorded in the revenue records and since then he is in possession of the suit property and as per the previous judgment of the trial court, the name of the defendant No.1 has been recorded, therefore, the plaintiff has no right to challenge the same as per principle of res judicata and would pray for dismissal of the suit.

9. Defendant No.2 Mohammad Qadar has filed written statement and supporting the case of the plaintiff and admitted the pleadings made in the plaint and would pray that the relief sought for by the plaintiff be granted to him as he has no objection and would also pray that the cost incurred for contesting the case be imposed upon the defendant No.1 and he may also be granted compensation of Rs. 10,000/-.

10. Defendant No. 4 to 11 have filed separate written statement denying the averments made in the plaint mainly contending that the suit property is self acquired property of Mohammad Sharif, therefore, Shiek Daud @ Daddu or his legal representatives have no right over the suit property. It is also contended that the defendant No.1 has gifted some land of Khasra Nos. 176, 180/1 and 180/3 to Afzal Masjid Committee Bilaspur and has also sold some part of the property whereas the defendant No.1 has no Page 9 of 42 right to sell or to gift the land to anybody, therefore, purchaser of the property or the person who has been given gift by the defendant No.1 is necessary party but they have not been arrayed as party to the case, therefore, the suit cannot be decided properly. It has also been emphatically denied that the defendant was having possession over the suit property as tenant and in fact the defendant No.1 and all the defendants are jointly residing in their own share and after death of Mohammad Sharif, defendant No.1 and rest of the defendants are residing out of Bilaspur, therefore, unanimously it has been decided to allow the defendant No.1 to do agricultural work on the suit property and the defendants used to give share of the crop produced during the agricultural work. It has also been contended that the defendant Abdul Kalam's son Firoz Khan who is power of attorney holder is completely serious ill but he need some monetary benefit, but the defendant No.1 has not given any monetary benefit on the count that the defendant has no right over the suit property as his name has been recorded in the revenue records. The defendants through their counsel enquired and then it was found that the defendant No.1 has illegally recorded his name in the revenue records, therefore, he has filed an application before the Tahsildar wherein High Court of Madhya Pradesh has passed the order and in pursuance of the said order, the proceedings have been closed. This information was brought to the notice of defendant No.1 that till the appeal is pending, mutation proceedings shall not be carried out, but ignoring this order for recording his name, the defendant No.1 has moved an application before the Land Records at Bilaspur on 29-8-1989 which is still pending but concealing the fact he has obtained the order of mutation on 7-8-1992 wherein the name of defendant No. 1 has been recorded. It has been further contended that the parties in the previous suit are different parties and their interest is also different, therefore, the interest of defendants has not been decided and the appeal has also not been decided finally, therefore, principle of res judicata is not applicable. The defendants have taken additional plea Page 10 of 42 before the trial Court that the defendant No. 1 to grab the property has taken in consisted stand as sometime he is saying that the property has been gifted to him or sometime he takes stand of adoption and both these things are incorrect facts and also prayed for dismissal of the suit.

11. Defendant No. 13 and 14 who are wife and husband have filed their written statement contending that they have purchased 0.60 acres of land and at that time the name of Sardar Joginder Singh was recorded and he was in possession of the suit property, as such in view of the registered sale deed, title and possession has been obtained by them and, therefore, they are bona fide purchasers of the suit property. It is also contended that they know about Sardar Joginder Singh and they have not done any transaction with Mohammad Saeed or anybody, therefore, they have prayed for dismissal of the suit.

12. On the pleadings of the parties, learned trial court has framed as many as nine issues which read as under.

(1) D;k oknh izfroknh dzekad 2 oknxzLr Hkwfe ds Hkwfe Lokeh gS~+\ (2) D;k Lo-'kjhQ dks oknxzLr Hkwfenku djus dk vf/kdkj ugha Fkk] izHkko \ (3) D;k eksgEen 'kjhQ oknxzLr Hkwfe ds Hkwfe Lokeh ugha Fks] izHkko ~+\ (4) D;k vfHkdfFkr vkKfIr 'kwU;or gS \ izHkko \ (5) D;k O;ogkjokn dzekad 79,@72 ds QyLo#i ;g okn jsl&T;wfVdsVk gksus ds dkj.k pyus ;ksX; ugha gS \ (6) D;k nkok le;kof/k ds ckgj gS] ;fn gka rks] izHkko \ (7) D;k izfroknh dzekad&1 oknh ls 5000@& #i;s {kfr ikus dk vf/ kdkjh gS \ (8) D;k izfroknh dzekad&1 oknh ls 5000@& #i;s {kfr ikus dk vf/ kdkjh gS \ (9) D;k izfroknh dzekad&2] izfroknh dzekad&1 10]000@& #i;s {kfriwfrZ izkIr djus dk vf/kdkjh gS \ lgk;rk ,oa O;; \

13. To substantiate his stand, plaintiff has examined the witnesses plaintiff, Mohammad Bashir (PW/1), Shankar Prasad Dubey (PW/2) and Shiv Shankar (PW/3) and to substantiate his pleadings he has exhibited the documents ie., medical prescription dated 18-7-1991 (Ex.P/1), newspaper (Ex.P/2), Page 11 of 42 notice dated 11-4-1990 (Ex. P/3), reply given by the defendant to the notice dated 17-4-1990 (Ex.P/4) and deposition of Mohammad Saeed recorded in the Civil Suit No. 79-A/1972 (Ex.P/5).

