Judgement This is an appeal by the defendants against the decree of Sri M. M. Rahman, Subordinate Judge, Gauhati, dated 7th September, 1967, whereby he granted a declaration to the plaintiff Putuli Rasul of her title to the property in dispute and awarded her khas possession thereof by demolition, if necessary, of the temporary structures set up by the defendants. In addition, the plaintiff was awarded a decree for Rs. 920/- by way of mesne profits as also the costs of the suit. 2. The plaintiff Putuli Rasul had alleged in the plaint that her brother Anisur Rasul had purchased the land in dispute from Bilahi Dasva and Sabitri Dasya following an earlier mortgage by them in his favour. Anisur Rasul happened to construct some houses on the purchased land and thereafter he made a gift of the land together with the houses standing thereon in favour of the plaintiff. Out of the gifted property the plaintiff leased out the northern part of it to the defendant No. 1 Jurmati against the rental of Rs. 40/- per mensem. The defendant No. 1 paid the rent for sometime, but when the plaintiff asked her to vacate the land she (Jurmati) not only refused to do so but also stopped paying rent from January, 1951. The plaintiff thereupon served eviction notice on the defendant No, 1 calling upon her to vacate the premises by 31st July, 1951. On Jurmatis failure to do so, the plaintiff filed Title Suit No. 204 of 1951 in the Sadar Munsiffs Court at Gauhati claiming Jurmatis eviction and arrears of rent. Jurmati resisted that suit by denying that she was a tenant of the plaintiff. That suit was decreed by the Munsiff on 12th July, 1952, but that decree was set aside by the Additional District Judge, Gauhati, on 24th February, 1955. The plaintiffs appeal against the appellate decree was dismissed by the High Court on 3rd December, 1956. Thereafter the plaintiff served a fresh notice of eviction on Jurmati and having had no response she filed the suit out of which the present appeal has arisen on 10th May, 1957. The reliefs claimed were the eviction of the defendant Jurmati and her two sons, defendants Nos. 2 and 3, from the premises in dispute and for the recovery of a sum of Rs. The reliefs claimed were the eviction of the defendant Jurmati and her two sons, defendants Nos. 2 and 3, from the premises in dispute and for the recovery of a sum of Rs. 720/- as mesne profits for the period 1st January, 1953, until the date of the suit, besides Rs. 200.00 respecting the price of some demolished houses. 3. The defendants resisted the suit by denying that the land originally belonged to Bilahi Dasva and Sabitri Dasya, or that Anisur Rasul had purchased the land from them, or that Anisur Rasul had made a gift of the land to the plaintiff. They also denied that the plaintiff had leased out the land to Jurmati. If was pleaded that the suit of the plaintiff was barred both by limitation and res judicata. 4. The defendants pleaded further that one permanent structure standing on the land had been set up by Chengaram Singh, the husband of defendant No. 1 and the father of the other two defendants, though in paragraph 7 of the written statement they candidly admitted that they had "no knowledge how and when the late Chengaram came into the land." However, they alleged further in the same paragraph that Chengaram was living in the property since before he was married to the defendant No. 1, that he was then running on the premises "a carpentry of his own", and that the defendants Nos. 2 and 3 were born there, Chengaram Singh, it was stated, had died about 17 years ago and the defendants had been continuing in possession of the property since then in their capacity as its owners. 5. The trial Court settled the following issues between the parties :- (1) Whether the plaintiff has got any right and title to the suit land ? (2) Whether the plaintiff ever possessed the land ? (3) Whether the plaintiffs suit is barred U/A. 142 and 144 of the Indian limitation Act ? (4) Whether the suit is barred by the principles of res indicata ? (5) To what relief if any, the plaintiff is entitled ? By his judgment dated 20th April, 1961, the Subordinate Judge decided issues Nos. 1 to 3 against the plaintiff while issue No. 4 was decided against the defendants. In consequence of those findings the suit was dismissed but the parties were allowed to bear their own costs. 6. (5) To what relief if any, the plaintiff is entitled ? By his judgment dated 20th April, 1961, the Subordinate Judge decided issues Nos. 1 to 3 against the plaintiff while issue No. 4 was decided against the defendants. In consequence of those findings the suit was dismissed but the parties were allowed to bear their own costs. 