” This second appeal is directed against the judgment and decree dated 17.12.2008 passed by the learned Court of Civil Judge, Dhubri, in Title Appeal No. 18/2006 whereby the judgment and decree dated 21.01.06 passed by the learned Court of Munsiff No. 1, Dhubri, in Title Suit No. 287/2003 was reversed.

2. I have heard Mr. B. Sinha, learned counsel for the appellant. None appears for the respondent.

3. The appellant was the defendant. The defendant-appellant is the son of the brother of Gulbhan Bibi, who, according to the plaintiffs, made an oral gift in their favour.

4. The respondent along with one Jahar Ali filed a suit stating, inter alia, that one Gulbhan Bibi owned and possessed land measuring 6 Bigha 4 Katha 18 Lecha as described in the Schedule to the plaint in various Dags of Patta Nos. 65 and 66 of Rangapani Pt-II in the District of Dhubri. She and her husband, Akbar Ali, had no issue and they brought up the plaintiffs as daughter and son from their childhood and after they had attained majority, the couple gave each of them in marriage. The plaintiffs had looked after them as parents till their death living in the same mess and house. Akbar Ali pre-deceased Gulbhan Bibi. It was pleaded that Schedule land was gifted to them by Gulbhan Bibi in equal shares and delivery of possession was also given to them. The defendant was not an heir of late Gulbhan Bibi and, thus, not entitled to any share of the land and that he was only an ' Adhiar' in the suit land. The plaintiffs had filed a petition for mutation and said petition was rejected on 02.06.2003 on an objection being lodged by the defendant.

5. Accordingly, suit was filed praying for a decree declaring right, title and interest of the plaintiffs over the suit land on the basis of the gift and for correction of the records by cancelling the mutation in the name of the defendant, if any, and for khas possession by evicting the defendant and for a decree of compensation at the rate of Rs. 100/- per day for illegal occupation upon the suit land.

6. A written statement was filed by the defendant taking usual pleas such as non-maintainability of the suit, the suit being barred by waiver and acquiescence, suit being barred by law of limitation, lack of cause of action, etc. The allegations made in the plaint were denied. It was stated that plaintiff No. 1 was a maid servant in the house of Gulbhan Bibi and that the suit land was not gifted to the plaintiffs and that they are not in possession.

7. On the basis of the pleadings, the learned trial Court framed the following issues:

' 1. Is there any cause of action for the suit?

2. Whether the plaintiffs have right, title and interest over the suit land?

3. Whether the suit is maintainable?

4. Whether the plaintiffs are entitled to reliefs as prayed for?'

8. The plaintiffs adduced the evidence of five witnesses; whereas the defendants adduced no evidence but cross-examined the witnesses examined on behalf of the plaintiff.

9. On the basis of the evidence on record, learned trial Court concluded that the plaintiffs had failed to prove the oral gift as pleaded in the plaint and, accordingly, held that the plaintiffs have no right, title and interest over the suit land. In view of the above finding in issue No. 2, the suit came to be dismissed.

10. Only plaintiff No. 1 preferred an appeal against the judgment and decree of the learned trial Court.

11. The learned appellate Court allowed the appeal by holding that the gift made was valid under Muhammadan Law.

12. This appeal was admitted by an order dated 04.09.2009 on the following substantial question of law:

' 1. Whether the plaintiff could prove the three essential conditions to constitute a valid oral gift within the meaning of Section 149 of the Muhammadan Law?'

13. Mr. Sinha has submitted that the plaintiffs miserably failed to prove that there was any valid oral gift. There is no pleading as well as evidence as to when the oral gift was made and when there was so-called deliv