Hon’ble Sudhir Agarwal, J.—The appeal has been restored to its original number vide order of date passed on recall application. As requested by learned counsel for the parties, since this appeal is pending for the last more than 25 years, I proceed to decide this appeal finally.

2. Heard Ch. N.A. Khan, learned counsel for the appellants and Sri M.A. Qadeer, learned Senior Advocate assisted by Sri Shamim Ahmad, learned counsel for respondent.

3. While hearing this appeal under Order 41 Rule 11, this Court formulated four substantial questions of law, as under:

“(1) Whether Smt. Johara Begum made an oral gift of her property in favour of Bande Ali?

(2) Whether Ext. A-66 was compulsorily registrable?

(3) Whether the Court below acted illegally in rejecting material evidence and in wrongly interpreting material documents on the record? and,

(4) Whether the judgment and decree passed by the Court below are vitiated in law?”

4. This is a defendants’ appeal. The plaintiff-respondent, Zakir Hussain instituted Original Suit No. 481 of 1975 for a declaration that disputed house shown at the bottom of plaint as A, B, C, D is owned by him. The aforesaid suit was instituted in the Court of Munsif, Mohammadabad but due to increase in valuation the plaint was returned and thereafter it was instituted in the Court of Civil Judge (Second) Azamgarh where it was registered as Original Suit No. 05 of 1980. The suit was decreed by Trial Court vide judgment and decree dated 30.5.1981. The defendants-appellants preferred Civil Appeal No. 278 of 1981 but the same has been dismissed by Third Additional District Judge, Azamgarh vide judgment and decree dated 24.8.1985.

5. The Trial Court framed five issues as under:

^^1& D;k oknh okni= ds vUr esa fyf[kr lEifRr dk Lokeh gS \

2& D;k okn dky ckf/kr gS \

3& D;k okn fucU/k ls ckf/kr gS \

4& oknh fdl ;fn fdlh vuqrks"k dks izkIr djus dk vf/kdkjh gS \

5& D;k fooknxzLr lEifRr oknh dk iSr`d lEifRr gS ;k mldh rgrh Hkwfe tksgjk chch dh gS \^^

“1. Whether the plaintiff is owner of the property mentioned at the bottom of the plaint?

2. Whether the suit is time-barred?

3. Whether the suit is barred by estoppel?

4. What relief, if any, is the plaintiff entitled to get?

5. Whether the disputed property is plaintiff’s ancestral property or the land thereunder belongs to Zohra Bibi?” (English translation by the Court)

6. The issues No. 1 and 5 relates to question, whether plaintiff was the owner of property in dispute or the underneath land belong to Johara Bibi in respect whereof the defendants claimed that she gifted (Hibba) the entire property before 1905 to Bande Ali and hence successors and heirs of Bande Ali are owner of entire disputed house.

7. There were three houses of which Houses No. 1 and 2 were adjacent to each other while House No. 3 situate at some distance. The claim set up by plaintiff was that there is a partition in all the three houses about 25-26 years back wherein plaintiff’s share in Houses No. 2 and 3 was towards north, and, in House No. 1, towards east. The dispute relates to this eastern part of house No. 1 shown as A, B, C, D in the sketch diagram, whereupon as per the claim set up by plaintiff, he is in occupation, in view of mutual oral partition and the defendants have no rights or claim thereupon.

8. The defendants, on the contrary, had pleaded that there is no deviation/partition in respect of House No. 2 and 3 though the plaintiff for convenience is residing in both houses alongwith his family on the northern side. It is also not disputed that in both the houses, plaintiff had half share. However, in respect to House No. 1, it was pleaded that Johra Bibi was owner, who by oral gift/Hibba transferred the said property to Bande Ali and herself left for Iraq with Zamin Ali. Bande Ali raised construction for surrounding the land whereupon Kasim Ali, Zafar Ali and Ghulam Abbas raised a dispute and when it was brought to notice to Johra Bibi, she sent a letter to Bande Ali in