JUDGMENT AND ORDER : N. Chaudhury, J. Defendants of Title Suit No. 159/1983 of the court of learned Civil Judge (Sr. Divn.) No. 1, Barpeta have preferred this second appeal challenging the concurrent findings of the learned courts below. The suit of the respondents/ plaintiffs was decreed by the learned trial court and the learned first appellate court by judgment and decree dated 20.09.2003 in Title Appeal No. 2/1999 confirmed the same. This court while admitting the second appeal on 11.08.2006 framed the following substantial question of law:- "Whether the oral evidence of the plaintiffs/respondents is sufficient to establish the title of an immovable property as held by the learned courts below to the exclusion of documentary evidence?" 2. The basic minimum facts necessary for adjudicating the present second appeal are required to be stated at the threshold. Surjyatan Nessa, a daughter of Abed Ali instituted the aforesaid title suit in the Court of learned Civil Judge (Jr. Divn.) No. 1 at Barpeta stating that the suit land originally belonged to her father Abed Ali. As legal heir of Abed Ali she obtained mutation with respect to the suit land on 27.11.1978 and has been enjoying the same since then. While she was enjoying the land, the defendants No. 1, 2, 3 and 4 and the proforma defendants instituted Title Suit No. 115/1981 praying for cancellation of her mutation with respect to the land but the said suit was dismissed. Aggrieved at such dismissal of that suit, the defendants trespassed into the suit land in the month of Asharh and took away the paddy standing on the land. They dispossessed the plaintiff although they did not have right, title and interest with respect thereto. Under such circumstances, plaintiff instituted the suit for declaration of her right, title and interest over the suit land and also for recovery of khas possession by evicting the defendants. 3. On being summoned, the defendants appeared and submitted written statement denying the case of the plaintiff. The defendants raised objection as to maintainability of suit on the ground of res judicata under Section 11 of the Code of Civil Procedure, defect of parties for non-joinder of all defendants and also under Order 9, Rule 4 of the Code of Civil Procedure. The defendants raised objection as to maintainability of suit on the ground of res judicata under Section 11 of the Code of Civil Procedure, defect of parties for non-joinder of all defendants and also under Order 9, Rule 4 of the Code of Civil Procedure. According to the defendants, the plaintiff was never in possession of the land and they have been enjoying the same for last 40 years on assertion of their own right and so title of the plaintiff, if there be any, has been extinguished by way of adverse possession. The dispossession by the defendants on 12.12.1982 has been specifically denied by the defendants in their written statement. Defendants have prayed that suit be dismissed on compensatory cost. 4. Upon consideration of rival contentions of the parties, the learned trial court framed 7 issues and the same are quoted below:- 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by the principles of Res-judicata? 4. Whether the suit is bad for non-joinder of parties? 5. Whether the plaintiff has right, title and interest over the suit land? 6. Whether the defendants are possessing the suit land since more than 40 years adversely and openly and as such they have acquired right, title and interest over the it? 7. To what relief, if any, is the plaintiff entitled? 5. In course of trial, plaintiff examined herself but did not adduce any documentary evidence. The plaintiff stated in her examination-in-chief that suit land measuring 3B 2L was originally owned by Abed Ali and she got the same by right of inheritance. On the following sentence, she claimed that Abed Ali had given her the suit land measuring 3B 2L out of 21B 1K 5L of the suit patta. She obtained mutation in her favour and it was all along in her possession. But she has been dispossessed about 10 years ago from the date of deposition. She claimed that suit land was cultivated by her husband. But she could not say the dag number and patta number of the land. However, she gave the boundaries. The plaintiff was not cross examined by the defendants. 6. But she has been dispossessed about 10 years ago from the date of deposition. She claimed that suit land was cultivated by her husband. But she could not say the dag number and patta number of the land. However, she gave the boundaries. The plaintiff was not cross examined by the defendants. 6. The defendants, on the other hand, examined as many as 4 witnesses and they claimed that they have mutations in their name with respect to the suit land for last 15/16 years. They claimed that they have been possessing the land since 15/16 years. Their father died about 16/17 years ago and plaintiff does not have any right, title and interest with respect to the land. She was never in possession of the land. This evidence of DW 1 was also not subjected to cross examination as the defendants declined to cross examine. DW 2, Haji Rahizuddin deposed that after death of Abed Ali, the land was mutated in the name of the defendants. DW 4 is Harun Rashid. He, on the other hand, deposed that he knows both the plaintiff and the defendants since before. Hayet Ali died 25 years ago leaving behind 5 (five) sons and the defendants have been possessing the land all along. The plaintiff was never in possession. At one stage he stated that the defendants were supposed to give money to plaintiff but they did not make payment and this is why there was dispute. 