JUDGMENT These two second appeals arise out of common judgment and separate decrees rendered in A.S.Nos.10 and 11 of 1990 on the file of the IX Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad, dated 15-10-2005, through which, the common judgment, rendered by the Court of VI Assistant Judge, City Civil Court, Hyderabad in O.S.Nos.100 and 2481 of 1984, and the corresponding decrees dated 19-12-1989; were reversed. . 2. The defendants in O.S.No.100 of 1984 are the plaintiffs in O.S.No.2481 of 1984 and the sale plaintiff in O.S.No.100 of 1984 is the defendant in O.S.No.2481 of 1984. For the sake of convenience, the parties are referred to, as arrayed in O.S.No.100 of 1984. 3. One Smt. Khaja Bee, wife of Mohd. Abdullah, purchased an extent of 665 sq. yards from one Smt. Danam Rangamma, through a sale deed dated 16-2-1952. Out of this, she is said to have alienated two small pieces, admeasuring 100 sq. yards and 122 sq. yards, to different persons, and retained 443 sq. yards. A house was constructed in the year 1964, over this land. Khaja Bee and her husband Abdullah had two sons by name, Rahamatullah and Shaik Ahmed and three daughters by name. Chand Bee, Khasim Bee (Defendants 1 and 2) and another, by name, Razia Begum. The plaintiff is the wife of Rahamatullah. The other son i.e., Shaik Ahmed died issueless, in 1970. One of the daughters, by name Razia Begum died issueless, in the year 1976. 4. The plaintiff filed O.S.No.100 of 1984 for the relief of declaration of title and consequential injunction, in respect of the suit schedule property, comprising of 6 rooms over 200 sq.yards of land in House No. 8-3-800/3/1, at Yellareddiguda, Hyderabad against the defendants. It was pleaded that after the death of Khaja Bee, her husband, Abdullah, inherited the property, and he in turn executed a gift deed dated 25-1-1973 in favour of his two sons i.e., Rahamatullah and Shaik Ahmed. According to the plaintiff Shaik Ahmed died issueless, in the year 1973, and Rahamatulla, her husband, became the exclusive donee, and that after the death of her husband, on 20-3-1982, the plaintiff inherited the said property. According to the plaintiff Shaik Ahmed died issueless, in the year 1973, and Rahamatulla, her husband, became the exclusive donee, and that after the death of her husband, on 20-3-1982, the plaintiff inherited the said property. It was pleaded that ever since the property was inherited by the plaintiff, she is in possession and enjoyment of the same, duly paying the property tax, etc., and her complaint was that the defendants were trying to interfere with her property by claiming independent rights in it. 5. The defendants filed a written statement. They admitted the relationship of the parties. It was, however, pleaded that after the death of their mother, Khaja Bee, the property was inherited by her sons and daughters, and their father Abdullah, excluded himself from inheritance. They made a reference to O.S.No.226 of 1966, filed by Khaja Bee, and stated that when she died during the pendency of the suit, her children alone came on record, and that Abdullah kept himself outside the proceedings. It is also the case of the defendants that their father could never have become absolute owner of the suit schedule property, since it was a matruka, left by their mother. Defendants raised an objection as to the genuinity and legality of the gift deed dated 25-1-1973 (Ex.A-3), and urged that, being an unregistered deed, it is unenforceable in law. 6. In addition to denying the contents of the plaint, the defendants pleaded that on 15-1-1977 the property of 443 sq. yards was divided among Rahamatulla, on the one hand, and defendants, on the other hand, and that in the said partition, dated 2-1-1977, an extent of 193.67 sq.yards fell to their share, and the remaining 249.33 sq.yards was allotted to the share of Rahamatulla. The latter, in turn, is said to have executed a sale deed dated 15-1-1977 in favour of the 2nd defendant. With these pleas, they contended that the suit is liable to be dismissed. It was urged that the entire property left by Khaja Bee was in their possession and enjoyment, and prayed for dismissal of the suit. They pleaded that, taking advantage of the order of temporary injunction, granted by the trial Court in O.S.No.100 of 1984, the plaintiff dispossessed them from the suit schedule property. 7. It was urged that the entire property left by Khaja Bee was in their possession and enjoyment, and prayed for dismissal of the suit. They pleaded that, taking advantage of the order of temporary injunction, granted by the trial Court in O.S.No.100 of 1984, the plaintiff dispossessed them from the suit schedule property. 7. The defendants filed a separate suit being O.S.No.2481 of 1984 in the same Court, for the relied of declaration, with a prayer to declare that they are the owners of an extent of 193.67 sq. yards in House No.8-3-800/3/1, and for delivery of possession thereof, by evicting the plaintiff. As an alternative, they prayed for the decree for partition of the entire extent of 443 sq. yards, left by late Khaja Bee, duly allotting half share to them, and the balance towards the share of the husband of the plaintiff. 