Nishitendu Chaudhury, J.

1. This Second Appeal is directed against the concurrent findings of two Courts below. The plaintiff suit was decreed by the learned trial court holding that there was no gift in terms of the Provision of Mohammedan Law and the same was upheld by the defendant. The sole respondent, late Ataur Rasul, as plaintiff instituted Title Suit No. 258 of 1998 in the Court of learned Civil Judge (Senior Division) No. 1, Kamrup, at Guwahati, seeking declaration of his right, title, interest and for permanent injunction. The plaintiff stated that he and the defendant are Sunni Muslims by faith and that defendant is his brother. The plaintiff was the absolute owner of the plot of land measuring 11 lechas particularly described in schedule to the plaint. In the year 1975 the defendant being his younger brother had influenced him to execute a registered gift deed being No. 10047 dated 17.11.1975 in favour of the defendant. Although he executed the gift deed and got it registered but did not hand over, possession of the same. Thereafter, on or about 03.08.1998 the defendant approached the plaintiff and demanded possession of the property on the basis of the aforesaid gift deed to which the plaintiff declined. Consequently, the defendants started harassing the plaintiff. Because of such harassment consequent to refusal of the plaintiff to hand over possession to the defendant, the plaintiff was compelled to institute the suit praying for declaration that notwithstanding execution of registered gift deed dated 17.11.1975, right, title and interest of the property remained with him. The defendant did not acquire any right, title and interest to the suit property and/or injunction restraining the defendant and his her is, legal representatives, men or servants, employees, agent, attorneys and/or other person from alienating, selling, transferring, leasing and/or changing the nature and character of the suit property mentioned in the registered gift deed.

2. The defendant appeared and submitted written statement denying averments made in the plaint and stated that he was given possession with respect to the property and that story of his approaching the plaintiff on 03.09.1998 is not correct. He, therefore, claimed that the suit be dismissed with cost of Rs. 5,000/-. On the basis of such rival contention of the parties, the learned trial court framed as many as 6 (six) issues and the same are quoted below:

1. Whether the suit is maintainable in the present form?

2. Whether there is cause of action for the suit?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for waiver, estoppels and acquiescence?

5. Whether gift deed No. 10047 dated 17.11.1975 is liable to be cancelled and the same is inoperative, null and void and ab-initio?

6. What relief the parties are entitled to?

3. The plaintiff examined two witnesses including himself and exhibited some documents. The defendant also examined himself and exhibited some documents like jamabandi.

4. Upon perusal of the evidence brought on record and after hearing the learned counsel for the parties, the learned trial court by his judgment and decree dated 24.12.2001 decreed the suit in entirety and restrained the defendant from challenging the nature and character of the suit property mentioned in the aforesaid gift deed. Aggrieved, the defendant preferred Title Appeal No. 7 of 2002. The learned First Appellate Court after hearing the parties and considering all the materials available on record decided issue No. 5 again in its own way holding that registration and execution of the gift deed cannot make the gift valid under Mohammedan Law unless all the three conditions precedent as mentioned in Section 149 of Mullah's Mohammedan Law are satisfied in a gift made by a Mohammedan to another Mohammedan. The learned first appellate court further observed that not only the P.W. 1 but independent witness P.W. 2 who is a tenant of the property stated on oath coming to