14. Defendant No.1 Mohammed Qadar to substantiate his stand has examined himself, Mohammed Sayeed (DW/1), Mohammad Yasin (DW/2), Saroj Kumar (DW/3) and Laxmi (DW/4) and exhibited the documents Keshband Kautani (Ex.D/1), right of revenue record (Ex.D/2), Rinpustika (Ex.D/3), Tahreenama written in Urdu (Ex. D/4), photocopy of Tahreenama translated into Hindi (Ex D/4-c) and Ikrarnama (Ex. D/1). To substantiate his stand, defendant No.1 Mohammad Saeed has exhibited documents ie., revenue receipts (Ex.D/1), revenue records for the year 54-55 (Ex.D/2), Map No.2 Vasuli for the year 1955-56 (Ex.D/3), Naksha No.1 for the year 1963-64 (Ex.D/4), deposition of Sheikh Daud @ Daddu recorded in Civil Appeal No 79-A/1972 (Ex. D/5), statement of Mohammad Ai recorded in Civil Suit No. 79-A/1972 (Ex. D/6), order passed by the High Court of MP in SA No. 313/77 (Ex. D/7), judgment and decree dated 23-7-1973 passed by the Civil Judge, Class-1, Bilaspur (Ex. D/8), judgment and decree dated 26-2-1977 passed in Civil Appeal No. 33-A/1974 (Ex. D/9) and the order dated 6-3-1993 passed by the Tahsildar (Ex. D/10).

15. Learned trial court after appreciation of the evidence, material on record has recorded a finding that the plaintiff is unable to prove issue No.1, 6 to 9 in negative against the plaintiff. Learned trial court while deciding issue No. 2 has recorded a finding that the plaintiff is unable to prove the fact that the suit property was purchased by his father in the name of Mohammad Sharif and while deciding issue No.3, the trial court has recorded a finding that Mohammad Sharif was the owner of the suit property. While deciding issue No.5 whether present suit is not maintainable because of res judicata of civil suit No 79A/72, the learned trial court has recorded a finding that both parties have given consent that principle of res judicata is not applicable in the present facts and circumstances of the case. Learned trial court Page 12 of 42 has also recorded a finding that the application of Section 11 of CPC is the subject matter and the parties and competency of the court and finality of the judgment should exist., but in the present case, none of the facts is not available, therefore, principle of res judicata is not applicable. The operative part of the finding reads as under:-

16. Learned trial court also while deciding the issue No.4 whether the alleged decree is null and void and its effect, has recorded a finding that since the plaintiff and defendant No.2 were not parties to the case, and the second appeal has also been abated on account of non-bringing legal representatives of Mohammad Ishaq on record within time, as such the judgment and decree passed in Civil Suit No. 79A/72 is void. Learned trial court while deciding issue No.6, has also recorded a finding that the suit is not barred by limitation, but finally the suit has been dismissed by recording a finding that the plaintiff is unable to prove that the plaintiff's father Sheikh Daud @ Daddu was original purchaser of the suit property and dismissed the suit.

17. Being aggrieved by the judgment and decree passed by the learned trial court the plaintiff has preferred First Appeal before the learned District Judge Bilaspur on 19-3-2001.

18. Defendant No. 1 has filed cross objection on 18.04.2001 regarding issue No. 6 decided by learned trial Court mainly contending that the grounds which have been raised by the plaintiff for delay in filing the suit contending that at the age of 11-12 years, the plaintiff became mentally disorder but has not proved the same. It has also been contended that the learned trial Court in paragraph No. 26 has given the finding that the plaintiff has not given any evidence with regard to period of mental disorderedness, but the learned trial court has committed illegality in relying upon Ex. P/2 dated 27.08.1990 which was publication in the newspaper by treating the suit within limitation whereas in the plaint, he has pleaded cause of action March, 1990 whereas the publication was done on 27.07.1990. It has also been contended that the suit is barred by limitation as defendant has led evidence that Md. Sharif expired in the year 1995. It has also been contended that the plaintiff has not filed any suit since 1953 to 1990 i.e. for 37 years, therefore, the suit should have been treated by barred by limitation.

