Prakash Gupta, J.

1. The instant Civil Second Appeal under Section 100 CPC has been filed by the appellants aggrieved by the judgment and decree dated 30.9.1999 passed by learned Addl. District Judge No.9, Jaipur City, Jaipur (hereinafter referred to as the 'appellate court') in Civil Regular Appeal No.54/1999 whereby the 'appellate court' has quashed and set aside the judgment and decree dated 19.03.1987 passed by the learned Civil Judge No.5, Jaipur City (hereinafter referred to as the 'trial court') and decreed the civil suit filed by the plaintiffs against the defendants for declaration of the sale-deed dated 6.9.1968 as null and void, possession of the property etc.

2. The facts in brief for the purpose of deciding the appeal are that plaintiffs-original respondents No.1 to 4 filed a suit for declaration, seeking possession and injunction for the disputed property i.e. shop.

3. The case of the plaintiffs before the trial court was that the disputed property i.e. a shop described in para of the plaint was gifted by Ms. Bashiram W/o Abdul Samad, defendant No.1 (since dead) and Abdul Rehman son of Ellahibux to the father of the plaintiffs Mohd. Ibrahim vide the gift deed dated 08.02.1958 (Ex.3) and the plaintiffs being the heirs of Mohd. Rehman were entitled to the property. It is also the case of the plaintiffs that the sale deed dated 06.09.1958 (Ex.A-11) executed by the defendant No.1 to 6 in favour of the defendant Nos.7 to 9 was void as against the right of the plaintiffs as the defendant No.1 had already gifted the disputed property, therefore, she had no right to sale that property. It is also prayed that the defendants be restrained by permanent injunction from raising any construction in the disputed shop.

4. On the other hand, the case of the appellants defendants was that the alleged gift deed dated 08.02.1958 (Ex.3) was forged and fabricated document and the disputed property had rightly been sold by the defendant Nos.1 to 6 to defendant Nos.7 to 9 by a registered sale deed dated 06.09.1968 and therefore, they were entitled to that property.

5. On the basis of the pleadings of the parties, learned trial court framed necessary issues. To prove the issues, both the parties produced oral as well as documentary evidence. Thereafter, the learned trial court after hearing the parties dismissed the suit of the plaintiffs against the defendants for declaration etc. vide impugned judgment and decree dated 19.3.1987. Against which the plaintiffs filed appeal before the lower appellate court.

6. The learned trial court after the close scrutiny of the facts, evidence and the law on the subject found that the plaintiffs had failed to prove the execution of (Ex.3) and even if it is taken to have been duly executed, it being a contemporaneous document, needed to be registered and since admittedly, the document was not registered, it could not have been taken into evidence. Accordingly, the learned trial court dismissed the suit.

7. The learned appellate court did not agree with the findings of the learned court of the first instance and found that gift had been made earlier and the (Ex.3) was prepared after words only to evidence the fact of gift and the document was not contemporaneous one and therefore need not be registered. Accordingly, the learned first appellate court by the impugned judgment and decree dated 30.09.1999 allowed the first appeal filed by the plaintiffs and set aside the decree and judgment of the trial court and decreed the suit in favour of the plaintiffs holding the sale deed (Ex.A-11) to be void.

8. Hence, the present appeal.

9. On 24.8.2000, this Court admitted the second appeal on the following substantial questions of law:-

1. Whether according to Mohammedan law if the gift is made through writing it does not require compulsorily registration?

2. Whether the version of oral gift which is an unregistered document i.e. Bakshisnama Ex.3 can be preferred against the registered document i.e. sale deed exec