8. The trail Court dismissed O.S.No.100 of 1984 and decreed O.S.No.2481 of 1984, holding that the defendants are the rightful owners of the property, and granted a decree for recovery of possession. A.S.Nos.1 0 and 11 of 1990 preferred by the plaintiff were allowed. Aggrieved thereby, the defendants filed SANos.570 and 571 of 1992, before this Court. The appeals were allowed through a common judgment dated 17-12-1999. Plaintiff carried the matter to the Supreme Court. The judgment dated 17-12-1999 was set aside by the Supreme Court; on the ground that substantial questions of law were not framed, and remanded the matter to this Court, for fresh consideration. On such remand, this Court rendered its judgments dated 10-7-2001, allowing the second appeals and remanding the matter to the first appellate Court. It was observed that the lower appellate Court did not consider all the issues that arose for consideration in the suits. Reliance was placed in the judgment of the Supreme Court in Madhukar v. Sangram On such remand, the lower appellate Court allowed A.S.Nos.10 and 11 of 1990 through common judgment dated 15-10-2005 and reversed the decree passed by the trial Court. Hence, these two second appeals. 9. Reliance was placed in the judgment of the Supreme Court in Madhukar v. Sangram On such remand, the lower appellate Court allowed A.S.Nos.10 and 11 of 1990 through common judgment dated 15-10-2005 and reversed the decree passed by the trial Court. Hence, these two second appeals. 9. A learned Judge of this Court admitted these second appeals on finding that the following substantial questions of law arise for consideration: (1) Whether the lower Appellate Court was justified in reversing the well considered judgment of the Trial Court without independently dealing with the oral and documentary evidence in the light of the judgments rendered by this Honourable Court on 2 occasions in the S.A.No.570/92 and SA No.571 /92 dated 17 -12-1999 and 10-7-2001? (2) Whether the lower Appellate Court has not committed substantial error of law in relying upon Ex.A-4- Gift Deed, which in fact, is a document inadmissible in evidence, in view of the ratio of the Full Bench Decision of this Honourable Court reported in 1962 (1) ALT 108 = AIR 1962 A.P. 199 (F.B.)? (3) Whether the lower Appellate Court has not committed error in rejecting and disbelieving the registered Sale Deed - Ex.B-4, when the same was neither in issue nor relates to the suit schedule property herein? (4) Whether the lower Appellate Court had not committed error in declaring title of the respondent to the suit schedule property merely on the basis of tax receipts which remained unproved? (5) Whether the lower Appellate Court was justified in disbelieving the dispossession of the appellants under the ex parte interim injunction obtained by the respondent when the said pleadings were proved by the appellants by examining D.Ws.2 and 3? 10. Sri Vilas V.Afzulpurkar, learned Senior Counsel appearing for the defendants submits that the property was purchased by Khaja Bee, and on her death, it devolved upon her legal heirs, and the question of her husband Mohd. Abdullah becoming the exclusive owner, much less his entitlement to execute a gift deed, in respect of the same; does not arise. He contends that the sole basis for the claim of the plaintiff is the so-called deed dated 25-1-1973, marked as Ex.A-3, which, is per se inadmissible in evidence, since it was not registered. He further submits that even otherwise, it was not proved in the manner prescribed under the Evidence Act. He contends that the sole basis for the claim of the plaintiff is the so-called deed dated 25-1-1973, marked as Ex.A-3, which, is per se inadmissible in evidence, since it was not registered. He further submits that even otherwise, it was not proved in the manner prescribed under the Evidence Act. Learned Senior Counsel further contends that the lower appellate Court far exceeded the scope of the appeals and proceeded to set aside the sale deed, dated 15-1-1977, marked as Ex.B-4, though it was neither at issue, nor was it the subject matter of the relief claimed in the suits. 11. Sri N. Subba Rao, learned counsel for the plaintiff, on the other hand, submits that after the death of Khaja Bee, her husband Mohd. Abdullah became the absolute owner. He contends that an oral gift is permissible, where the parties are Muslims, and mere non-registration of Ex.A-3 cannot hamper its enforceability. Learned counsel submits that the plea of partition of the property, left by Khaja Bee, or execution of Ex.B-4, by husband of the plaintiff, were not at all proved, and in that view of the matter, no exception can be taken to the decree passed by the lower appellate Court. He further contends that no substantial question of law arises for consideration in the second appeals and they are liable to be dismissed. 12. Both the learned counsel have relied upon precedents in support of their contentions. 