6. The plaintiff having felt aggrieved filed an appeal against the trial Courts judgment in the High Court. A Division Bench of the High Court allowed the appeal by its judgment dated 28th April, 1966, and on setting aside the decree of the trial court remanded the suit for fresh decision on admitting a sale deed which the plaintiff wanted to bring on the record. This time the Subordinate Judge decided the first three issues in favour of the plaintiff and issue No. 4 was decided by him, as before, against the defendants with the consequence that the plaintiffs suit was decreed in the manner prayed for in the plaint. It is the defendants who have therefore now come up in appeal to this Court. 7. Sri P. Choudhury urged in this Court three points in support of the appeal. They were that the plaintiff had failed to prove any valid gift by Anisur Rasul in her favour, that in view of the decision in the first Title Suit No. 204 of 1951 the plaintiff could not legally plead that the defendants were her tenants in respect of the property in dispute, the matter being barred by the principles of res judicata, and that at any rate she having failed to prove her possession within twelve years before the institution of the suit, her suit merited dismissal. The second of the three points urged on behalf of the appellant must be discussed first because of its ranking priority. In substance, Sri Choudhury submitted that since the first appellate Court and the High Court had concurrently held in the previous suit that the plaintiff had failed to establish that she had leased the property in dispute to Jurmati, the defendant No. 1, it was no longer open to the plaintiff to re-assert that claim. In substance, Sri Choudhury submitted that since the first appellate Court and the High Court had concurrently held in the previous suit that the plaintiff had failed to establish that she had leased the property in dispute to Jurmati, the defendant No. 1, it was no longer open to the plaintiff to re-assert that claim. Sri S. M. Lahiri, who represented the plaintiff-respondent, urged on the other hand that the High Court having given a distinct finding in its remand order dated 28th February, 1966, that it was open to the trial Court to examine the evidence on the point of alleged tenancy since Section 11 of the Code of Civil Procedure did not apply in the background of the peculiar facts of the case, it was not open to the defendants-appellants to contend now that the final decision in the first suit operates as res judicata. Alternatively, Sri Lahiri contended that Section 11 of the Code has actually no applicability in the present case. I think both the points urged by Sri Lahiri are sound and so the submission made by Sri Choudhury has to be overruled. 8. In the first judgment of the trial Court, dated 20th April, 1961, it had been unequivocally held while deciding issue No. 4 that the suit is not barred by res judicata. However, the question of res judicata was reagitated by the defendants before the Division Bench of the High Court and that matter was specifically dealt with and decided by the Bench. However, the question of res judicata was reagitated by the defendants before the Division Bench of the High Court and that matter was specifically dealt with and decided by the Bench. The relevant part of the Bench decision reads : "In the present case we hold that the Munsiff was not competent to try the subsequent suit and thus the finding of the Munsiff on the issue of relationship of landlord and tenant between the parties cannot be said to be binding on this Court." The High Court observed further : "In our opinion thus it was open to the Court below to examine the evidence on this point and come to its own conclusion as to whether there was relationship of landlord and tenant between the parties and whether the defendants possession can be said to be permissive or not." In face of these findings of the High Court, which were not challenged before the Supreme Court and so have by now assumed finality, it is not open to the defendants to urge that the decision given in the first suit that the plaintiff had failed to establish tenancy operates as res judicata. 