JUDGMENT D.V. Shylendra Kumar, J.— The above three appeals arise out of the common judgment dated 28.10.1988 rendered in common in Regular Appeal Nos. 47/87, 42/87, 43/87 and 44/87 on the file of the Court of the Principal Civil Judge, Belgaum. 2. By the common judgment the Lower Appellate Court has dismissed all the four appeals and apart from these three second appeals, one more second appeal-RSA No. 90/89 had also been filed before this Court. However, it is a common ground of the parties in these appeals that RSA 90/89 had come to be dismissed as having been abated and judgment and decree passed by the trial Court in favour of the plaintiff in the suit has also been executed and nothing survives in that second appeal. 3. The origin of all the three appeals can be traced as under: All these second appeals arise out of the Judgment rendered in common by the court of the Principal Munsiff, Belgaum at Belgaum in respect of OS No. 369 of 1980, OS No. 378 of 1980, OS No. 380 of 1980 and OS No. 381 of 1980. While OS No. 369 of 1980, OS No. 378 of 1980 and OS No. 381 of 1980 were suits filed by common plaintiffs and the first plaintiff being brother of the respective defendants in the three suits, seeking for recovery of possession of portions of the properties said to be in the possession of the defendants in the house property bearing CTS No. 2779 in Tenginkeri Galli of Belgaum City, the other suit in OS No. 380 of 1980 was a suit filed by the defendant in OS No. 381 of 1980 and claiming for his 7/64th share in CTS No. 2779 parts of which property are subject matter in the three other suits. The suit for recovery of possession filed by the common plaintiffs was on the premise that the suit property CTS No. 2779 was in their ownership and possession having been gifted by the other defendants -parties to the suit etc.,. The trial court in terms of the common Judgment while decreed the suit for recovery of possession, dismissed the suit for a share in the property filed by one Rafique Ahmed holding that said Rafique Ahmed having gifted his share in the property in favour of the defendants, has no right to claim share in the property thereafter. The trial court in terms of the common Judgment while decreed the suit for recovery of possession, dismissed the suit for a share in the property filed by one Rafique Ahmed holding that said Rafique Ahmed having gifted his share in the property in favour of the defendants, has no right to claim share in the property thereafter. The plaintiff in the suit for share in the property, while filed an appeal against that Judgment and decree, he along with other two brothers preferred separate appeals against the Judgments and decrees they had suffered for yielding possession. All these four appeals RA No. 41 of 1987, RA No. 42 of 1987, RA No. 43 of 1987 and RA No. 44 of 1987 were heard together and disposed of by a common Judgment by the court of the Principal Civil Judge, Belgaum at Belgaum and in turn four second appeals had come to be filed before this Court. RSA No. 90 of 1989 arising out of RA No. 41 of 1987 and OS No. 378 of 1980 has been subsequently dismissed as having abated as the appellant had died and no further steps had been taken. While the other three appeals, namely, RSA No. 82 of 1989 arising out of RA No. 42 of 1987 and in turn OS No. 369 of 1980, RSA No. 83 of 1989 arising out of RA No. 43 of 1987 and in turn OS No. 381 of 1980, RSA No. 89 of 1989 arising out of RA No. 44 of 1987 and in turn OS No. 380 of 1980, had all been allowed by the common Judgment rendered by this Court. The aggrieved respondents in these appeals had carried the matter to the Supreme Court and the Supreme Court in terms of its Judgment rendered in common in Civil Appeal Nos. 4434 of 1999, 4435 of 1999 and 4436 of 1999 dated 2.2.2005, has allowed all the appeals and remanded the second appeals to this Court holding that the Judgment of the High Court rendered in common in the three appeals are not sustainable for the reason that the appeals have been allowed without framing substantial questions of law. The background to the above appeals is noticed in the order dated 22.2.2008 passed by this Court cited supra when these appeals had been taken up for hearing. 4. The background to the above appeals is noticed in the order dated 22.2.2008 passed by this Court cited supra when these appeals had been taken up for hearing. 