The validity of a gift deed under Mohammedan Law requires constructive delivery of possession, and adverse possession cannot be claimed if the possession is permissive.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. This second appeal has been filed against the judgment dated 31.03.2023 and decree dated 12.04.2023 passed by learned District Judge-II, Palamau at Daltonganj in Civil Appeal (Title Appeal) No. 5 of 2017 whereby the appeal has been dismissed and the judgment dated 31.03.2017 (decree dated 21.04.2017) passed by learned Additional Junior Civil Judge, Palamau at Daltonganj in Title Suit No. 80 of 1995 has been affirmed.

2. The defendant is the appellant before this Court. The plaintiffs had filed suit seeking declaration of right and title of the plaintiffs in respect of the suit property mentioned in schedule -A to the plaint and further sought a declaration that the privileged parcha granted to the defendant vide Miscellaneous Case No. 3 of 1994-95 was fraudulent and without jurisdiction. A relief was prayed seeking eviction of the defendant from the suit premises and a further prayer was made for a money decree of Rs. 900/-.

3. The learned counsel for the appellant has made the following submissions which have been recorded in the order dated 20.01.2025:-

A. While giving the background the learned counsel has submitted that the land originally belonged to one Jhuman Mian and after his death, his son Sk. Md. Ismile came in possession of the property who sold the property by two registered sale deeds in favour of Sk. Ahmed Ali Ansari vide registered sale deed dated 15.05.1961 and 16.01.1964 which is exhibit-4 and exhibit 4/A. As per the case of the plaintiff, Sk. Ahmed Ali Ansari gifted the property by way of registered deed of gift to the daughter-in- law, who is the plaintiff no.1 before the Court. He has submitted that at no point of time, the donor or the donee got possession of the property. Learned counsel for the appellant has submitted that the plaintiff no.1 was claiming property by virtue of registered gift deed No. 1760 dated 16.02.1984 (Exhibit-B) but the gift was not complete in terms of the Mohammedan Law as the property was never delivered to the plaintiff no.1.

B. He has also submitted that the defendant was in possession of the property for more than 60 years. It is submitted that the defendant had perfected his title by way of adverse possession. He has also submitted that the suit was barred by limitation as the defendant was in possession of the property.

C. It is submitted that the suit was filed alleging that the defendant was the tenant under Sk. Ahmed Ali Ansari who was the donor with respect to the gift and accordingly the suit itself was not maintainable.

D. The learned counsel submits that the landlord-tenant relationship has been ultimately held to be not established and as per the finding of the learned Trial court as well as the appellate Court, the defendant was found to be in permissive possession of the property.

E. The learned counsel has also submitted that it has come on record that the defendant was issued 'Basgit Parcha' in Misc. Case No. 3 of 1994-95 by the Circle Officer but the Deputy Commissioner or the Circle Officer were not made party in the proceedings. He has submitted that the legality and validity of the 'Basgit Parcha' has been entered into by the learned Court while denying relief to the defendant with respect to his right over the property on the basis of 'Basgit Parcha' by observing that the necessary procedure etc. for grant of 'Basgit Parcha' were not followed. The learned counsel submits that such a proceeding deciding the legality and validity of issuance of 'Basgit Parcha' is barred under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act .

F. The learned counsel submits that considering the fact that the defendant was in the possession of the property for a long period, the judgment passed by both the courts have failed to consider that the suit itself was barred by limitation. He submits that the point of adverse possession has not been properly considered by both the courts. The learned counsel submits that neither the gift