Honble TATIA, J.–Heard learned counsel for the parties.

(2). This second appeal has been filed by the plaintiffs against the judgment and decree dated 1st Feb., 1984 dismissing the suit of the plaintiffs and the appeal against which was also dismissed by the first appellate court by judgment and decree dated 15.03.1985.

(3). Brief facts of the case are that the plaintiffs filed the suit for perpetual injunction against the defendants No. 1 & 2 alleging that the plaintiffs purchased a piece of land from the defendant No. 2 by the registered sale deed dated 22nd Feb., 1974. It comes from the facts of the case that there was adjoining land in the eastern side to the plaintiffs purchased property and that was in occupation of the defendant No. 1 as tenant of the defendant No. 2-seller. It appears from the fact that there was necessity for providing way to approach the plaintiffs purchased property and for that purpose way could have been provided only in the eastern side of the purchased property, but the eastern side was occupied by the defendant No. 1 as tenant, therefore, the defendant No. 1 satisfied the defendant No. 2 and agreed to gift the land, which was in occupation of the defendant No. 1 as tenant excluded the land in dispute, which was left for the way to reach to the plaintiffs plots. For that purpose, the defendant No. 1 agreed and executed an agreement dated 22nd Feb., 1974 in favour of the defendant No. 2 agreeing that defendant No. 1 will vacate the land measuring 18x13 and the defendant No. 2 in lieu of that executed a gift deed on the same day i.e. 22nd Feb., 1974 in favour of the defendant No. 1 for the land, which defendant No. 1 was occupying as a tenant except the land measuring 18x13. The gift deed was also registered on 22nd Feb., 1974, therefore, there are total three documents; one sale deed (Ex.1) dated 22nd Feb., 1974 in favour of the plaintiffs; second a gift deed (Ex.4) dated 22nd Feb., 1974 in favour of the defendant No. 1 executed by the defendant No. 2. Both the sale deed and gift deed were, presented for registration and were registered on 22nd Feb., 1974. Third is the agreement of the same date i.e. 22nd Feb., 1974 executed by the defendant No. 1 in favour of the defendant No. 2, which also appears to have been marked as Ex.4.

(4). It appears that despite all these documents containing the admission of the defendant No. 1 that he will provide land measuring 18x13 to the plaintiffs so that they may use their purchased property, the defendant No. 1 did not remove his possession from the said land. In this case, the disputed land is 18x13 only. There is no dispute with respect to the title of the property of the plaintiffs or title of the defendant No. 1, which they acquired by gift deed dated 22nd Feb., 1974.

(5). The defendants No. 1 & 2 submitted separate written statements. The defendant No. 2 admitted the facts mentioned in the plaint whereas the defendant No. 1 contested the suit by saying that there was a way in the eastern side, but it was closed. The defendant No. 1 admitted gift of the land in his favour by defendant No. 2. Even after admitting gift of land by defendant No. 2 in his favour, the defendant No. 1 in the same para 2 of the plaint denied the title of the defendant No. 1 over the disputed land measuring 18x13. The defendant No. 1 also submitted that there is another way for the land of the plaintiffs, which is in the western side. The defendant No. 1 also submitted that any agreement executed for the land measuring 18x13 is illegal because of the reason that the defendant No. 2 is not the owner of the said property and defendant No. 1 is in possession of the said land of 18x13 and he became owner of the property by adverse possession.

(6). The trial court framed the following issues:-

i) Whether the plaintiffs are owner of the property marked in the map submitted with the plaint?

ii) Whether the land mentioned in para No. 1 of the plaint is the only land available as a land for way to

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