19. Defendant No. 2 has also filed cross objection against certain findings recorded by the trial court mainly contending that the learned trial Court should have held that Sheikh Daud has purchased the property from his own income in the name of his brother Mohammad Sharif, but the owner is Sheikh Daud. It has also been contended that the learned trial Court should have relied upon the document dated 07.02.2005 which is 30 years old. The learned trial court has also erred in also not accepting Ex. P/4 on the count that there is no pleading in this regard and would pray for setting aside the judgment and decree relying upon Ex. P/4.

20. The appellant has also filed an application under Order 41 Rule 27 C.P.C . on 06.09.2005 mainly contending that the plaintiff has first time come to know on 30.07.2005 that the defendant without Page 14 of 42 impleading appellant has moved an application for mutation which was rejected by Tahslidar despite this with the collusion of patwari defendant No. 1 has recorded his name therefore, the mutation is not binding upon the plaintiff. Since the plaintiff was not aware about this document, therefore, it could not be filed but it is necessary for proper adjudication of the case, therefore, the same be kindly taken on record. The plaintiff has also filed an application under Order 6 Rule 17 of C.P.C . on 03.05.2006 for amendment in the plaint and has prayed for adding after para 12 as para 12A mainly contending that the State Government has constructed the road and some portion of the suit land was acquired by the land acquisition officer wherein defendant No. 1 himself has declared adopted son of Sharif son of Md. Afzal and in the application submitted before the Patwari, he has described himself as adopted son of Md. Sharif and has not disclosed that the suit land has been received by oral gift from Md. Sharif which clearly establishes that the oral gift is fraud and after thought story. It has also been contended that the mutation proceeding has been conducted in violation of Rule 27 of the Mutation Rule, therefore, it is not binding upon the plaintiff. It has also been contended that this fact has been brought to the notice of the plaintiff during pendency of the appeal and these facts are necessary for adjudication of the present appeal, therefore, the same be taken on record.

21. Learned First Appellate Court in view of the cross objection submitted by the defendant No.1 has framed three questions for its determination:-

22. Learned First Appellate Court vide its judgment and decree dated 25-9-2014 has dismissed the appeal filed by the plaintiff and has allowed the cross objection of the defendant No.1 partially and held that present Civil Suit No 33-A/99 is barred by limitation. The learned First Appellate Court while deciding the question No.1 has recorded a finding that the plaintiff in his evidence has contended that he was getting treatment from various places and has also not moved any application under Section 5 of the Limitation Act, therefore, the learned trial court has committed illegally in recording the finding that the suit is within limitation. It has also been held by learned First Appellate Court that since Mohammad Sharif expired in the year 1955, the suit should have been filed within 12 years whereas the suit has been filed in the year 1990, therefore, the learned First Appellate Court has given finding on question No. 1 that the learned trial Court has committed illegality in holding that the suit is within limitation. The learned First Appellate Court while deciding question No.2 has given its finding that the learned trial court has not committed any illegality in recording a finding that on the basis of Ex. D/2 Tahirnama, the plaintiff and defendant No. 2 has no right over the suit land and affirmed the decision on this issue. The learned First Appellate Court while deciding issue No.3 has recorded its finding that Md. Sharif has right to donate the land as Md. Sharif was the owner of the suit land, thus, the trial Court has not committed and illegality in deciding issue No. 2 & 3 framed by it. The learned First Appellate Court while affirming the finding recorded by the trial Court except issue No. 6 has given its finding that the learned trial Court with regard to issue No. 4 has given finding in favour of the plaintiff but plaintiff Md. Bashir has not filed suit to declare the judgment and decree passed by the trial Court in Civil Suit No. 79A/72 as null and void, therefore, the entire decree will not be null and void in view of the finding recorded by the trial Court and decision with Page 16 of 42 regard to issue No. 4 is treated as the judgment and decree passed in Civil Suit No. 79A/72 decided on 23.08.1973 will be effect-less on plaintiff and defendant Md. Qadar. The learned First Appellate Court while setting aside the finding recorded by the trial Court with regard to issue No. 6 has dismissed the appeal filed by the plaintiff and cross objection filed by defendant No. 1 has been partly allowed by holding that the suit is barred by limitation. The judgment and decree passed by the First Appellate Court has been assailed by the plaintiff by filing this second appeal. Second Appeal has been admitted by this Court on 13.01.2015 on the substantial question of law as stated in paragraph 2 of this judgment.