7. On the basis of the aforesaid materials available on record, the learned trial court initially dismissed the suit by judgment and decree dated 24.08.1985. The plaintiff preferred Title Appeal No. 5/1987 in the court of learned Assistant District Judge challenging this judgment of dismissal. The learned first appellate court passed judgment on 18.09.1987 allowing the same and set aside the trial court judgment and decree. The suit was remanded to the learned trial court for giving opportunity to the plaintiff to lead evidence. The records do not show as to whether any further evidence was led by the plaintiff. But there is no deposition on record to show that plaintiff led any evidence thereafter. The suit was remanded to the learned trial court for giving opportunity to the plaintiff to lead evidence. The records do not show as to whether any further evidence was led by the plaintiff. But there is no deposition on record to show that plaintiff led any evidence thereafter. Be that as it may, the learned trial court on the basis of the materials available on record, held that there is cause of action of the suit and that the suit is not barred by the principle of res-judicata as defendants having raised the issue of res-judicata did not exhibit the plaint, the judgment and the decree of the earlier suit to arrive at a finding that the two suits were substantially on the same issue and that the issues were finally and conclusively decided by a competent court on earlier occasion. Accordingly, issue No. 3 was decided in favour of the plaintiff. Coming to the issue No. 4, the learned trial court held that the suit is not barred by defect of parties as all the co-pattadars were brought on record. While deciding issue No. 5, the learned trial court held that in the earlier suit, title of the plaintiff was declared. Although the judgment and decree passed by the learned trial court was not brought on record but appellate judgment was brought to the notice of the court and from that it appears that the title of the plaintiff was declared on the earlier occasion and accordingly declared the title of the plaintiff. The learned trial court also held that the DW 4 having admitted that the suit land was given to the plaintiff by her father by gift, her title over the land stands established. Accordingly, the suit of the plaintiff was decreed in entirety after holding that defendants were not in possession of the land over 40 years as claimed by them. This trial court judgment and decree dated 06.11.1998 was questioned in Title Appeal No. 2/1999 in the court of learned Civil Judge (Sr. Divn.) at Barpeta. Having heard the learned counsel for the parties, the learned first appellate court passed judgment and decree dated 20.09.2003 dismissing the appeal. This trial court judgment and decree dated 06.11.1998 was questioned in Title Appeal No. 2/1999 in the court of learned Civil Judge (Sr. Divn.) at Barpeta. Having heard the learned counsel for the parties, the learned first appellate court passed judgment and decree dated 20.09.2003 dismissing the appeal. Coming to the question of title, the learned first appellate court held that suit originally belonged to Abed Ali who gave 2B 3K of land to the plaintiff and accordingly her name was mutated in the Records of Rights. This evidence of PW 1 was not challenged by the defendants. Further the evidence of DW 1 was corroborated by DW 4. According to the learned first appellate court, because entire money was not paid to the plaintiff, the dispute arose and this is why defendants instituted Title Suit No. 115/1981 to cancel the mutation of the plaintiff. But their suit was dismissed and right, title and interest of the plaintiff over the suit land was affirmed. The learned first appellate court further held that the parties are co-sharers of un-partitioned land and so question of extinguishment of title by adverse possession cannot arise. This first appellate judgment and decree passed on 20.09.2003 dismissing the appeal has been called in question in the present second appeal and accordingly the sole substantial question of law as referred to above has been framed. 8. I have heard Mr. A.M. Buzarbaruah, learned senior counsel, assisted by Ms. M Barman for the appellants and Mr. A Alam, learned counsel for the principal respondents. I have perused the lower court records. 9. Mr. A.M. Buzarbaruah, learned counsel for the appellants, would argue that the suit of the plaintiff is barred by res-judicata and so the substantial question law needs to be amended. Having noticed, the findings arrived at by the learned trial court that the defendants after raising the issue of res-judicata did not produce the plaint and judgments of the earlier suit and the appeal, there is no material whatsoever on record to come to a finding that the subject matter of the present litigation was in question on earlier occasion and that the same had been decided conclusively and finally. This being the position, the findings of the learned courts below in so far it relates to res-judicata cannot be faulted. 10. This being the position, the findings of the learned courts below in so far it relates to res-judicata cannot be faulted. 