The main legal point established in the judgment is that the gift deeds were held void under Section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, and the proceedings abated upon the issuance of a notification under the Act.

Mungeshwar Sahoo, J

1. This Second Appeal has been filed by the plaintiffs-respondents-appellants against the judgment and decree dated 11.10.1996 passed by the learned 4th Additional District Judge, West Champaran at Bettiah in Title Appeal No.20 of 1994 whereby the learned Lower Appellate Court allowed the appeal and reversed the judgment of the trial court dated 19.01.1994 passed by the learned Munsif, Bagaha in Title Suit No.82 of 1992.

2. The plaintiff-appellant filed the aforesaid suit for declaration that the gift deed dated 25.05.1989 executed by Md. Munif in favour of the defendant is null and void and is not binding on the plaintiff and also prayed for injunction. The plaintiffs claimed the aforesaid relief alleging that in fact, the property belonged to Md. Munif who in lieu of Dower Debt executed a registered deed by mokasha on 14.04.1984 in favour of his wife, Imam Bandi. Imam Bandi gifted the property by registered gift deed dated 05.02.1985 in favour of the plaintiff and since then the plaintiffs after accepting the gift are in possession of the property. The defendants fraudulently obtained a registered gift deed on 25.05.1989 and on the basis of the same, the defendants are interfering with the peaceful possession of the plaintiffs.

3. The defendants filed written statement alleging that in fact, Imam Bandi died in the year 1985, therefore, the property reverted to Md. Munif and thereafter Md. Munif has executed the gift deed in favour of the defendants. The gift deed of the plaintiff is not legal and valid and on the basis of the same, the plaintiff never came in possession. The trial court on the basis of the evidences, decreed the plaintiff’s suit holding that the property was given to Imam Bandi by her husband in lieu of Dower Debt and she had the authority to execute the gift deed in favour of the plaintiffs.

4. On appeal, the Lower Appellate Court allowed the appeal and dismissed the plaintiff’s suit holding that the gift deed said to have been executed by Imam Bandi in favour of the plaintiffs and Md. Munif in favour of the defendants are void in view of the Section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

5. At the time of admission of this Second Appeal on 07.04.1998, the following substantial questions of law were formulated:

“(a) Whether the appellate court is right in affording the defendants-appellants to raise and argue the mixed question of law and facts at the time of hearing while the defendants appellants neither raised the aforesaid mixed question of law and fact in their written statement nor evidence was adduced, nor ground taken in memorandum of appeal as to whether the notification u/s 3 of the Act was issued in 1978 and as such the gifts are void without permission u/s 5 of the Act?

(b) Whether the appellate court is right to declare that as no oral evidence in court was adduced in respect of “offer” of the gift dt.15.2.1985, though the same was neither objected by defendants in their written statement nor oral evidence adduced by defendants, rather there is a clear statement of making “offer” in the registered gift deed in plaint as well as oral evidence adduced by the plaintiffs?”

6. The learned counsel for the appellants submitted that the question about the notification under Section 3 of the Consolidation Act is not a pure question of law but is a mixed question of law and fact. The defendants never raised any objection in the written statement and there is no pleading regarding the issuance of notification under Section 3 and likewise, there is no evidence also in support of the said fact but the Lower Appellate Court on the basis of the submission of the learned counsel for the defendant held that in view of the notification under Section 3 issued in the year 1978, the gift deeds of both the parties are void. The learned counsel submitted that since there was no pleading and no evidence, the finding of the Lower Appellate