1. This Second Appeal is filed by original Plaintiffs whose suit for declaration and injunction bearing Regular Civil Suit No.231 of 1983 was dismissed by the learned Joint Civil Judge, Junior Division, Parbhnai on 21.2.1986; which judgment and decree is further confirmed by the learned District Judge, Parbhani in Regular Civil Appeal No.74 of 1986 decided on 13.10.1988.

2. Some of the facts giving rise to this litigation and admitted at this stage can be stated thus;

It is admitted that Respondent No.4 Sherkhan was the father of original Respondent Nos. 1 to 3 and Younuskhan. Younuskhan is admittedly father of appellant No.1 and husband of appellant No.2. Pending this appeal, Respondent Nos. 3 and 4 have died and their legal representatives are brought on record.

3. It is the case of the appellants-plaintiffs that in or about 1954, Respondent No.4 Sherkhan orally gifted survey No.151 (Gat No.308) and Survey No.202/2 (Gat No.459) situated at village Lohgaon, Taluka and District Parbhani. At that time, Younuskhan was minor. Younuskhan continued to be in possession of the suit property till his death in 1969. Thereafter appellants plaintiffs, who were his son and widow respectively, became owners and possessors of the suit property. Respondents started disturbing plaintiffs' possession by challenging their ownership and hence, the suit was filed for declaration and possession.

4. Respondents-defendants filed their written statement and denied that Respondent No.4 Sherkhan had executed any gift deed or Hiba in favour of Younuskhan in respect of the suit property. According to defendants, in or about 1954, the two properties were entered in the name of Younuskhan who then was minor, to avoid the property from coming into the clutches of the Ceiling Act. According to the defendants, Sherkhan never transferred or gifted the suit property in favour of Younuskhan. It is denied that initially Younuskhan and after his death, plaintiffs-appellants have been the owners and possessors of the suit property.

5. The trial court and the first appellate court both have recorded concurrent findings of fact that the plaintiffs-appellants failed to prove oral gift in favour of Younuskhan and also possession of Younuskhan over the suit property.

6. Heard learned counsel for respective parties. Shri S.V.Gangapurwala, learned Counsel for the appellants, relying upon certain authorities, argued that while considering the evidence regarding gift/Hiba, the circumstantial evidence and probabilities of the case were not properly considered and merely because there was no direct oral evidence regarding Hiba, the case of the appellants was wrongly disbelieved. He also submitted that there was presumption regarding continuance of possession after the death of Younuskhan, as it is admitted that Younuskhan had been in possession of suit property during his life time. Shri Gangapurwala further submitted that Respondent No.4 Sherkhan was estopped from denying the ownership of Younuskhan.

7. On the other hand, Shri P.V.Mandlik, learned Senior Counsel, argued that the evidence on record and certain admissions by the plaintiffs during oral evidence indicate that there was no Hiba and the plaintiffs were not in possession of the suit property when the suit was filed. It is also argued that the question of estoppel was not raised by the pleadings; there is no issue framed to that effect either in the trial court or before the first appellate court and, therefore, the same cannot be argued now in the second appeal.

8. This second appeal was admitted vide order dated 3.2.1989, but no substantial questions of law were framed at that time. However, from the arguments advanced before me, following questions of law can be said to be arising in this second appeal.

(1) Whether, by circumstantial evidence, plaintiffs-appellants proved that Respondent No.4 Sherkhan had orally gifted the suit land to Younuskhan?

(2) Whether the presumption regarding possess