13. The subject matter of these two second appeals is a small piece of land, but the litigation is continuing for the past twenty two years. The matter was dealt with once, by the Trial Court and Supreme Court, twice, each, by the Lower Appellate Court and this Court, it is for the third time, the matter is before this Court. 14. On the basis of the issues before it, the trial Court framed issues, touching upon the entitlement of the plaintiff for the relief of declaration and injunction. An issue, touching upon the effect of non-joinder of the children of Rahamatulla was also framed. Other two issues are not of much significance. In 0.8.No.2481 of 1984, the issues touched upon the entitlement of the defendants (plaintiff therein), for the relief of declaration and recovery of possession. An issue, touching upon the effect of non-joinder of the children of Rahamatulla was also framed. Other two issues are not of much significance. In 0.8.No.2481 of 1984, the issues touched upon the entitlement of the defendants (plaintiff therein), for the relief of declaration and recovery of possession. It is important to note that no issues were framed touching upon the alternative prayer in that suit, or upon the validity of the sale deed, EX.B-4. 15. On her behalf, the plaintiff examined P.W.s 1 to 5 and filed Exs.A-1 to A-44. Out of· them, EX.A-1 is the sale deed dated 16-2-1952, through which, Khaja Bee purchased the property, and EX.A-2, is its translation. Ex.A-3 is the unregistered gift deed dated 25-1-1973 and EX.A-4 is its translation. Exs.A-5 to A-43 are the receipts for payment of water tax, house tax etc. 16. On behalf of the defendants, D.Ws. 1 to 3 were examined and Exs.B-1 to B-13 were filed. Exs.B-2 and B-3 are the certified copies of the judgment and decree in 0.8.No.226 of 1966, in which the sons and daughters of Khaja Bee alone came on record. EX.B-4 is the sale deed, and EX.B-5 is a plan attached to it. Other documentary evidence is not much of importance. EX.X-1 is an opening form of S.B. account. After remand by this Court, the lower appellate Court framed the following points: (1) Whether the gift pleaded by the plaintiff in O.S.100/84 is true, valid and binding on all the parties and if so whether she is entitled for declaration of title and perpetual injunction prayed for? (2) Whether the regd. sale deed said to be executed by Md. Rahamatulla on 15-1-77 in favour of D-2 for an extent of 249.33 sq. yards is true, valid and binding on the parties and if so whether the 2nd defendant is entitled for the declaration of her title over the property? (3) Whether the plaintiff in 0.S.2481 /84 was dispossessed by the plaintiff in 0.S.100/84 under the guise of interim injunction obtained by her in O.S. No.100/84? (4) Whether there are any grounds which merit interference of the common judgment and decree of the trial Court? and ultimately allowed the appeals. 17. (3) Whether the plaintiff in 0.S.2481 /84 was dispossessed by the plaintiff in 0.S.100/84 under the guise of interim injunction obtained by her in O.S. No.100/84? (4) Whether there are any grounds which merit interference of the common judgment and decree of the trial Court? and ultimately allowed the appeals. 17. One aspect, which needs attention at this stage, is that the possession of the suit schedule property changed hands, almost thrice, as between the parties, as a result of acts of parties or execution of the decrees by the Courts; and the admitted position is that the property is in possession of the defendants. 18. Out of five substantial questions of law identified by this Court, while admitting the second appeal, the first one relates to the procedural aspect, and grounds No.2, 3 and 4 touch upon the substantive aspect. The 5th ground is mostly on facts, and by itself, does not bring about any change in the result; whether it is answered one way, or the other. 19. The very basis for this Court in remanding the matter to the lower appellate Court was, that the issues framed by the trial Court were not dealt with by the lower appellate Court. The following passage from the judgment of the Supreme Court in Madhukars case (1 supra) was extracted: "....First Appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court......" "...... [While reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in Second Appeal..." 20. At the outset, it becomes evident that, while in the first instance, the lower appellate Court did not deal with the various issues, in the present round, it has travelled beyond the issues and in the process had taken upon the task of examining the validity of Ex. B-3 (see point No.2). on which, neither any issue was framed nor any relief was claimed. 21. Notwithstanding this deviation, the lower appellate Court had addressed the entire area of controversy in its discussion. The complaint, if any, must be about its exceeding the scope of the appeals before it. Once it emerges that the actual controversy was dealt with elaborately, the lower appellate Court cannot be said to have committed any procedural irregularity. 