4. The appeals were remanded from the Supreme court for the precise reason that the substantial question of law had not been framed at the admission as required under Section 100 CPC. 5. The appeals, in fact, had been disposed of by this Court by a short order as under: In the final decree proceedings the court shall take into consideration the correct share of the parties, fix that correct share and allot the property insofar as it is possible. The property being only one property, the same shall be sold in public auction and the proceeds should be divided between the parties in accordance with their shares. However, in further equity, if the property is to be sold, Wali Ahmed who has been in enjoyment of the property all along, shall be given first preference to opt the property at the market rate and on after him the other legal heirs who opt for sale may be given a chance otherwise exercising its own discretion the Appellate Court can pass a final decree in accordance with law. Subject to the above direction, all the second appeals are allowed. 6. While Sri. Gunjal had appeared and argued the case on behalf of the appellants in the three appeals, Smt. Sona Vakkund and Sri. Nargund, had argued the case on behalf of the respondents contesting the above appeals. 7. A perusal of the order sheet which was maintained in common in the above three appeals indicates that the appeals, in fact, had been admitted on the following substantial questions of law which arise for consideration in the appeals and had been so admitted even as on 12.6.1989. i) Whether the courts below are justified in law in relying upon Ext.D4 when admittedly the signature of the plaintiff on that had been struck off, without there being any evidence to the effect that the said striking of the signature of the plaintiff had taken place after it was produced into the court, as it was the case of the first defendant that it had been struck of after it was filed into court? ii) Whether the courts below are justified in law in the absence of proof with regard to the striking of the alleged signature of the plaintiff on Ext.D4 and proof of execution of Ex.D4 by the plaintiff, that the third defendant was entitled to execute the gift deed Ext.D13 on behalf of the plaintiff? iii) In view of the denial of execution of the power of attorney by the plaintiff in favour of defendant No. 3 and denial of the gift deed was it not incumbent upon defendant No. 3 to enter the witness box and give evidence? iv) Whether in the absence of the delivery of possession gift among the Muslims can be held to have been completed? 8. While the appeals are to be necessarily examined in the light of these questions of law, Sri. Gunjal appearing for the appellants has submitted that the following further substantial questions of law also arise for examination and has placed the same through a memo dated 22.2.2008 filed before this Court furnishing a copy to the other side. i) Whether the courts below were right in shifting the burden of proof of the gift on the donor, when the plaintiffs had disputed the execution of the GPA and the gift deed Ex.D5, set by defendants 1,10 & their children? ii) Whether the courts below were right in placing reliance on the unregistered gift deed executed by a Mohammedan and hold that the gift was complete? iii) Whether the courts below were right in accepting the disputed unregistered GPA, more so when the defendant No. 3 (attorney) has failed to enter the witness box and tender his evidence and further the plaintiff has not been confronted with the GPA, alleged to have been executed by him? Without prejudice 4. Whether the courts below were right in accepting the defendants' case that the plaintiff has executed the GPA to gift away his share, when the deceased Wali Ahmed was in a position to dominate the GPA who had just attained majority? 8. Without prejudice 4. Whether the courts below were right in accepting the defendants' case that the plaintiff has executed the GPA to gift away his share, when the deceased Wali Ahmed was in a position to dominate the GPA who had just attained majority? 8. Now the facts giving rise to the suits, first appeal and second appeals, their relationship amongst the parties who are by common ancestor Abdul Nabi Maniyar can be better appreciated by the following chart Abdul Nabi (deceased) | ---------------------------------------------------------------------- | | Smt. Imambi Smt. Hussainbi W/o. Abdul Nabi w/o. Abdul Nabi Maniyar (Deceased) (1st wife) Maniyar (2nd wife) | Defendant No. 2 Abdul Khader | (Defendant No. 3) | | --------------------------------------------------------------------------- | | | | | | | | Haiders Walish Mehbo Abdul Azimu Mehmo Abdul Rafique ab med obi Razzaq nnisa od Shako Ahmed (Deft.4) (Deft.1) (Deft.5) ue (Deft.7) (Deft.8) or plaintiff) (Deft.6) (Deft.9) 9. Three suits O.S. No. 369/80, 378/80 and O.S. No. 381/90 had been filed by Sri. Vali Ahmed one of the sons of late Abdul Nabi Maniyar impleading one or the other brothers seeking for recovery of the possession of a part of house property bearing CTS 2779 in Belgaum City on the premise that this