23. Learned counsel for the appellant/plaintiff would submit that the learned First Appellate Court without deciding the application filed under Order 6 Rule 17 of CPC and order 41 Rule 27 of CPC has recorded a finding, therefore, the entire judgment and decree passed by the trial court deserves to be set aside. It has been further contended that both courts below have erred in holding that the suit property was orally gifted by the said Mohammad Sarif to defendant No.1, merely by observing the finding recorded in earlier suit even upon holding that the said findings were not binding upon the plaintiff and the defendant No.2 and no such other cogent evidence and material have been placed on record. It has also been contended that Tahreenama (Ex. D/4) which is alleged to have been executed by Mohammad Sharif in favour of legal representatives of Mohammad Daud @ Daddu ie., plaintiff and defendant No.2 on account of non-examination of its witnesses as per the provisions of Section 58 of the Indian Succession Act 1925 and having failed to draw presumption of its genuineness under Section 90 of the Indian Evidence Act, the trial court has recorded an illegal finding. It has also been contended that the learned First Appellate Court has erred in holding that the plaintiff's suit is barred by limitation. Learned counsel for the appellant would submit that during pendency of the first appeal, appellant/plaintiff has filed an application under Order 41 Rule Page 17 of 42 27 of CPC bringing the facts assailing the genuineness of the stand taken by the defendant, which was not decided by the First Appellate Court though in the order sheet dated 3-2-2008, it has been directed that the said application will be decided at the time of the final judgment, but the judgment does not disclose such decision upon applications filed by the plaintiff. It has been contended by learned counsel for the appellant that the First Appellate Court has committed illegality in deciding the application filed under Order 6 Rule 17 CPC and Order 41 Rule 27 of the CPC , as such vitiated the entire judgment and decree and the matter deserves to be remitted back to the trial court for deciding the application for taking documents on record. It is further submitted by learned counsel for the plaintiff that the principle of justice is that the truth should be brought before the court and effort of the Presiding Officer should be to find out the truth as laid down in AIR 2012 SC 2010, AIR 2008 SC 2139, AIR 2009 SC 354, AIR 2019 S 2631, AIR 2016 SC 3139. It is also contended that two contradictory views taken by the defendant No.1 before two different forums just to obtain the favorable relief is apparent of his malafide intent, therefore, the said applications filed by the plaintiff should have been decided by the trial court which has not been done by the trial court, therefore, it is illegal.

24. It has been further contended that as per Section 107 of the C.P.C. the appellate court has got the same power as that of the trial court and in support of his submissions he has referred to the judgment of Supreme Court in AIR 1931 PC 263, AIR 1957 SC 509, AIR 1969 SC 1349 and would submit that the plaintiff has filed an application before the First Appellate Court filing the documents from the land acquisition proceedings where the defendant No.1, his father and his aunt had filed the application for seeking compensation on account of land acquired as he is the adopted son Mohd. Sharif in 1968. This fact was not disclosed either in the earlier suit or in the present suit, therefore, it was necessary to bring it to the notice of the learned First Appellate Court and the contents of the written statement Page 18 of 42 submitted by the defendant are not true but they have committed fraud, therefore, such application for amendment should have been allowed by the First Appellate Court but it has committed illegality in deciding the said application.

25. It has also been contended that the respondent has stressed upon Section 13 of the Indian Evidence Act and Ex.D/7 and D/8 are admissible in evidence and the findings reached in the earlier suit are binding upon the plaintiff and referred to the judgment of the Hon'ble Supreme Court 1998 (3) SCC 331, AIR 1954 SC 379, AIR 1954 SC 606 holding that Section 13 of the Evidence Act is applicable. It has also been contended by learned counsel for the plaintiff that in the facts and circumstances of the instant case the provisions of Section 13 of the Evidence Act does not apply but the provisions contained under Section 44 of the Evidence Act is applicable. In support of his submissions, he referred to the judgment of the Supreme Court in the case of AIR 1983 SC 684 (para 120-133 and para

140). It has also been contended that the aforesaid cited judgment has also been referred to it by the High Court of Karnataka in AIR 2020 Kar 55 and would submit that the provisions of Section 13 of the Evidence is not applicable and only Section 44 of the Evidence Act is applicable, therefore, the judgment and decree passed in earlier suit is not binding upon the plaintiff.

26. So far as substantial question No.1 is concerned, it has been contended by the plaintiff that Ex. D/4 has not been challenged in the cross examination and the contents regarding the declaration have been deposed by Plaintiff Witness No. 1 and Defendant Witness No. 1 in the court, but the same is not disputed in the cross examination, therefore, Ex. D/4 is only the declaration of admission of the right of the legal heirs of Sheikh Daud @ Daddu which does not require to be proved by the attesting witnesses.

