Honble YADAV, J.–Heard the learned counsel for the appellant at length.

(2). Perused the judgments given by both the Courts below.

(3). The instant Second Appeal is concluded by concurrent findings of fact and no substantial question of law is involved, therefore, it is liable to be dismissed summarily.

(4). At the first instance it is contended by learned counsel for the appellant that as there is no pleading about the oral gift in the plaint therefore both the Courts below were not entitled to travel beyond the pleadings of the plaintiff-landlord respondents.

(5). A close scrutiny of Paragraph 2 of the plaint leads towards an irresistible conclusion that the factum of gift by Gafoor in favour of plaintiff respondents Rabiya and Yakoob was pleaded. It is true that in the plaint it was not made specific as to whether the gift by Gafoor in favour of Rabiya and Yakoob was oral or written. Suffice it to say in this regard that if the defendant feels any ambiguity in the pleadings it ought to have been clarified as envisaged u/O. 10 r. 1 CPC. Be that as it may, both the Courts below have recorded a concurrent finding to the effect that Gafoor who purchased the disputed premises through registered sale-deed from Farid on 22.4.1980 has executed oral gift in favour of Rabiya and Yakoob. The concurrent finding of facts recorded by both the Courts below on question of oral gift executed by Gafoor in favour of Rabiya and Yakoob cannot be challenged in Second Appeal on the ground of reappraisal of evidence. It goes without saying that in Second Appeal reappraisal of evidence is not permissible.

(6). It is next contended by learned counsel for appellant Shri J.R. Patel that under Mohammadan Law oral gift is permissible provided declaration, delivery of possession and acceptance is proved. Suffice it to say in this regard that in a suit for eviction by landlord against tenant, the question of title is foreign but in abundant caution where such issues are found to be necessary it can be raised incidently. Here in the present case both the Courts below have arrived at a conclu- sion that Gafoor has delivered possession to Rabiya and Yakoob plaintiff respondents by way of oral gift. It is admitted during the course of arguments by the learned counsel for appellant that Gafoor is alive. In case Gafoor is alive only he can deny about the execution of oral gift in favour of Rabiya and Yakoob. The defendant-tenant appellant has no legal justification to question the oral gift execu- ted by Gafoor in favour in Rabiya and Yakoob, plaintiff-respondents.

(7). The learned counsel for the appellant in support of his aforesaid argument placed reliance on a decision rendered by the Apex Court reported in AIR 1995 SC 1205 (1). The facts and circumstances of the aforesaid case are not applicable to the facts and circumstances of the present case and as such for the reasons stated above, the aforesaid judgment is distinguishable. The learned counsel for appellant also placed reliance on a decision rendered by Andhra Pradesh High Court reported in AIR 1984 A.P. 344 (2), but the facts and circumstances of the aforesaid case are also distinguishable in the present case.

(8). Learned counsel for appellant lastly contended that in the present case it was obligatory on the part of Rabiya and Yakoob to give a notice to him to the effect that Farid had executed a sale-deed in favour of Gafoor and in turn Gafoor had executed an oral gift in favour of them therefore they claimed themselves to be the landlord of the disputed premises. In view of the concurrent findign recorded by both the Courts below that Rabiya and Yakoob are the landlords giving notice infor- ming the defendant-appellant to the effect that they become land lord by virtue of oral gift is a mere technicality. To my mind if technicalities are pitted against the substantial justice the Court should ensure that substantial justice should not be allowed to escape or slide on mere technicalities.

(9). I am of the

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