property which had been originally owned by their father - Abdul Nabi Maniyar and in which all his children had a share, had been gifted in favour of other co sharers in terms of a gift deed dated 29.1.1965 (marked as Ex.D6) in common in all the suits. O.S. 380/80 had been filed by the defendant in O.S. No. 381/80 also a brother of Vali Ahmed and by name Rafiq Ahmed Maniyar seeking for his share in the house property which was indicated to be 7/64th of the property and for separate possession of his share impleading amongst others, all the children of Abdul Nabi Maniyar, wife and children of Wali Ahmed and the tenants who are in occupation of parts of the premise (defendants 15,16,17,18 and 19, but later defendants 15,16,17 are deleted). 10. The basis for filing three suits for recovery of possession by Wali Ahmed was a gift deed dated 29.1.1965 and the very gift deed formed the defence in the suit filed by Rafiq Ahmed for his share in the property. 10. The basis for filing three suits for recovery of possession by Wali Ahmed was a gift deed dated 29.1.1965 and the very gift deed formed the defence in the suit filed by Rafiq Ahmed for his share in the property. In the suit filed by Rafiq Ahmed for his share in the property, the first defendant Wali Ahmed had pleaded that plaintiff had not given the correct extent of interest of their father Abdul Nabi Maniyar in the property CTS No. 2779; that the said Abdul Nabi Maniyar had a brother by name Hyder Saab, who had also a share in the property to the extent of 1/6th share of the property remaining 5/6th share alone had been inherited by Abdul Nabi Maniyar, that Wali Ahmed had become the owner of that 1/6th share in the property also by a separate gift deed executed by the son and daughter of Hydersab which was executed on 27.4.1968 (marked as Ex.D3) and in respect of the remaining extent of 5/6th share in the property which was jointly to be shared amongst himself, his brothers and sisters all of them had executed a gift deed dated 29.1.1965 (marked as Ex.D6) which had been preceded by a power of attorney executed by some of the persons at Bombay on a stamp paper part of which was purchased at Belgaum on 8.12.1964 and part of it at. Bombay on 19.1.1965 and said to have been executed before a Presidential Magistrate at Bombay on 19.1.1965 by one sister and four or five brother of Wali Ahmed and in favour of Abdul Khader Abdul Nabi Manivar third defendant: in O.S. No. 380/80. Bombay on 19.1.1965 and said to have been executed before a Presidential Magistrate at Bombay on 19.1.1965 by one sister and four or five brother of Wali Ahmed and in favour of Abdul Khader Abdul Nabi Manivar third defendant: in O.S. No. 380/80. While under these three documents Waliahmed had claimed exclusive ownership of the entire extent of CTS 2779 of Belgaum City, case of the plaintiff in O.S. No. 380/80 Rafiq Ahmed, who had sued for share in the property, was one of denial of execution either of the power of attorney or the gift deed; that he had remained in possession of a part of the house bearing CTS No. 2779, which possession was sought to be recovered from him in the suit filed by Wali Ahmed in O.S. No. 481/80, ever since the year 1966 onwards, that he had been in possession of two portions i.e. rooms of the property in his own right as a co sharer along with others and as steps were being taken by the first defendant Wali Ahmed to pull down the building to construct a new building and throw away the plaintiff, it became necessary to sue for declaration of his share and consequential injunction. 11. It is on such pleadings the parties went to trial. The trial court which clubbed all the four suits together treated O.S. No. 380/80 as the main suit and evidence was led with reference to this suit and discussion was with reference to this suit, framed the following issues in the light of the contentious pleadings of the parties. O.S. No. 369/80 1. Whether the plaintiffs prove that they are in lawful possession of the suit property 1A by virtue of gift deed dated 27.4.1978? 2. Whether the plaintiffs prove unlawful interference of the suit property 1A by the defendant? 3. Whether the plaintiffs prove that they are entitled to possession of the suit property 1B-1 and 2 from the defendant? 4. Whether the defendant proves that they are in joint possession of the suit properties along with the plaintiffs as co owners? 5. To what reliefs? Additional issues: 1. Whether the plaintiffs proves that they are the owners of the suit 1B-l and 1B-2 properties ? 2. Whether the plaintiffs are entitled for injunction sought for ? Additional issues: 1. Whether the market value of the suit property is incorrect ? 2. 5. To what reliefs? Additional issues: 1. Whether the plaintiffs proves that they are the owners of the suit 1B-l and 1B-2 properties ? 