27. So far as substantial question of law No. 3 is concerned, it has been contended by learned counsel for the plaintiff that Plaintiff Page 19 of 42 Witness No. 1 and Defendant Witness No. 2 have categorically deposed that the plaintiff remained in possession of the suit land till 1980 and thereafter, the suit was given on rent for Rs.3,000/- per annum and later in the month of March/April it was told by the defendant that he has got his name mutated in the revenue records, thereafter the notice Ex.P/3 and reply Ex.P/4 were received in which the details of the earlier suit (Ex.D/7 and D/9) came to the knowledge of the plaintiff and then the cause of action arose, therefore, both the courts below have committed illegality in deciding the suit to be barred by limitation and he referred to the judgment of Supreme Court in AIR 2016 SC 2250 and he would submit that the appeal kindly be allowed.

28. Learned Sr. Advocate appearing for the defendant No.1 would submit that oral gift by Mohammad Sharif in favour of defendant No.1 Mohammad Saeed proved and gift has already been proved in earlier suit, copy of which has been exhibited as Ex.D/ 8 and D/9 and would submit that the plaintiff and the defendant No.2 have failed to prove existence of Ex.D/4 from oral/documentary evidence that Ex.D/4 is suspicion one and he would submit that oral evidence is silent on the admission of sign of Mohammad Sharif on Ex.D/4 and Ex.D/4 has not been proved. He would further submit that recital of Ex.D/4 seems to be a will, as per Mohammadan Law will is not required in writing but in the Eh. D/4 sign of testator has to be proved. He would further submit that the intention of the testator and capacity of testator to be proved but no such evidence has been placed on record. It has also been contended that intention of testator is not from pleadings/oral/documentary evidence. Thus, Eh. D/4 has not been proved. This finding recorded by the trial court is legal and justified. He would further submit that on the issue of Eh.D/4, earlier suit was filed a copy of which the judgment and decree Ex. D/7 to D/9, therefore, it is binding upon the parties and to substantiate his submission, he would refer to the judgment passed by the Hon'ble Supreme Court in case of Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah , 1998 (3) SCC 331 and would refer to para 8 and 9 of the judgment.

He would further submit that the statement in the judgment and decree are admissible under Section 13 of the Evidence Act and to substantiate his submission, he would draw attention of this court to the judgment of Supreme Court in the case of Collector of Gorakhpur vs. Ram Sundar Mal , reported in AIR 1934 PC 157 and would also draw attention of this court towards the judgment of Supreme Court, Law of Evidence 19th Edition by Woodroffs and Amir Ali, and would refer to the judgment of AIR 1937 PC 69, Maharaja Sir Kesho Prasad Singh vs. Bahurin Musammat Bhagjogna Juer . He would submit that as per Section 13 of the Evidence Act, a judgment not inter parties is admissible in evidence under Section 13 of the evidence as evdience of an assertion of a right to property in dispute and judgment rendered by the appellant in earlier suit is admissible and could be relied upon by the defendant No.1 and in the subsequent suit filed by the plaintiff for grant of permanent injunction against the respondent No.1 in respect of some land even though the plaintiff and respondents have not been made party to the earlier suit and would vehemently argue on the judgment rendered by Hon'ble Supreme Court in Tirupati Tirumala Devasthanams (supra) which has been decided by three judges of Hon'ble Supreme Court and in State of Bihar vs Radha Krishna Singh (1983) 3 SCC 118 (3J), therefore, the judgment rendered by the plaintiff is not binding in nature and he would also draw attention of this court towards the judgment of Hon'ble Supreme Court in the case of Daular Ram and another vs. Keshav Smarak Samiti and another, reported in SCC Online Del 4472, further, in the case of Raman Pillai Krishna Pillai vs. Kumaran Parameshwaran, AIR 2002 Ker 133 and in the case of Andhra Pradesh Waqf Board vs Syedm Jalaluddin Sha reported in AIR 2005 AP 54. He would also also draw attention of this court towards Law of Precedents in the case of National Insurance Co. Ltd., vs Pranay Sethi reported in (2017) 16 SCC 680 and would submit that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam Page 21 of 42 rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision of judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. Therefore, he would submit that since the judgment passed by Hon'ble Supreme Court, AIR 1983 SC 684, has not been taken into consideration in the judgment of Supreme Court in Tirupati Tirumala Devasthanams (supra) has same per incuriam. He would further submit that Hon'ble Supreme Court while deciding the judgment in the case of Tirupati Tirumala Devasthanams (supra) has followed decision of Larger Bench judgment and would submit that High Court of Karnataka AIR 2020 Kar. 55 has held that in Tirumala Tirupati Devasthanam 's case, the larger Bench judgment of the Hon'ble Supreme Court in State of Bihar 's case referred to supra, was not referred to. Under such circumstances, this court has to follow the said larger Bench judgment in State of Bihar 's case and would pray for dismissal of the appeal.