9. Assuming for the moment that the matter is still open for debate, I have no misgivings that the plea of res judicata cannot prevail in the circumstances of the case. It was not denied by Sri Choudhury that the jurisdictional value of the suit out of which the present appeal has arisen being Rupees 8,920/- the Munsiff who tried the Title Suit No. 204 of 1951 had no jurisdiction to try it, his jurisdiction being limited to suits of value not exceeding Rupees 5,000/-. Therefore Section 11, Civil P.C. would not apply in terms for it is specifically mentioned in that Section that the decision in the previous suit shall operate as res judicata only if that decision had been given by a Court competent to try the subsequent suit. Sri Choudhury however urged on the authority of the decisions in AIR 1953 SC 33 , Raj Lakshmi Dasi v. Banamali Sen, and AIR 1960 SC 941 (942). Satyadhyan v. Smt. Deorajin Debi, that the dispute about tenancy is shut out by the general principles of res judicata. Sri Choudhury however urged on the authority of the decisions in AIR 1953 SC 33 , Raj Lakshmi Dasi v. Banamali Sen, and AIR 1960 SC 941 (942). Satyadhyan v. Smt. Deorajin Debi, that the dispute about tenancy is shut out by the general principles of res judicata. Sri Lahiri maintained that these two decisions of the Supreme Court have no relevancy to the facts of the case in hand, that in case of suits the rule of res judicata is entirely governed by Section 11 of the Code, and that since the Munsiff who decided the first suit was admittedly not competent to try the second suit, the plea of res judicata is not available to the defendants. In support of his submissions Sri Lahiri placed reliance on the decision of the Supreme Court reported in AIR 1962 SC 633 , Janakirama Iyer v. Nilakanta Iyer. 10. The parties counsel were not at issue on the point that Section 11 of the Code is not exhaustive of the general doctrine of res judicata or of the circumstances in which a matter may be res judicata. Therefore, it can be safely assumed that in circumstances other than those provided for in this Section the principle underlying the rule of res judicata may be invoked in a proper case without taking recourse to Section 11. However the question for decision in the present case is whether the general principles of res judicata can be invoked when the case clearly falls within the ambit of Section 11 of the Code. I have no doubt that the reply to the question posed must be in the negative if only because Section 11 would otherwise become otiose and that would clearly tantamount to an affront to the legislative injunction. The principle of res judicata is based on the manifest need of giving a finality to the judicial decisions. What it means, tersely put, is that when once a res is judicata, it shall not be adjudged again. However, when the legislature has in its wisdom adopted the principle of res judicata as a part of a statute framed by it and has prescribed certain conditions for its applicability, the Courts will have no option but to insist on the existence of those conditions before a litigant can be permitted to claim that a given res is actually judicata and so cannot be re-opened. This is exactly what Sri Lahiri claimed. 11. Section 11 of the Code states, shorn of Six Explanations appended to it, that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. One of the essential conditions of the applicability of Section 11, it is apparent, is that the Court which decided the first suit should be competent to try the subsequent suit in which the matter already decided is raised. Therefore, unless that condition is satisfied the benefit of Section 11 cannot be availed of. The matter appears to be concluded by the Supreme Court decision in the case of Janakiram. AIR 1962 SC 633 (supra). In that case it being not in dispute that the parties in the first suit were different from those in the second, it was conceded that Section 11 of the Code did not apply in terms. Nevertheless, it was urged that the decision in the first suit was decisive on the general grounds of res judicata. Repelling the contention, the Supreme Court held that since the parties to the two suits are not identical. Section 11 is clearly inapplicable and so it would not be permissible to rely upon the general doctrine of res judicata and added that since it was "dealing with a suit and the only ground on which res judicata can be a rule against such a suit can be the provisions of Section 11 and no other". On that footing the Supreme Court brushed aside the contention that the second suit was barred by res judicata. Nothing said in the two decisions of the Supreme Court relied upon by Sri Choudhury militates against the decision in Janakirams case. It was clearly stated in Satyadhyans case, AIR 1960 SC 941 that the principle of res judicata is embodied in relation to suits in Section 11 of the Code. Nothing said in the two decisions of the Supreme Court relied upon by Sri Choudhury militates against the decision in Janakirams case. It was clearly stated in Satyadhyans case, AIR 1960 SC 941 that the