22. The second substantial question is about the validity of EX.A-3. In fact, the said document constituted the sole basis for the claim of the plaintiff. Admittedly, EX.A-3 is not registered. Section 47 (sic. 49) of the Registration Act prohibits an unregistered document, which was otherwise required in law to be registered, from being received in evidence. 23. On behalf of the plaintiff, it is contended that since the parties are Muslims, the requirement under Section 123 does not apply to them, as is evident from that very provision. It is no doubt true that Section 123 does not apply, if the parties to the transaction of a gift are Muslims. It means, an oral gift can also be made. Where, however, such parties choose to execute a gift deed, it must conform to the requirement under Section 123 of the Act. Here, a fine distinction is required to be kept in mind. If the unregistered document is the one, which merely refers to a previous oral gift, it can be acted upon, notwithstanding the fact that it was not registered. On the other hand, if a gift is made through such an unregistered document itself, registration becomes compulsory. Here, a fine distinction is required to be kept in mind. If the unregistered document is the one, which merely refers to a previous oral gift, it can be acted upon, notwithstanding the fact that it was not registered. On the other hand, if a gift is made through such an unregistered document itself, registration becomes compulsory. Recently, in Mohammed Moinuddin v. Mohammed Mahmood Ali, this Court held as under: "Para 8: Instances of oral gift by a Muslim followed by written documents, are not lacking. In such cases, the document does nothing more than evidencing a previous transaction of oral gift. It does not require any registration. On the other hand, if the transaction of oral gift is found to have taken place contemporaneously with the document itself, it requires registration. Reference in this regard may be made to the judgment of this Court in Syed Fathahuddin v. Golla Shadrak, 2004 (6) ALD 562 = 2004 (6) AL T 753. Therefore much would depend on whether the document refers to the past transaction, or it is contemporaneous, with the very transaction." A judgment rendered by the Full Bench of this Court in Inspector General of Registration and Stamps v. Tayyaba Begum was also discussed. On the facts of the case before the Full Bench, it was held that the document was executed, in addition to an oral gift, with a view to avoid uncertainty and to clear doubt. Such is not the case here. 24. A perusal of EX.A-3 reveals that Mohd. Abdulla had gifted the suit schedule property to his sons through the deed itself. The translation of Ex.A-3, supplied by the plaintiff, reads as under: [In consideration of natural love and affection I have gifted the above said houses in favour of my said sons. I have also delivered the possession of the gifted house in favour of my both the sons. That in future myself my other heirs and other legal representatives may raise an objection or plea or prefer any claim, the same shall be untenable. That from today onwards my said two sons have become the absolute owners of the above said house hereby gifted …..” (emphasis supplied) 25. The deed does not leave any doubt that the so-called gift was made through it, and no reference, whatever, is made to any oral gift, anterior to it. Therefore, EX.A-3 was inadmissible in evidence. 26. That from today onwards my said two sons have become the absolute owners of the above said house hereby gifted …..” (emphasis supplied) 25. The deed does not leave any doubt that the so-called gift was made through it, and no reference, whatever, is made to any oral gift, anterior to it. Therefore, EX.A-3 was inadmissible in evidence. 26. In addition to the said serious defect, the documents suffer from other serious infirmities. Section 123 mandates that a gift deed must be attested by, at least two witnesses. The Evidence Act provides for the special procedure as to proof of documents, which are required to be attested. In the instant case, EX.A-3 was not attested by any witness, at all. Therefore, the finding of the lower appellate Court on point No.1, framed by it, upholding the validity of Ex.A-3, suffers from serious legal infirmity and it runs contrary to the provisions of Transfer of Property Act and Evidence Act. 27. Another facet that becomes relevant in this context is that, to gift the suit schedule property to his sons, Abdullah must have possessed the title. Admittedly, the property was purchased by his wife. On her death, the question of his becoming the exclusive owner does not arise. At the most, he may become one of the heirs along with his sons and daughters. It has come on record that when the Municipal Corporation of Hyderabad initiated action against Khaja Bee, for making construction of the suit schedule property, she filed O.S.No.226 of 1996 in the Court of II Assistant Judge, Hyderabad. During the pendency of that suit, she died, Her son and daughters alone came on record and her husband Addullah, did not figure as a legal representative. The plea of the defendants that Abdullah relinquished his right as legal heir of the said property becomes significant. Even if such contention is to be rejected, he could not have