29. I have heard learned counsel for the parties and perused the record of the courts below with utmost satisfaction. Regarding Substantial Question of Law No. 1- Whether the Tehreenama dated 7-2-1955 Ex.D/4 can be negated by taking recourse to Section 58 of Indian Succession Act on account of non-examination of attesting witness No.1?

30. The learned trial Court while deciding the issue No. 2 has relied upon the stand taken by defendant No. 1 that the suit land has been given to him by Md. Sharif and as per the Mohammadan Law, oral gift Hiba is permissible, but the learned trial Court has not examined whether the ingredients which are applicable for valid Hiba have been placed on record or not.

31. To understand the concept of gift i.e. 'Hiba' this Court to examine the gift under the Mahomedan Law. Chapter XI in Mulla's Principles of Mahomedan deals with Hiba or Gift and Section 138 defines Hiba or Gift as under:-

32. As per the provisions of Mahomedan Law, there are three essential ingredients of valid Hiba namely (i) declaration of the gift by the donor i.e. to constitute a valid gift, it is necessary that donor should digest himself completely of all ownership and domain over the subject of the gift. His intention should be in express and clear words. A gift cannot be implied. It must be expressed unequivocal and intention of donor must be demonstrated by these entire relinquishment of the things given. The declaration should be free from all the impediments such as inducement, threat, coercion, dures or promise and should be made with a bonafide intention. (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee.

33. The gift 'Hiba' has come up for consideration before Hon'ble the Supreme Court in Abdul Rahim (Supra), wherein it has been at paragraphs 13, 15 to 18 & 29 as under:-

15. We may notice the definition of gift as contained in various text books: In Mulla's Principles of Mohammadan Law the `HIBA' is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Faizee in his `Outlines of Mohammedan Law' defined `Gift' in the following terms:

15. We may notice the definition of gift as contained in various text books: In Mulla's Principles of Mohammadan Law the `HIBA' is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Faizee in his `Outlines of Mohammedan Law' defined `Gift' in the following terms:

16. Syed Ameer Ali in his `Commentary on Mohammedan Law' has amplified the definition of Hiba in the following terms:

17. In Maqbool Alam Khan vs. Mst . Khodaija & ors. [(1966) 3 SCR 479], it was held:

18. Faiz Badruddin Tyabji in his `Muslim Law - The Personal Law of Muslims in India and Pakistan' states the law thus:

29. In Md. Noorul Hoda vs. Bibi Raifunnisa & ors. [1996 (7) SCC 767], this Court held:

34. Hon'ble the Supreme Court in Rasheeda Khatoon (Dead) through Legal Representatives Vs. Ashiq Ali, S/o Lieutenant Page 26 of 42 Abu Mohd. (Dead) through Legal Representatives1, has held at paragraphs 17 & 20 as under:-

35. For a valid gift declaration by the donor is must. This issue has come up for consideration before Hon'ble the Supreme Court in Illahi Shamsuddin Nadaf Vs. Sou. Jaitunbi Makbul Nadaf 2, wherein it has been held at paragraph 6 as under:-

36. Hon'ble High Court of Patna in Maimuna Bibi & another Vs. Rasool Mian & others3, has held at paragraph 94 & 98 as under:-

37. Hon'ble Calcutta High Court in Akbar Ali Molla & others Vs. Sonargaon Housing Co-operative Society Ltd.4 , has held at paragraph 10 as under:-

38. From the above stated legal position, it is necessary for the defendants to prove the existence of Hiba by examining the witnesses in whose presence the donee has shown his intention to donate the suit property in favour of defendant No. 1. It is also required for the defendant No. 1 to prove by cogent evidence that after declaration of intention of donee to donate the property to defendant No. 1 and Md. Sharif has relinquished himself from entire suit property. In the present case, the defendant No. 1 has not filed any revenue record to establish that immediately after alleged Hiba, Saeed has got recorded his name in the revenue record to demonstrate that Md. Sharif has relinquished his entire interest on the suit property. The witness examined by defendant No. 1 has also not stated that on which date the deceased- Md. Sharif has given the property to defendant No. 1 through oral gift. The another ingredient for valid gift that the donee in whose presence, defendant No. 1 has accepted the Hiba has not been examined. As per the Mahomedan Law, written is of no relevancy as oral gift is validly permissible, but the ingredients for a valid gift as enumerated under the Mahomedan Law have to be proved. The evidence adduced by the defendants does not prove the basic ingredients of valid Hiba or gift. As such, the finding recorded by the learned trial Court and affirmed by the learned First Appellate Court that Md. Sharif has given the property to defendant No. 1 is a perverse finding as the judgment and decree passed in earlier suit is not binding upon the appellant. The judgment and decree of the trial Court and the Appellate Court Ex. D/8 & D/9 would clearly demonstrate that the present plaintiff was not party to the case and the learned trial Court while deciding the issue No. 5 whether in view of Civil Suit No. 79A/72, the present suit is not maintainable, is decided that the suit is maintainable. Even the learned trial Court while deciding this particular issue at paragraph 20 has given the consent that the suit is not affected by principle of res judicata.