10. It cannot be overlooked that plaintiff instituted the suit for declaration of her right, title and interest. She made a statement that land was suit land measuring 3B 2K was given to her by her father Abed Ali. In one part of the plaint she claimed that she inherited the property and accordingly her name was duly mutated in the Records of Rights. But after having made such pleading, she did not produce the Jamabandi to show as in which capacity was her name mutated in the Records of Rights. If she claims title on the basis of inheritance then it must be in conformity with the provision of Section 65 of the Mulla's Mahomedan Law. The learned counsel for both sides admitted that Abed Ali died leaving behind 3 (three) sons and 9 (nine) daughters. From pleadings of the parties it appears that Abed Ali had 7 Bighas of land out of which he had gifted 1 Bigha and balance 6 Bighas of land was to be inherited by his legal heirs. Applying the principle of inheritance of properties under Mahomedan Law it appears that 3 sons and 9 daughters are to inherit 6 Bighas of land. Then each of the daughters would get 2 kathas of land and each of the sons would get 4 kathas of land. Plaintiff, therefore, at best inherit 2 kathas of land if the total land left behind by Abed Ali is 6 Bigha and if there are 3 sons and 9 daughters. For the time being as transpiring from the respective pleadings of the parties, it does not appear that plaintiff can inherit more than 2 katha from the ancestral properties. Under such circumstances, claim of the plaintiff for 3B 2K of land by inheritance cannot stand. 11. If the alternative case of the plaintiff that she was gifted with the property by her late father is to be accepted, in that event also gift has to be in conformity with Mahomedan Law. Hiba (gift) in Mahomedan Law regarding immovable property has three essentials and if any of these essentials are not established then Mahomedan gift cannot be proved. Hiba (gift) in Mahomedan Law regarding immovable property has three essentials and if any of these essentials are not established then Mahomedan gift cannot be proved. Section 149 of Mulla's Mahomedan Law lays down these three essentials which are quoted below:- (i) there has to be a declaration of gift by the donor giving a land to the donee; (ii) the donor must hand over the possession of the immovable property to the done; and (iii) the donee must take over possession from the donor. Such ingredients under Section 149 of Mulla's Mahomedan Law are in conformity with the provision of Section 123 of the Transfer of Property Act. The only difference is that under Section 123 of the Transfer of Property Act, gift of an immovable property having value of more than Rs. 100/- can be made only by a registered document in writing and attested by at least two witnesses. Since Mahomedan gift can be made orally, there is no question of registration or attestation. This is why unless and until plaintiff claiming gift (Hiba) in her favour, with respect to the suit land establishes all these three ingredients that her father had made declaration as to the gift, that the land was handed over to her physically by her father and that she took over possession thereof, the pleading as to gift cannot be proved. Here in this case apart from making a one line statement that her father gave the land to her, plaintiff did not adduce any evidence either oral or documentary to prove the three essentials of Mahomedan Law. Even in her own statement she did not disclose the existence of the three ingredients. Consequently, plaintiff could not prove acquisition of title by oral gift from her father. Learned courts below did not take into consideration this aspect of the matter at all and declared title of the plaintiff on the basis of alleged earlier decree which was neither exhibited nor brought on record in accordance with law. 12. The learned courts below were of the opinion that DW 4, Harun Rashid had admitted that suit land was gifted by Abed Ali to plaintiff. On the face of such finding, I have perused the lower court records, particularly, the deposition of DW 4. I have not come across any such admission or deposition of Harun Rashid (DW 4). 12. The learned courts below were of the opinion that DW 4, Harun Rashid had admitted that suit land was gifted by Abed Ali to plaintiff. On the face of such finding, I have perused the lower court records, particularly, the deposition of DW 4. I have not come across any such admission or deposition of Harun Rashid (DW 4). Such finding of the learned courts below, therefore, is perverse. 13. The lone substantial question of law framed by this court as pointed out above, really conveys as to whether plaintiff has succeeded to establish her title by the oral evidence she adduced. The plaintiff has made simultaneous claim of inheritance as well as gift. So far as oral gift is concerned, there cannot be any document but it could be proved only by leading appropriate oral evidence. In the present case, the plaintiff has not adduced any oral evidence whatsoever to establish Mahomedan gift in the light of the provisions of Section 149 of the Mulla's Mahomedan Law. The plaintiff not having adduced evidence to establish her title over the suit land, the sole substantial question of law is accordingly decided. Plaintiff has failed to establish her title over the suit land by way of gift. Nevertheless, plaintiff is one of the legal heirs of Abed Ali and her right, title and interest on the basis of her inheritance in terms of Mahomedan Law continues to remain in force until and unless her title is otherwise extinguished or alienated. In that view of the matter, the second appeal is allowed. Impugned judgments and decrees are set aside. 14. Send down the records of the learned courts below after framing of decree.