principle of res judicata is embodied in relation to suits in Section 11 of the Code. True, it was stated further that even where Section 11 does not apply in terms, the principle of res judicata is applied by the Courts for the purpose of achieving finality in litigation. As stated above, in the present case the plea of res judicata is raised in a suit which was filed subsequent to another suit in which the question of tenancy raised by the plaintiff had been negatived. Therefore, it follows that the present case would be governed by the statutory provisions enacted in Section 11 of the Code and not by the general principle of res judicata. It may be re-emphasised that though it is settled beyond controversy that the principles of res judicata can be applied to cases which do not fall within the four corners of Section 11, it is equally well settled that where a case does fall within its scope, the conditions laid down therein must be strictly complied with and that if they are not, it is not permissible to hold that the matter is res judicata on the general principles as that course would render Section 11 nugatory. In other words, Section 11 prescribes the conditions under which the decision in a suit can be res judicata and where the decision fails to satisfy those conditions, it cannot be held to be res judicata on general principles. Hence when the prior suit was tried by a Court not competent to entertain the second suit, its decision cannot operate as res judicata on general principles. It can bear repetition to state that the Munsiff who decided the first suit was not competent to entertain the second suit out of which the present appeal has arisen. As such, the decision given in that first suit cannot operate as res judicata in the present suit. I would, therefore, hold in agreement with the trial Court that issue No. 4 must be decided against the defendants. 12. As such, the decision given in that first suit cannot operate as res judicata in the present suit. I would, therefore, hold in agreement with the trial Court that issue No. 4 must be decided against the defendants. 12. The consequence of the finding just recorded is that the plaintiff is at liberty to contend that she has proved the alleged tenancy between her and the defendant No. 1. Therefore, I proceed to examine the available data to determine if Sri Rahman was justified in holding that the plaintiff has proved the tenancy pleaded by her. 13. The plaintiff was examined on commission. She deposed that she was put in possession of the property gifted to her by Anisur Rasul that one Ramswarup was then in possession of the gifted property, and that that Ramswarup net only attorned to her but paid her rent for a period of 1½ years that he remained in possession of the property after the gift. She testified further that after Ramswarup vacated the property she let it out to one Lalua who paid rent to her and that it was after Lalua that she leased the property to Jurmati on monthly rental of Rs. 20/-which was subsequently raised to Rs. 40. Putuli Rasul also affirmed that Jurmati used to pay rent to her and that her elder brother Ikram Rasul (now dead) used to issue receipts to Jurmati on her behalf and occasionally she herself would give receipts to Jurmati. The averments of Putuli Rasul that Ramswarup had attorned to her, that Lalua was a tenant after Ramswarup had vacated the property, and that last of all she had let out the property to Jurmati who used to pay rent to her were not challenged in her cross-examination. Therefore, there is no apparent reason why Putuli Rasul should not be taken at her word. P. W. 2 Ganesh Chandra Sen runs a mill since 1932 on land contiguous to the property in dispute. He testified that Lalua had run a flour mill on the land in dispute for nearly 3/4 years and that, after Lalua had vacated the property, the defendant Jurmati occupied the same. In cross-examination he affirmed that Jurmati occupied the disputed property about 15/16 years ago. Since the witness was examined on 14-11-1960. his last statement would mean that Jurmati entered upon the property sometime in 1944-45. In cross-examination he affirmed that Jurmati occupied the disputed property about 15/16 years ago. Since the witness was examined on 14-11-1960. his last statement would mean that Jurmati entered upon the property sometime in 1944-45. This Ganesh Chandra Sen is an altogether disinterested person besides being a man of status, and so his statement, which remained unshaken during the cross-examination, has to be taken at face value. P. W. 3 Tajul Islam deposed that about 25 years ago one Ramswarup was running a liquor shop on the land in dispute. His statement lends corroboration to Putuli Rasuls testimony that Ramswarup was in occupation of the property when her brother gifted the same to her. It may appropriately be mentioned that the statement of the witness about the occupation of the property by Ramswarup remained unchallenged. 