In a gift under Mahomedan law, delivery of possession of the subject matter is an essential element for the gift to be valid.

This appeal is directed against the judgment and decree passed by the Subordinate Judge, Upper Assam Districts at Dibrugarh in Title Suit No. 5 of 1962.

2. The plaintiffs case, briefly, is that late Delaluddin Ahmed was the owner of 269B, 3K, 9 Lessas of land covered by dag No. 8 of N. L. R. Grant No. 46 at Moran. On June 1, 1948 Delaluddin made a gift of 4 bighag of the said land to defendants Nos. 19 to 21, who accepted the gift and came to possession. On November 24, 1950, defendants 19 to 21 sold the aforesaid 4 bighas of land (which will hereinafter be called the suit land) to the plaintiff by a registered sale deed and delivered possession. The plaintiff who was a Government servant, had to be away from the land. Taking advantage of his absence, defendant No. 14 began to construct a house on the suit land, whereupon, on enquiry, the plaintiff came to learn that defendant No. 1, who was the son of Delaluddin, had sold the suit land to defendant No. 14. The plaintiff, therefore, filed a suit before the Munsiff for declaration of his title and possession of the suit land but the plaint was returned on the ground that he had no pecuniary jurisdiction to try the suit. The plaintiff, therefore, has filed the instant suit before the Sub-Judge for declaration of his title to the suit land, for partition and khas possession and also prayed for an injunction.

3. Only defendant No. 1 has filed a written statement and contested the suit. He has denied the alleged gift by his father and has averred that the sale of the suit land to the plaintiff was invalid, that the suit was barred by limitation and that it was bad for non-joinder of parties. He has denied that there had been any delivery of possession of the suit land by his father to the alleged donees and has averred that he is in continuous possession of the suit land since after his fathers death. He has claimed compensatory cost of Rs. 1,000/-.

4. The learned Assistant District Judge has framed the following issues: "1. Is the suit barred by limitation?

2. Is the suit bad for misjoinder and non-joinder of parties?

3. Whether late Delaluddin Ahmed made a sift of the land in suit to the defendants Nos. 19 to 21? And if so was it valid in law ?

4. Whether the defendants Nos. 10 to 21 sold the land in suit and delivered possession thereof to the plaintiff ?

5. Whether the plaintiff became owner of the land in suit by the above sale and had possession of the same as such?

6. To what reliefs, the plaintiff is entitled ?

7. Whether the defendants Nos. 4, 5, 6 and 21 are minors?"

5. After trial the learned Assistant District Judge has dismissed the suit. He has held that the plaintiff has failed to prove delivery of the suit land by Delaluddin to the alleged donees. He has also held that the sale of the suit land to the plaintiff was not a valid one and that the suit was barred under Article 120 of the Limitation Act and that the suit was also bad for non-joinder of parties as a number of co-sharers of the patta have not been joined to the suit. He has further held that the land of the alleged gift has not been proved to be identical with the suit land.

6. The most important and basic question to be decided in the matter is whether the suit land was gifted by Delaluddin to defendants Nos. 19 to 21.

The alleged donor and the donees admittedly were Mahomedans and governed by the Mahomedan personal law. In order to prove a valid gift under the Mahomedan Law, the plaintiff must prove the three essentials of a gift, namely, (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee.

The plaintiff has not examined any witness to prove any of the three above essentials of a valid gift. He has proved a certified copy, Ext. 2, of the gift executed by Delaluddin in favour of defendants Nos. 19. 20 and 21. The learned Assistant District Judge has found