Mungeshwar Sahoo, J. – The defendant has filed this second appeal against the Judgment and Decree dated 11.12.1990 passed by the Special Judge, Gaya in Revenue appeal No.7 of 1987 whereby the lower appellate Court dismissed the appeal and thereby confirmed the Judgment of the trial Court dated 23.2.1987 passed by Revenue Officer, Gaya in suit No.5711 of 1981.

2. The plaintiffs-respondents filed the aforesaid suit before Revenue Officer under Section 106 of the Bihar Tenancy Act for correction of the Revenue record regarding the suit property measuring 28 decimal. The plaintiff’s case in short is that the suit property was settled by the ex. landlord in favour of the father of the plaintiff. After settlement, Parwana was issued and rent receipt were also issued. After vesting of Jamindari, the father of the plaintiff was mutated in the State of Bihar and was obtaining rent receipt. Subsequently, their father gifted the property to the mother of the plaintiff. Since after gift the Jamabandi is in the name of the mother. However, in the recent survey, instead of recording the name of the plaintiff, the suit land has been recorded wrongly in the name of the defendants but the plaintiffs are in possession of the property.

3. The defendants appeared and filed written statement alleging that the suit land was settled by the ex.landlord in favor of Bindeshwary Sharma, Advocate. The ex.landlord also granted receipt in his name. The said Bindeshwari Sharma, Advocate, sold the property by registered sale deed in the name of the father of the defendant. Therefore, the property has been rightly recorded in the name of the defendant.

4. Both the parties adduced evidences oral and documentary. On the basis of the evidences available on record, the Revenue Officer recorded the finding that the plaintiff is in possession of the property and accordingly, held that the entry was wrong and the suit was decreed. The appellant filed appeal before the Special Judge under the Bihar Tenancy Act. On consideration of the evidences oral as well as documentary, the lower appellate Court also recorded the finding that the plaintiff are in possession and the defendant failed to prove their possession. Accordingly, the title appeal was dismissed.

5. At the time of admission on 30.4.1992, the following substantial question of law was formulated : –

“In view of the finding that on the basis of ext. ‘A’ the appellant has purchased 79 decimal in R.S. plot No.641, whether his title could have been declared only with regard to 24 decimal”?

6. The learned senior counsel, Mr. Pushkar Narayan Shahi at the time of hearing submitted that some other substantial question of law were also involved in this second appeal in addition to the substantial question of law formulated. According to the learned counsel, ext.‘A’ is the registered sale deed whereby the appellant’s father has purchased the land measuring 79 decimal. In such circumstances, the appellate Court could not have recorded the finding that the defendant has got only 24 decimal of land. Therefore, the substantial question of law is liable to be answered in favour of the appellant. So far the other substantial question of law are concerned, the learned counsel submitted that during the pendency of the suit, amendment application was filed wherein the plaintiff alleged that their mother is insane person. The plaintiff are not claiming title on themselves and their mother has not been made party, particularly when their mother is alive on the date of institution of the suit. Therefore, the suit itself was not maintainable. Secondly, the learned counsel submitted that according to the plaintiff themselves, the property was gifted by unregistered gift deed to their mother by their father. It is settled law that gift by unregistered gift deed is impermissible. Therefore, no finding could have been recorded in favour of the plaintiff. Thirdly, the learned counsel submitted that unregistered gift deed has been relied upon