A gift under Mohammedan law requires explicit acceptance and possession; failure to prove these elements results in denial of ownership claims.

JUDGMENT :

UMESH M. ADIGA, J.

The present appeal is directed against the judgment and decree dated 15.04.2009 passed by learned I Addl.District Judge, Bengaluru Rural District, Bengaluru in RA.No.160/2008, (for short 'First Appellate Court'). The said appeal arises from the judgment and decree dated 21.06.2008 passed by the learned Principal Civil Judge (Sr.Dn), Bengaluru Rural District, Bengaluru in OS.No.78/2006(for short 'trial Court'), dismissing the plaintiff's suit for declaration and permanent injunction.

2. The parties are referred to as per their ranking before the trial Court.

3. The brief facts of the case are that, suit property was admittedly belonging to one Smt.Peerambiyamma W/o Syed Khan. She inherited the said property from her father. She alleged to have gifted the said property, in favour of her two sons, by name Basha Sab and Baba Sab - plaintiff No.2, by the registered gift deed dated 25.04.1958. The Basha Sab and Baba Sab came in possession of the said property by virtue of the gift deed. After the death of Basha Sab, his son succeeded to the said property along with Baba Sab. They have paid taxes in respect of the said property. They were also cultivating the land and harvesting the crops from the said land. During the year 2005, revenue authorities refused to enter the name of plaintiffs mutate their names in the revenue records in respect of the suit property. The plaintiffs also noticed the name of defendant in the revenue records i.e. Column No.9 and 12(2) of the RTC. With these reasons, they prayed to declare that they are lawful owners and in possession of the suit property and also consequential relief of injunction restraining the defendant from interfering in their peaceful possession and enjoyment of the property.

4. Defendant No.1 has filed a written statement denying the contention of the plaintiff. According to his contention, Smt. Peerambiyamma, D/o Haji Sab and W/o Syed Khan, had five sons namely Sab Jan Sab, Mastan Sab, Hassan Sab, Basha Sab (father of the plaintiff) and Baba Sab,(plaintiff No.2). The said Basha Sab died about 15 years prior to the filing of the suit. The said Smt. Peerambiyamma had executed a registered sale deed in respect of suit property in favour of Mastan Sab and the said Mastan Sab executed registered sale deed dated 29.05.1961 in favour of defendants and put him in possession of the property. The said Mustan Sab had been in possession of the property till he executed a sale deed in favour of defendant dated 13.08.1992. The said Mustan Sab handed over the possession of the property in favour of defendant. From the date of sale deed, defendant has been in possession and enjoyment of the property. He got mutated revenue records in his name and has been paying the tax. Therefore, plaintiff was never in possession and enjoyment of the property and they were never owners of the said property. Mustan Sab, as well as defendant were in possession of the property for more than 45 years. The suit was filed after 48 years from the date of alleged gift deed. Therefore, it is hopelessly barred by time. With these reasons, the defendant prayed to dismiss the suit.

5. The trial Court framed the following issues:

"(1) Whether the plaintiffs prove their title to the suit schedule property?

(2) Whethe