The contesting defendants have filed this Second Appeal against the judgment and decree dated 16.05.2006 passed by the learned Additional District Judge, Fast Track Court No.1, Munger in Title Appeal No.08 of 2005 whereby the lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 31.01.2005 passed by the learned Munsif-1st, Munger in Title Suit No.11 of 2002.

2. The plaintiff-respondent filed the aforesaid suit for declaration of title and possession over the suit land and alternatively prayed for recovery of possession. The plaintiff claimed the aforesaid relief alleging that the suit land was recorded with other land in the name of Seikh Abdullah and Seikh Illtaf. Seikh Abdullah died leaving behind Akhtar Hussain, Ali Haj and Md. Aslam. Seikh Illtaf Hussain died leaving behind his widow and one son Asalat Hussain. The widow and the sister of Seikh Illtaf Hussain transferred their share to Asalat Hussain by registered deed of gift dated 29.12.1951, who in turn, gifted the property in favour of Jamila on 22.03.1972. It was only a paper transaction. The plaintiff was in possession of the suit land measuring 1 acre 86 decimals since 1960. The defendants negotiated with the plaintiff on 07.02.1970 to execute the sale deed with respect to the suit land out of 4 acres 68 decimals of the suit plot. On 14.09.1970 the plaintiff paid Rs.9,000.00 and he came in possession of the suit property. In the year 1978 the defendants executed the sale deed in favour of the brother and wife of the plaintiff relating to an area of 2 acres 82 decimals out of the suit plot No.227. The plaintiff also prescribed title by adverse possession. The plaintiff requested the defendants to execute the sale deed but they did not execute the sale deed, therefore, the suit was filed.

3. The contesting defendants-appellants filed written statement denying the allegation of the plaintiff. They denied to have orally agreed to sell the suit property. They also denied to have received the consideration amount and also denied the possession of the plaintiff.

4. The trial court on the basis of the evidences held that in absence of any written and registered instrument of sale the plaintiff cannot acquire any title over the suit land. The trial court also found that the plaintiff has not been able to prove title on the basis of adverse possession as the plaintiff admitted the title of the contesting defendants even on 09.02.2002. Accordingly, the plaintiff suit was dismissed.

5. On appeal, the lower appellate court recorded the finding that defendant No.1 admitted the claim of the plaintiff and his admission is of binding nature. The lower appellate court also held that the plaintiff is in possession for more than 12 years as such he has perfected title by adverse possession.

6. On the date of admission on 19.11.2008 the following two substantial questions of law were formulated:

(i) Whether the parties being governed by Mohammedan Law, the presumption of jointness as provided in Hindu Law would be applicable specially when the separation is admitted in the instant case?

(ii) Whether the agreement for sale of property in question for a consideration of Rs. 9,000.00 would amount to passing of a title without any registered deed of transfer?

7. The learned counsel for the appellants Mr. Abbas Haider submitted that the lower appellate court decreed the plaintiff suit for declaration of title merely on the ground that the defendant No.1 admitted the claim of the plaintiff and there is no partition between defendant No.1 and the contesting defendant Nos.2 to 4, therefore, the admission of defendant No.1 will be binding on defendant Nos.2 to 4. According to the learned counsel, the approach of the lower appellate court is wrong particularly when it is admitted case that the parties belonged to Mohammedan Law and separation is admitted. The learned counsel further submitted that the presumption available to Hindu family is n