14. Baliram Bharali P. W. 4 is an office Assistant in the University. During the period 1943-1951 he used to live in Tokobari, Gauhati, where the property in dispute is situated. The witness deposed that the property in dispute belongs to the plaintiff, that the defendants are in occupation of it as tenants under the plaintiff against the rent of Rs. 40/- per mensem, and that occasionally he used to collect rents from the defendants on behalf of the plaintiff during the period 1946-1951. The witness affirmed, while explaining what occasion there was for him to collect the rent on behalf of the plaintiff, that Ikbal Rasul, a nephew of the plaintiff, was his class-mate, that he used to visit the house of the plaintiff frequently on that account, and that he also worked as a private tutor of a sister of Ikbal Rasul. These averments of the witness were not challenged in cross-examination and as such there is nothing unnatural for Putuli Rasul to request the witness to collect the rent on her behalf from the defendants. 15. Next we have the statement of Izazul Rasul, son of Ikram Rasul, a deceased brother of the plaintiff. The plaintiff, it may be mentioned, is a spinster and so she has been living with her brothers all along. The witness produced the counterfoils Exts. 15 (1) to 15 (6) which ex-facie show that Jurmati had been paying rent in respect of "Token bari land and houses" for a long time. These receipts appertain to the year 1943. The plaintiff, it may be mentioned, is a spinster and so she has been living with her brothers all along. The witness produced the counterfoils Exts. 15 (1) to 15 (6) which ex-facie show that Jurmati had been paying rent in respect of "Token bari land and houses" for a long time. These receipts appertain to the year 1943. Izazul Rasul stated on solemn affirmation that these receipts are in the handwriting of his father, that Jurmati never occupied any property at Tokobari belonging to his father, and that these receipts show payment of rent by Jurmati in respect of house and land at Tokobari. The witness stated further that three receipts Exts. 15 (4) to 15 (6) bear the signatures of his father and that P. W. Baliram Bharali used to collect rent from the defendant occasionally on behalf of the plaintiff. The plaintiff being an unmarried lady it was not abnormal that her elder brother Ikaram Rasul with whom she was putting up should look after her property and issue receipts to the tenants on getting rent from the latter. 16. The oral and documentary evidence reproduced above is quite dependable and of considerable value, in fact formidable. It gathers corroboration from the certified copies Ex. 8 (1) to Ex. 8 (3) from the Assessment Register of the Gauhati Municipal Board which show that the property in dispute is ownership of Anisur Rasul and that Punaram Singh, the defendant No. 3, is in possession of the same as a tenant. 17. Exts. 9(1) to 9(107) are Municipal receipts right from 1941-42 to date showing the payment of Municipal taxes respecting the property in dispute by and on behalf of Anisur Rasul, the original owner of the property. The gift by Anisur Rasul is said to have been made in favour of the plaintiff sometime in 1945, but the mutation in favour of the plaintiff was effected as late as 3rd of December, 1947, vide copy Ex. 6 of the relevant order. It appears that since Anisur Rasul had died soon after making the gift and there was no natural heir of the donor to contest the validity of tine gift made by him in favour of the plaintiff, the latter did not bother much about getting the land mutated in her name either in the revenue records or in the Municipal Registers. However, since we have the sworn testimony of Putuli Rasul that her brothers and sisters never claimed the property in dispute as also the statement of Izazul Rasul that the plaintiff had been putting up with them and her lands were managed by her brothers, nothing turns on the fact that the property continued to be shown in the name of Anisur Rasul in the records mentioned even after his demise. 