become the exclusive owner of the property. Therefore, it is clear that he did not possess the capacity to gift the suit schedule property, whether through EX.A-3. or otherwise. Hence, the finding recorded by the lower appellate Court, on this aspect, cannot be sustained in law. 28. Coming to ground No.3, it may be noticed that the subject matter of O.S.No.100 of 1984 was an extent of 200 sq. or otherwise. Hence, the finding recorded by the lower appellate Court, on this aspect, cannot be sustained in law. 28. Coming to ground No.3, it may be noticed that the subject matter of O.S.No.100 of 1984 was an extent of 200 sq. yards in House No.8-3-800/3/1, and the same was shown in the suit schedule. The occasion for the defendants to file O.S.No.2481 of 1984 arose, on account· of the fact that they were said to have been dispossessed from that very property on the strength of an interim order passed in O.S.No.100 of 1984, and they prayed for the relief of declaration and recovery of possession. The schedule in that suit is the same as in O.S.No.100 of 1984. the validity of EX.B-4 through which, the defendants claimed that they have purchased an extent of 249.33 sq. yards, was not canvassed by the plaintiff, either in her plaint in O.S.No.100 of 1984 or by way of any cross-objections or counter claim, in O.S.No.2481 of 1984. That is the reason why the trial Court did not frame any issue touching upon EX.B-4. The lower appellate Court, however, framed an independent point upon it, and proceeded to declare that EX.B-4 is I not proved, valid and binding upon the parties. 29. On more occasions than one, importance of framing of issues has been emphasized. Under Order XIV C.P.C, the Court is required to frame issues, only on such controversies, as it perceives between the parties. Framing an issue would enable the parties to direct their resources to it, in the form of oral and documentary evidence and would enable the Court to point its attention to it. There may be instances, where, in the absence of any specific plea and issue, the parties may have adduced evidence, duly understanding a particular facet of controversy. In such cases, if the Court is satisfied that the understanding of the parties was clear and absolute, and they, in turn, have produced all the facts before the Court, it can consider the feasibility of dealing with the particular controversy. Such course would become permissible, if only it had any bearing upon the subject matter of the suit. From the judgment of the trial Court, it is not evident that the parties have made an issue about Ex.B-4, and for that reason, it did not feel the necessity of pronouncing upon the said document. 30. Such course would become permissible, if only it had any bearing upon the subject matter of the suit. From the judgment of the trial Court, it is not evident that the parties have made an issue about Ex.B-4, and for that reason, it did not feel the necessity of pronouncing upon the said document. 30. In the matter of regulating the procedure before an appellate Court, Order 41 C.P.C. contains an important provision in the form of Rule 25. It reads as under. O.XLI R.25: Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for [within such time as may be fixed by the Appellate Court or extended by it from time to time]. 31. From this it is clear that, in case the appellate Court felt that an issue touching upon the validity of Ex.B-4, were to have been framed, the only course open to it was, to send the matter to the trial Court, duly framing such an issue. The question of framing a point, for the first time, by the appellate Court, and answering the same in such cases by itself; does not arise. 32. Even otherwise, the defendants, who filed the document, EX.B-4 have examined a witness. The lower appellate Court disbelieved the evidence of identifying witnesses, by observing as under: "The one more doubtful circumstances arising is that the identifying witnesses are no other than the husband and son of the 2nd defendant in the registered document. There is no explanation forthcoming from the defendant NO.2 on this aspect as to why an outsider has not identified the signature and thumb impression of Rahamtullah and why she did not take steps to examine third party to prove the execution". 33. There is no explanation forthcoming from the defendant NO.2 on this aspect as to why an outsider has not identified the signature and thumb impression of Rahamtullah and why she did not take steps to examine third party to prove the execution". 33. On the one hand, it did not choose to verify as to whether there existed any attestors for Ex.A-3, which is a requirement under law, but still upheld it; and on the other hand, disbelieved the evidence of identifying witnesses of Ex.B-4, which was neither in issue, nor the evidence of such witness was found to be unbelievable. Therefore, this finding of the lower appellate Court must also fail. 34. For the foregoing reasons, the second appeals are allowed and the judgment and decrees passed by the lower appellate Court in A.S.Nos.10 and 11 of 1990 are set aside. There shall be no order as to costs.