The learned trial Court while recording such finding has held that the plaintiff and defendant No. 2 were not party to the earlier suit, therefore, for application of Section 11 of the C.P.C., the subject matter should be similar, party should be similar and declaration of title should be similar but these ingredients are not applicable in the present case, since the suit is maintainable as it does not fall within the ambit of res judicata. It is necessary to point out that this finding was never challenged by the defendant No. 1 by filing cross objection before the First Appellate Court as in the First Appellate Court, they have taken stand that the suit is barred by limitation.

(Emphasis supplied)

39. The finding rendered by the learned trial Court is in conformity with the law laid down by Hon'ble the Supreme Court in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & others 5, wherein it has been held at paragraph 18 as under:-

Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava5 discussed the plea of res judicata and the particulars that would be required to prove the plea. The court held that it is (2004) 1 SCC 551. necessary to refer to the copies of the pleadings, issues and the judgment of the 'former suit' while adjudicating on the plea of res judicata:

(emphasis supplied)

40. Again Hon'ble the Supreme in Jamia Masjid Vs. Sri. K.V. Rudrappa (Since Dead) by Legal Representatives & others 6, it has held at paragraph 18 & 19 as under:-

(ii) The matter must be heard and finally decided by the Court in the former suit;

(iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title; and

(iv) The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised.

19. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa (dead) by L.Rs 14, Justice S Murtaza Ali speaking for a Bench of two judges observed that before a plea of res judicata can be given effect, the following conditions must be proved:

The Court noted that "the best method" to decide the question of res judicata is first to determine the case of the parties as they are put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. In that case, it was held that the judgment in the previous suit was confined to two points:

Consequently, it was held that the Trial court had not decided upon either the public character of the mosque or the mode and manner or the effect of the dedication of the site for the purpose of the mosque or the graveyard."

41. Therefore, so far as legal provision is concerned, it is not disputed that the judgment decided by larger bench will be binding effect. Law with regard to binding effect of larger Bench has come up for consideration before the Hon'ble Supreme Court in the case of Trimurthi Fragrances (P) Ltd., through its Page 32 of 42 Director Shri Pradeep Kumar Agrawal Vs. Government of N.C.T. of Delhi , through its Principal Secretary (Finance) and others7 wherein, the Hon'ble Supreme Court has held at paragraph 27, 28 & 29 as under:-

28. The conclusion (1) is that a decision delivered by a Bench of largest strength is binding on any subsequent Bench of lesser or coequal strength. It is the strength of the Bench and not number of Judges who have taken a particular view which is said to be relevant. However, conclusion (2) makes it absolutely clear that a Bench of lesser quorum cannot disagree or dissent from the view of law taken by a Bench of larger quorum. Quorum means the bench strength which was hearing the matter.

29. Thus, it has been rightly concluded that the numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment."

42. While considering the facts of the present case, it is quite vivid that defendant No. 1 has given consent that the suit is not barred by res judicata, which was never subject to challenge even in the second appeal also, therefore, the defendant No. 1 cannot somersault and now take entire different stand. On the above background, substantial question of law, deserves to be answered in favour of the appellant by recording a finding that in view of Section 58 of the Indian Succession Act, the learned Courts below have erred in negative the Tahirnama as Section 58 clearly provides that the provisions of Chapter 6 of Succession Act i.e. testamentary succession so far as Mohammadan is concerned, the same will not be governed by the provisions of this Chapter. Section 58 of the Indian Succession Act is extracted below:-

Regarding Substantial Question of Law No. 2- Whether the omission to decide the applications filed under Order 6 Rule 17 of CPC and Order 41 Rule 27 of CPC has vitiated the entire judgment and decree?

43. The question as to how the application filed under Order 41 Rule 27 of the C.P.C . in the appeal should be decided by the Appellate Court remains no more res integra and stands concluded by Hon'ble the Supreme Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs.8 , wherein Hon'ble the Supreme Court has held at paragraph 13 to 17 as under:-

14. It is plain that under clause (b) of sub rule (1) of Rule 27 Order 41 C.P.C ., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors.. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows:

15. Again in K. Venkataramiah Vs. A. Seetharama Reddy & Ors. (AIR 1963 SC 1526) a Constitution Bench of this Court while reiterating the afore- noted observations in Parsotim 's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be Page 36 of 42 considered by the Court at the time of hearing of the appeal on merits.

16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C . (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C . postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. (AIR 1957 SC

363) which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166].