18. On behalf of the defendants we have the statement of Punaram Singh, defendant No. 3, alone apart from certain documents placed on the record, in support of their defence. In paragraph 7 of the written statement the defendants had candidly admitted that they had no knowledge how and when Chengaram had entered upon the suit property. In his examination-in-chief though Punaram Singh happened to affirm that the property belonged to his father and that they had inherited the property from him, in his cross-examination he was frank in admitting that he could not detail how his father had got the land and that that fact was also not known to his mother. He could not deny that the patta of the land firstly stood in the name of Anisur Rasul and that now it stands in the name of the plaintiff. The defendant No. 1 Jurmati, it has to be emphasised, avoided the witness box. That circumstance cannot be lightly ignored. It is for the reason that according to the plaintiffs unequivocal case she had let out the property to Jurmati and not to her husband Chengaram. Therefore, it was proper for Jurmati to enter the witness box and take the Court into confidence about the true state of affairs. It will be noticed that according to the allegations of the defendants the premises in dispute was in the first instance occupied by Jurmati along with her husband and that the defendants Nos. 2 and 3 were subsequently born to the couple during the course of their residence in the same premises. In the context of those pleadings it was Jurmati and not her son Punaram Singh who knew the facts best. It is, therefore, legitimate to raise a presumption that Jurmati has deliberately withheld herself from the witness box to avoid some vexing questions in cross-examination. 19. The defendants placed on the record the document marked Ex. In the context of those pleadings it was Jurmati and not her son Punaram Singh who knew the facts best. It is, therefore, legitimate to raise a presumption that Jurmati has deliberately withheld herself from the witness box to avoid some vexing questions in cross-examination. 19. The defendants placed on the record the document marked Ex. A which shows that the application dated 3-4-1951 of Punaram Singh for permission to construct a house in Tokibari area on the Assam Trunk Road was allowed. However, a copy of the plan which was sanctioned was not placed on the record. Therefore, it is not possible to determine to what property the document Ex. A pertains. The defendants also produced certain receipts (Ex. B Series) showing payment of Municipal taxes. Sri Lahiri submitted that taxes which defendants paid relate to some thatched houses constructed by them on the land in dispute. Sri Lahiri also brought to the notice of this Court a large number of receipts which had been issued by the Municipal Board in favour of Anisur Rasul on payment of taxes respecting the property in dispute. Those taxes are much higher as compared to taxes entered in the receipts Ex. B series. Therefore, there appears to be substance in the contention of Sri Lahiri that the defendants pay taxes respecting the thatched houses constructed by them on the land while Anisur Rasul, or someone on his behalf, have been paying taxes in respect of the rest of the property in dispute. Therefore the Municipal receipts produced by the defendants do not nullify the claim of the plaintiff that Municipal taxes had been paid by her or her predecessor for the property in dispute. 20. The oral and documentary evidence discussed above leaves no room for doubt on the point that Jurmati had entered upon the property as a tenant under the plaintiff and that she had been paying rent to the plaintiff for a sufficiently long time. If the defendant Jurmati had entered upon the property as a tenant of the plaintiff and had thereafter given birth to two sons, who are defendants Nos. 2 and 3, the latter did not acquire any independent status to occupy the property. Their claim that the property belonged to their father and it had been inherited by them is palpably false. 2 and 3, the latter did not acquire any independent status to occupy the property. Their claim that the property belonged to their father and it had been inherited by them is palpably false. In the result, I affirm the finding of the trial Court that Jurmati bad entered upon the property as a tenant of the plaintiff. 