2. Whether the plaintiffs are entitled for injunction sought for ? Additional issues: 1. Whether the market value of the suit property is incorrect ? 2. Whether the court fee paid is proper ? In O.S. No. 378/80 1. Whether CTS No. 2779 belong to the ownership of Abdul Nabisab Maniyar and Ibrahim Hydersaheb Maniyar and Khatalbi Gous Maniyar ? 2. Whether Abdul Maniyar died in the year 1952 ? 3. Whether the heirs of Abdul Nabi Maniyar inherited the property of Abdul Maniyar ? 4. Whether the Ibrahim and his wife gifted CTS No./2779 to the plaintiff No. 1 on 27.4.1968? 5. Whether the gift is valid? 6. Whether the plaintiff is the owner of CTS No. 2779? 7. Whether the defendant unlawfully and forcibly obtained possession of the property mentioned in para 1B ? 8. Whether the defendant's possession in respect of property at para 1B is illegal? 9. Whether the plaintiff is entitled to the possession of the property mentioned in para 1B: 10. Whether the plaintiff proves his possession of the property in para 1A? 11. Whether plaintiff is entitled to permanent injunction against defendant in respect of property mentioned in para 1A ? 12. Whether description of the property is incorrect ? 13. Whether the defendant is the owner of the suit property ? 14. Whether the market value of the suit property is in correct? 15. Whether the court fee paid is proper ? 16. To what order or decree? In O.S. No. 380/1980 1. Whether the plaintiff proves that he is entitled to 7/64th share in the suit property ? 2. Whether the gift deed dated 27.4.1968 in favour of Ibrahim is hollow and sham and colourable? 3. Whether plaintiff had no subsisting interest in the suit property on the date of the suit? 4. Whether plaintiff is entitled to partition and possession of 7/64th share ? 5. Whether plaintiff proves that the defendants are unlawfully trying to demolish the suit property? 6. Is he entitled to permanent injunction ? Additional Issue: 1. Whether the market value of the suit property is incorrect ? 2. Whether the court fee paid is proper ? In O.S. No. 381/80 1. 5. Whether plaintiff proves that the defendants are unlawfully trying to demolish the suit property? 6. Is he entitled to permanent injunction ? Additional Issue: 1. Whether the market value of the suit property is incorrect ? 2. Whether the court fee paid is proper ? In O.S. No. 381/80 1. Whether Khatalbi is the joint owner of the suit properties along with Ibrahim and Abdul Nabi? 2. Whether plaintiff No. 1 proves that the property bearing CTS No. 2779 was validly gifted to him as per the Mohamodan law under the deed dated 27.4.1968? 3. Whether plaintiff is entitled to possession of the property mentioned in para 1B ? 4. Whether plaintiff is in lawful possession of the property mentioned in para 1A? 5. Whether plaintiff proves unlawful interference by the defendants in respect of property mentioned in para 1A? 6. Whether plaintiff is entitled to permanent injunction in respect of suit property mentioned in para 1A ? 7. Whether the market value of the suit property is incorrect ? 8. Whether the court fee paid is proper ? 9. To what order or decree ? 12. What can be noticed is that the pleadings in the three suits by Wali Ahmed for recovery of possession is almost identical and the defence put by him in O.S. No. 380/80 was also on such premise. 13. In the light of such issues parties went to trial. On behalf of the plaintiff in O.S. No. 380/80, the plaintiff examined himself as PW1, Abdul, Razak Maniyar the 6th defendant as PW2 (defendant in O.S. No. 378/80) and the wife of the 4th defendant-Smt. Mariyambi wife of Hyder Maniyar -4th defendant in O.S. No. 380/80 (who has come on record in place of deceased Hydersab as LR) as PW3 and marked documents exhibits P1 to P10. 14. On behalf of the defendant Wali Ahmed, wife Smt. Syeeda Wali Ahmed who also happened to be the second plaintiff in the three suits for possession, while was examined as DW1, one M.B. Oathwad a witness to the gift deed dated 29.1.1965 (marked as Ex.D6) was examined as DW2 documentary evidence were exhibited as D1 to D29. 14. On behalf of the defendant Wali Ahmed, wife Smt. Syeeda Wali Ahmed who also happened to be the second plaintiff in the three suits for possession, while was examined as DW1, one M.B. Oathwad a witness to the gift deed dated 29.1.1965 (marked as Ex.D6) was examined as DW2 documentary evidence were exhibited as D1 to D29. Apart from D3, D4 and D6 as already noticed above, Ex.D5 -wardi said to have been given to the city survey officer following the execution of the Ex.D6 gift deed and a permission given in favour of Wali Ahmed by the Corporation for effecting certain alterations in the building as Ex.D7. Exs.D8 to 12 constituting lease deeds by Wali Ahmed in favour of tenants. Ex.D16 being another permission given by the Corporation and D17 being approved plan, D18-25 being tax paid receipts in respect of the property and D26 to D29, again being lease deeds, completes the documentary evidence on behalf of the defendant. 