The burden of proof under S 101 (1) of the Evidence Act and the legal provisions of oral gift under the Mohammedan Law were central to the judgment.

This second appeal is directed against the judgment and decree dated 18/1/2012 passed by learned Civil Judge, Barpeta in T.A. Appeal No. 41/2010, whereby learned Civil Judge dismissing the cross objection allowed the appeal filed by the plaintiffs and decreed the suit of the plaintiffs.

2. The brief facts leading to the present appeal is that the appellants herein, as plaintiffs, filed T.S. No. 76/2009 praying for partition of the land described in the plaint, declaration of their title over the land measuring 3 bigha 3 katha 10 lecha out of the schedule-B land and also for recovery of possession by evicting the respondents/defendants.

3. The case of the plaintiffs was that land measuring 10 B 1 K 13 L covered by K.P. Patta No. 96 and Dag No. 84 and 85 belonged to Rahatannessa and her two sons Rekat Ali, predecessor of the plaintiffs and Raizuddin, predecessor of the defendants. Out of the said land, land measuring 1 B 4 K 13 L covered by Dag No. 84 was transferred in favour of proforma defendant Nos. 1, 2 and 3 by all the pattadars. Thereafter, Rahatannessa gifted 1 B of land in favour of Azizpur Jamamasjid and two bighas of land in favour of proforma defendant No. 5 and plaintiff No. 2 from dag No. 85. Thus, at the time of death of Rahatannessa, total land left out in the suit patta was 5 B 2 K, which was jointly owned by Rekat Ali and Raizuddin having equal share therein. Out of the said land, 1 B was gifted to the plaintiff and with the said gifted land the plaintiff were entitled to land measuring 3 B 3 K 10 L, which was in possession of the plaintiffs and after death of Raizuddin. The defendants occupied 3/4th portion of the land, which was in possession of the plaintiff and hence, theplaintiff filed the suit seeking declaration of their title over 3B 3K 10 L of land, partition and other relief, as indicated above.

4. The pleaded case of the defendant was that Rahatannessa transferred 1 B of land in favour of Azizpur Jamamasjid and 1 B each in favour of Amir Ali, proforma defendant No. 5 and Samsul Haque, the plaintiff, which they were possessing. After transfer of 3 B of land by Rahatannessa, 7 B 1 K 13 L of land was left over, which was possessed by all the three pattadars having equal share therein. However, Rekat Ali transferred the entire land measuring 1 B 1 K 13 L of land of Dag No. 84 to Mukaddes Ali and since then, he has been possessing the said land. After selling 1 B 1 K 13 L of land, only 1 B 1 K 12 L of land was left out in the share of Rekat Ali, which he transferred in favour of Raizuddin, the predecessor of the defendants and after transferring the said 1 B 1 K 13 L of land in favour of Raizuddin, 1 B in favour of Mukaddes Ali and 01B 2 K 12 L in favour of proforma respondent No. 2, Raikat Ali was left with no share in the said patta and as such, the plaintiff was not entitled to any land in the suit patta. On the basis of the above pleadings of the parties, the learned Munsiff framed the following issues :-

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

2. Whether the plaintiffs have right, title and interest in the suit land to the extent of 3 Bighas 3 Kathas 10 lechas ?

3. Whether the plaintiffs are entitled for a decree of partition for their share in the suit land ?

4. Whether the parties are entitled to any other relief/reliefs?

5. Both the parties adduced evidence. Plaintiffs examined two witnesses in support of their claim. Defendants, however, did not adduce any evidence and after hearing the parties, learned Munsiff partly decreed the suit in favour of the plaintiff vide judgment and decree dated 18/1/12.

6. Aggrieved by the judgment and decree passed by the learned Munsiff, the plaintiff preferred T.A.No.41/2010 wherein the defendants also took cross objection. The learned First Appellate Court, upon hearing the parties, allowed the appeal filed by the plaintiff granting the relief sought in the plaint and dismissed the cross-objection.

7. Aggrieved by the judgment and decree passed by the