17. These are the broad principles to be kept in view while dealing with applications under Order 41 Rule 27 and Order 6 Rule 17 C.P.C . "

45. Hon'ble the Supreme Court in Corporation of Madras & another Vs. M. Parthasarathy & others 10 has held at paragraph 11 to 15 as under:-

46. Hon'ble Supreme Court in the case of Sanjay Kumar Singh vs. The State of Jharkhand (Civil Appeal No 1760 of 2022 decided on 10-3-2022) in para 4 has held as under.

47. Now so far as amendment is concerned, the appellant has moved an application to plead certain facts which were not within his knowledge, but from the records, it is evident that defendant No. 4 to 11 have taken additional pleadings wherein they have made certain pleadings with regard to dubious conduct of defendant No. 1, but the trial Court has not framed Page 39 of 42 any issues as such, when the plaintiff has again moved an application for amendment, the learned First Appellate Court should have decided the same, but has committed illegality in not deciding the application for amendment as well. Hon'ble Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another 11 in paras 19 and 20 has examined power of the Court to consider the amendment in the pleading and has held as under.

20. Again in T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors. , (2004) 3 SCC 392, this Court observed as follows:

48. As such, the substantial question of law is answered in favour of the plaintiff by directing that the additional document under Order 47 Rule 27 of C.P.C . and the application for amendment filed under Order 6 Rule 17 of CPC are allowed and the documents will be taken on record and the amendment is also allowed. The plaintiff will incorporate the amendment in the plaint and liberty is also granted to the defendants to file additional documents in their support and also to amend their pleadings. Regarding substantial question of law No. 3- Whether the lower appellate Court erred in holding that the plaintiff's suit is barred by time, by reversing the findings of the trial court in this regard?

49. The learned trial Court while deciding issue No. 6 has given reason that the plaintiff has mentioned cause of action in the year 1990 and also exhibited Ex. P/2 paper cutting dated 27.08.1990 and also sought declaratory relief with possession, which was not rebutted by the defendants and has given a finding that the suit is within limitation. The learned First Appellate Court while partly allowing the cross objection of defendant No. 1 has held that the suit is barred by limitation without assigning any reason, which suffers from perversity and illegality as the judgment passed by the Court should meet the requirement of recording of reasons with higher degree of satisfaction and the requirement of stating reason for judicial orders necessarily does not mean very detailed or lengthy order, but there should be some reasoning recording for declining or granting relief. In absence of any reason, the finding of the First Appellate Court that the suit is barred by limitation, is set aside. This finding of the First Appellate Court regarding suit to be barred by limitation without any reason is against the judgment passed by Hon'ble the Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Page 41 of 42 Contract and Leasing, Kota Vs. Shukla and Brothers12, has held in paragraph 18 & 19 as under:-

19. In the cases where the Courts have not recorded reasons in the judgment, legality, propriety and correctness of the orders by the Court of competent jurisdiction are challenged in absence of proper discussion. The requirement of recording reasons is applicable with greater rigor to the judicial proceedings. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the applicant. In this regard we may refer to certain judgments of this Court."

50. Considering the facts and circumstances of the case and the material placed on record, the substantial question of law No. 3 deserves to be and is answered in favour of the plaintiff.

51. Accordingly, the appeal deserves to be and is allowed in part and the judgment and decree passed by the learned trial Court, affirmed by the First Appellate Court and the cross objection filed by defendant No. 1, are set aside. The matter is remitted back to the learned trial Court to decide except issue No. 5 afresh with following directions:-

The defendants will also be given liberty to file additional document, if so advised and also liberty to file amendment application in their written statement. The documents taken on record, does not mean that this Court has examined the correctness and genuineness of the documents and it is for the trial Court to examine it and to decide it.

12 (2010) 4 SCC 785 Page 42 of 42 (2) Since this Court has given finding that the finding recorded by the trial Court regarding gift is not proved as the judgment and decree of earlier suit Ex. P/8 & P/9 is not binding upon the plaintiff. The defendants are free to prove the plea of gift afresh by recording evidence in accordance with law.

(3) Since this Court has also recorded finding that Tahrinama cannot be negatived by this Court in view of Section 58 of the Succession Act. Its affect shall be considered by the trial Court as per the evidence, material placed on record after remand of the matter.

(4) Since the matter is quite old, it is directed that the learned trial Court shall make an endeavour to complete the trial within outer limit of one and half hear from the date of first date of appearance.

(5) The parties are directed to appear before the trial Court on 2nd March, 2023.

(6) The record be sent forthwith.

(7) It is also directed to Registry of this Court, since it is old case, the record of the case, shall be preserved by scanning and along with original record, scanned record be also sent to the trial Court.

52. A decree be drawn up accordingly.

(Narendra Kumar Vyas) Judge Raju