15. The trial Court on appreciation of the material placed before it answered the issues in favour of the common plaintiffs in the three suits for recovery of possession and against the single plaintiff in the suit for partition of his share, negatived the suit claim in the light of the gift deed Ex.D6 and accordingly, while decreed the three suits for recovery of possession, dismissed the suit filed by Rafiq Ahmed for declaration of his share and for consequential relief by a common judgment. 16. It is against this common judgment four appeals had been preferred. Three appeals by the defendants who had suffered a decree for yielding possession in the three suits filed by Wali Ahmed and the suit of Rafiq Ahmed having been dismissed, Rafiq Ahmed wanted to pursue his chance before the Appellate Court for his share in the suit property. 17. The lower Appellate Court which again heard the appeals in common formulated the following three points for its determination: i) Whether the findings arrived at by the trial Court in O.S. Nos. 380/1980, 369/1980, 378/1980 and 381/1980 giving rise to these appeals are erroneous, capricious and arbitrary? ii) If so, whether they need interference by this Court ? iii) What order ? 380/1980, 369/1980, 378/1980 and 381/1980 giving rise to these appeals are erroneous, capricious and arbitrary? ii) If so, whether they need interference by this Court ? iii) What order ? and held that the trial court had arrived at the proper findings and rightly decreed the three suits for recovery of possession and dismissed the suit for possession for the share in the property. Therefore, concluded that no interference was warranted from the Appellate Court and accordingly, dismissed the four appeals by a common judgment and directed that the parties to bear their own costs in the appeals. 18. It is under these circumstances, four second appeals were filed before this Court. 19. However, as noticed earlier, Regular Second Appeal 90/89 having already been disposed of as having been abated what remained for is the other three second appeals 82, 88 and 89 of 1989. Though these appeals in an earlier round were allowed by this Court, have been restored to file by the Supreme Court, by reversing the judgment and decree passed by this Court earlier. 20. I have heard elaborate submissions made on behalf of the appellants by Sri. V. Gunjal and Smt. Sona Vakkund and Sri. Nargund appearing on behalf of the respondents. 21. Sri. Nargund learned Counsel for the respondents has placed before the court two memos dated 26.2.2008 indicating that the third respondent in R.S.A. No. 89/89. Abdul Khader had died during the year 2005 and the 10th respondent-Mehboob died on 24.6.2006 and no further steps had been taken by the appellant in this appeal for bringing the LRs of the deceased respondents and therefore, the appeal abates. 22. Mr. Abdul Khader had died during the year 2005 and the 10th respondent-Mehboob died on 24.6.2006 and no further steps had been taken by the appellant in this appeal for bringing the LRs of the deceased respondents and therefore, the appeal abates. 22. Mr. Nargund learned Counsel has raised the preliminary objection regarding the maintainability of the appeal on the ground that the suit filed by Rafiq Ahmed for a share in the property also indicated the shares of the other co sharers and that the suit having been dismissed and the appeal having been dismissed, that claim for his share in respect of deceased respondents has attained finality and if so, examining the consequences in respect of the claim in this second appeal vis-a-vis surviving respondents may give rise to conflicting decrees as if the second appeals are to be allowed, it will result in a decree in favour of the appellants in RSA No. 89 of 1989 whereas the appellants have already suffered a decree for dismissal as against the deceased respondents which has become final and that will result in inconsistent decrees being passed in the same suit which should necessarily be avoided. Submission is that the cause of action for prosecuting the suit only as against the surviving defendants in the suit does not sustain as unless the legal heirs of the deceased defendants also are retained on record, the suit cannot proceed as against the surviving defendants alone and therefore the entire suit necessarily abates and if so second appeal also should be dismissed as having abated. 