21. This takes us to the consideration of the next point urged by Sri Choudhury, namely, that the plaintiffs suit is barred by time. This contention is altogether unsustainable. Section 116 of the Evidence Act states inter alia that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. The Privy Council held in the case of Bilas Kunwar v. Desraj Ranjit Singh. AIR 1915 PC 96, that "A tenant who has been let into possession cannot deny the landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord". This view of the Privy Council was cited with approval by the Supreme Court in the case of Veerraju v. Venkanna, AIR 1966 SC 629 . It is obvious that the defendant Jurmati cannot be permitted to deny the title of the plaintiff to the property in dispute because she is proved to have entered upon the property in her capacity as a tenant under the plaintiff and she has not yet surrendered possession to the latter. Therefore the status of that defendant is analogous to that of a tenant holding over. As such, the suit of the plaintiff cannot be said to be barred by time. 22. We have the unchallenged statement of the plaintiff that Jurmati had been paying rent to her for a long time after the property had been let out to her. Sri Choudhury conceded during the course of his reply to the arguments of Sri Lahiri that the plaintiff can claim estoppel against the defendants if they are proved to be tenants. I have held above that the defendant No. 1 had entered upon the property as a tenant of the plaintiff. Sri Choudhury conceded during the course of his reply to the arguments of Sri Lahiri that the plaintiff can claim estoppel against the defendants if they are proved to be tenants. I have held above that the defendant No. 1 had entered upon the property as a tenant of the plaintiff. Therefore the defendant No. 1 is estopped from denying the title of the plaintiff and if she cannot deny the plaintiffs title, the plea of limitation vanishes in the thin air. The defendants Nos. 2 and 3 can claim no better status than their own mother. I would therefore hold that the suit is not barred by time. The plea of adverse possession adopted in the written statement was not pressed by Sri Choudhury in this Court. 23. I am now left only to examine whether the plaintiff has proved the alleged gift by Anisur Rasul in her favour. It was not denied that on 3rd December, 1947, the name of Anisur Rasul was substituted by that of the plaintiff in her capacity as a donee from him. Sri Choudhury did not contend that Anisur Rasul never meant to make a gift of the property in dispute in favour of the plaintiff. His contention however was that the gift lacked validity inasmuch as the plaintiff had not been delivered possession by the donor in his own lifetime. It was held in the case of Kairun Bi v. Mariam Bi, AIR 1960 Mad 447 , that the question whether possession had been delivered is relevant only when an issue is raised between the donor or those claiming under him on one side and the donee and those claiming under him on the other and that a stranger cannot invoke the rule that the gift is bad because there was no delivery of possession. Sri Choudhury did not challenge the correctness of the view expressed by the Madras High Court. However, he tried to make a distinction between the facts of the Madras case and the case in hand on the basis that in the Madras case the donor and the donee stood by the gift, but in our case the donor had died when the present dispute between the plaintiff and the defendants arose. I have not been able to appreciate this argument of Sri Choudhury. I have not been able to appreciate this argument of Sri Choudhury. We have the statement of the plaintiff herself, which is reinforced by that of her nephew Izazul Rasul, that none of the heirs of Anisur Rasul had challenged the gift made in her favour. Therefore, as at present, the challenge to the gift has come from a stranger, namely, the defendants, who are in no way connected with the family of the donor or that of the donee. Therefore, they are not entitled to challenge the validity of the gift on the score that the donee had not been put into possession of the gifted property by the donor. 24. Assuming that the gift lacks validity, the plaintiff in my opinion is entitled to seek the eviction of the defendants on the short ground that the defendant No. 1 had been inducted into the property as a tenant by the plaintiff herself and until the defendant No. 1 surrenders the possession to the plaintiff, she is estopped from repudiating the plaintiffs title to the property. Further, if we assume for a while that the property was in the ownership of Anisur Rasul at the time of his death, then it would be inherited by his brothers and sisters including the plaintiff as he himself died a bachelor, and there being no evidence that the other brothers and sisters of plaintiff Putuli Rasul had laid claim to the property in dispute, the plaintiff can legitimately contend that she is the full owner of the property after the death of Anisur Rasul, the latters other heirs having relinquished their claim in her favour. 25. In view of the conclusions reached above, I hold that this appeal is without merit and so I dismiss the same with costs. Appeal dismissed.