23. Responding to this submission Sri. Gunjal, learned Counsel for the appellants in this appeal submits that the appeal being by the plaintiffs in the suit who had sued for their share in the property and if other co-sharers share should be taken that of the plaintiffs and defendants, they are in the same position and if so there is no question of the appeal abating as against some of them as it can be taken that the surviving parties continue to represent the deceased also in a representative capacity and therefore the entire appeal does not abate and the appeal survives for examination. 24. It is also submitted by Sri. Gunjal, learned Counsel that in so far as legal representatives of the third respondent is concerned, they are being brought on record through paper publication. 25. 24. It is also submitted by Sri. Gunjal, learned Counsel that in so far as legal representatives of the third respondent is concerned, they are being brought on record through paper publication. 25. The above three appeals are being heard together and the decision was same before the trial court and lower appellate court in the original suits and the regular appeals respectively of which the above second appeals arise. It should be noticed that while the developments in RSA No. 89 of 1989 does not affect the tenability or maintainability of the other two appeals, namely, RSA No. 82 of 1989 and RSA No. 88 of 1989, RSA No. 89 of 1989 arises out of the suit for partition by claiming plaintiffs share in the suit schedule property. That suit was mainly resisted by the first defendant and his wife and children who claimed exclusive ownership of the suit schedule property. So far as tenth respondent who figured as eighth defendant in the suit is concerned, the eighth defendant had not contested the suit though was represented by an Advocate and did not claim anything adverse to the interest of the plaintiff in the suit. Irrespective of this position, even if the suit is to be decreed, in my understanding, it does not bring about any conflict as at the best while the plaintiffs in OS No. 380 of 1980 may get a share and a decree to this extent, it may possibly lead to a share in favour of the eighth defendant also as a brother and that in itself will not result in a conflicting decree as the eighth defendant had neither claimed anything over and above his share nor had contended that the plaintiff does not get a share etc.,. In this view of the matter, I am of the opinion that the appeal does not abate. 26. On behalf of the appellants, the main contention urged by Sri Gunjal, learned Counsel is that the courts below had committed an error in law in concluding that Exhibit-D4 and Exhibit-D6 had been proved and that it also binds the appellant-plaintiff in OS No. 380 of 1980. 27. 26. On behalf of the appellants, the main contention urged by Sri Gunjal, learned Counsel is that the courts below had committed an error in law in concluding that Exhibit-D4 and Exhibit-D6 had been proved and that it also binds the appellant-plaintiff in OS No. 380 of 1980. 27. In this regard by drawing attention to paragraphs 16, 17 and 18 of the Judgment of the trial court, it is submitted that the trial court had committed an error in law in concluding that the gift deed had been proved in terms of the provisions of the Mahomedan Law, the possibility of the other co-sharers executing a gift deed in favour of Waliahmed Abdul Nabi Maniyar who had taken care of their upbringing and education at Mumbai and he alone being in a better financial position, probabilizes the other co-sharers executing the gift deed out of their love, affection and gratitude in favour of Waliahmed Abdul Nabi Maniyar is a circumstance which strongly probabilizes the case of the defendants; that the finding based is not on any material; that the learned Judge of the trial court has given a go by to the requirements of law and has proceeded in surmises and presumptions. It is also submitted that placing reliance on Exhibit-D3 a gift deed said to have been subsequently executed by the children of Hyder Sab has also vitiated the finding of the trial court on its finding and appreciating the legal effect of Exhibit-D4 and Exhibit-D6. 28. Sri. Gunjal, learned Counsel for the appellants has also pointed out the inherent discrepancy found not only in Exhibit-D4 but also in Exhibit-D6 and has submitted that the learned Judge of the trial court failed to appreciate that such discrepancies clearly indicated that Exhibit-D6 did not meet the requirements of law to pass it as a gift deed and said to have been executed by all other co-sharers in favour of Waliahmed Abdul Nabi Maniyar. 29. An additional submission made on behalf of the appellants is that said Waliahmed Abdul Nabi Maniyar was in a dominating position over all others and execution or signatures of the parties in Exhibit-D4 or Exhibit-D6 cannot be presumed to be either voluntary or uninfluenced and therefore no importance should have been attached to either Exhibit-D4 or Exhibit-D6 by the trial court. Sri. Sri. Gunjal, learned Counsel submits that the learned trial Judge has gone astray in attaching too much of importance to the fact that the plaintiff in OS No. 380 of 1980 had stated that he had stayed for about six months in a house in the year 1968 before getting into possession of part of the suit property and treating this as an admission that the plaintiff had conceded for the due execution of the gift deed is a finding perverse in nature and as such the finding does not. necessarily follow in the wake of the statement that the plaintiff had stayed for about six months elsewhere and the statement has been totally blown out of proportion and contrived into an admission by the plaintiff for the execution of the gift deed which finding it is submitted is not tenable in law. 30. Learned Counsel would also point out to the inherent inconsistencies in Exhibit-D4 and Exhibit-D6 and Exhibit-D6 being not in consonance with Exhibit-D4 though it is claimed that Exhibit-D6 was pursuant to Exhibit-D4 would clearly improvableness the case of the first defendant. 31. Non-registration of Exhibit-D6 is argued as fatal to the validity of the execution of gift deed in as much as the instrument when once it is reduced into writing and one transferring the interest in the immovable property on a stamp paper of value of more than Rs. 100/-, non-registration affects the transfer of the property in terms of the provisions of Section 49 of the Registration Act, 1908 and therefore submits that the gift does not operate assuming for argument sake that there was such gift. Submission is that the consequence under Section 49 follows in the light of the requirements under Section 17(1)(a) of the Registration Act, 1908 itself and the provisions of Section 129 of the Transfer of Property Act, 1882 also cannot save this consequence which operates independently under the provisions of the Registration Act, 1908. In support of such submission, reliance is placed on the following decisions: [a] 'Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum' reported in AIR 1962 AP 199 [b] Imbichimoideenkutty Vs. Pathumunni Umma and Others, AIR 1989 Ker 148 32. One another contention urged on behalf of the appellants by Sri. In support of such submission, reliance is placed on the following decisions: [a] 'Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum' reported in AIR 1962 AP 199 [b] Imbichimoideenkutty Vs. Pathumunni Umma and Others, AIR 1989 Ker 148 32. One another contention urged on behalf of the appellants by Sri. Gunjal is that the courts below have wrongly placed the burden of proving the gift deed; that it was incumbent upon the defendant Waliahmed Abdul Nabi Maniyar who had set up the gift deed to prove it to the satisfaction of the courts and the trial court had not framed the issue properly in this regard and proceeding as though it was incumbent upon the plaintiff in OS No. 380 of 1980 to prove that the gift deed was not a valid gift and placing such burden on the plaintiff has vitiated the Judgment of the trial court and submitted it is contrary to the provisions of Sections 101, 102 and particularly Section 111 of the Evidence Act as it is the first defendant: who was virtually in a position of a guardian of the plaintiff at the time when Exhibit-D4 and Exhibit-D6 are said to have been executed and therefore they should not have been accepted at their face value. 33. Sri. Gunjal would also submit that the inherent discrepancy in both Exhibit-D4 and Exhibit-D6 such as part of the stamp paper being purchased at Belgaum and part of it at Bombay and the canceling of the names therein and the non-registration of Exhibit-D6 are all circumstances which raise doubts about the genuineness of the documents and coupled with the fact that the plaintiff and other defendants have continued to be in possession of the suit schedule property in their own right as co-sharers very strongly probabilizes that so far as they are concerned, the gift deed assuming that it was there had never been acted upon and cannot operate against them. 34. 34. It is submitted that if the gift is claimed only through Exhibit-D4 and Exhibit-D6, the combined effect of Exhibit-D4 and Exhibit-D6 also not meeting the requirements of a valid gift, the case of the first defendant fails in law, irrespective of the facts and therefore it is submitted that while the suit of the plaintiff in OS No. 380 of 1980 should be decreed, suit for recovery of possession against the defendants should be dismissed. 35. Learned Counsel would submit that recording a proper finding on the appreciation of evidence as is available on record is the duty of the trial court and lower appellate court and if a finding recorded is on improper appreciation or finding does not follow on the available evidence on record, the High Court; has the power and duty to set right such errors in law even in the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Reliance is placed upon tile decision of the Supreme Court in the case of Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, AIR 2003 SC 4351 in support of the submission that the gift is not complete as the donors had not put the donee in possession of the property, particularly, as they had continued to remain in possession and therefore in so far as persons who remained in possession of parts of CTS No. 2779 are concerned the gift cannot operate or did not come into existence. Learned Counsel would rely upon the decision of the Supreme Court in the case of Maqbool Alam Khan Vs. Mst. Khodaija and Others, AIR 1966 SC 1194 ]. 36. Learned Counsel would also seek to explain that Exhibit-P3 which is the same as Exhibit-D5 does not amount to an admission on the part of the plaintiff in OS No. 380 of 1980 as it is used only as a cause of action and not as an admission of the contents. 37. 36. Learned Counsel would also seek to explain that Exhibit-P3 which is the same as Exhibit-D5 does not amount to an admission on the part of the plaintiff in OS No. 380 of 1980 as it is used only as a cause of action and not as an admission of the contents. 37. In so far as the suits for recovery of possession which are mainly decreed on the basis of the gift deed, it is submitted that there is not even a plea as to the precise date on which the defendants in respect of the suit had trespassed and on the other hand the plaintiffs in the suit for recovery of possession not disputing that the property was one which was otherwise required to be shared amongst heirs of Waliahmed Abdul Nabi Maniyar and the parties having continued to enjoy the property jointly, there was no case of trespass on the part of the defendants being made out by the plaintiffs in those suits and if the defendants had continued to be in possession as co-sharers, they are neither trespassers nor suit filed in the year 1980 for recovery of possession can be said to be within the period of limitation as the defendants who are in possession in their own right ever since the death of their father i.e., on 11.6.1961 and therefore submits suits should have been dismissed on the ground of limitation etc.,. 38. In this regard, learned Counsel has placed reliance on a decision of the Patna High Court in the case of 'Bhagwan Das Sharma v. Gaya Sah and Ors.' reported in AIR 1967 Pat 254 . 39. Countering such submissions, Sri. Nargund, learned Counsel for the respondents would vehemently urge that the findings and the conclusions drawn by the trial court and affirmed by the lower appellate court are not. only correct on facts but also proper in law and therefore no interference is called for in these appeals by the High Court in the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 40. only correct on facts but also proper in law and therefore no interference is called for in these appeals by the High Court in the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 40. It is also submitted that in so far as one-sixth share in the property which the first defendant got through a gift deed i.e., Exhibit-D3 is concerned, there being no challenge to that, to that extent the defendants' ownership in one-sixth share of the suit schedule property cannot be gone into in these appeals and at any rate cannot be disturbed as the plaintiff in OS No. 380 of 1980 have not questioned the validity of this gift deed. 41. It is also submitted that the intrinsic evidence in this document clearly showed that the donee had already become the owner of five-sixth share in CTS No. 2779 earlier to the gift deed at Exhibit-D6 and in the light of Ex-D4, Ex-D6 and Ex-D3, it should be taken that the defendants had become the full owner of CTS and therefore were not only entitled for recovery of possession of portion in occupation of the plaintiff and other co-sharers who had continued to remain in possession but also had successfully resisted the suit for partition. It is submitted that the varadi submitted by the very plaintiff in OS No. 380 of 1980 Exhibit-D5 is clear proof of the parties having not only accepted the gift deed but also having acted upon the same. The oral evidence of PW-1 being supportive of tills position, there cannot be other finding by the courts below. It is submitted on facts that the plaintiff and other co-owners having virtually admitted the signatures both in Exhibit-P4 and P6, are estopped from contending to the contrary.