JUDGMENT

B.D. Gupta, J. - This is a defendants' second appeal arising out of a suit for declaration that house No. 857, Nalbandi Tola (Katra), Allahabad, belonged to the plaintiff and that the plaintiff was the sole owner thereof. The trial court had dismissed the suit but on appeal by the plaintiff the suit was decreed. Hence this second appeal by two of the defendants who were arrayed in the suit as defendants 2 and 3.

2. The relevant facts may now be briefly stated. The house in suit was originally owned by a widow Smt. Sajja Bibi. On the 26th of April, 1955, according to the plaintiff's case, Smt. Sajja Bibi made a gift of the house and followed it up, the same day, by executing a gift deed and getting the same registered with the registration authorities. The plaintiff's case, as set forward in the plaint, was that at the time of the gift the property was in possession of tenants arrayed in the suit as defend. ants Nos. 4 to 6, and that those tenants attorned in plaintiff's favour consequent upon the gift by Smt Sajja Bibi. The donor, Smt. Sajja Bibi, died in February 1957 where after, according to the plaintiff's case, defendant-appellants, as also Mohammad Ismail arrayed as proforma defendant-respondent No. 5, started asserting their claim as heirs of Snit, Sajja Bibi with the result that the tenants i.e., defendants Nos. 4 to 6, took advantage of the situation and stopped payment of rent to the plaintiff declaring that they would' pay rent to the person who may be found entitled to the property. It was in these circumstances that the plaintiff claims to have been driven to the necessity of filing the present suit in 1958.

3. Mohammad Ismail does. not appear to have filed any written statement, but the appellants, as also defendants Nos. 4 to 6, contended the suit. The defence of the appellants was that Smt. Sajja Bibi never gifted the property to the plaintiff, that the gift deed was a forged document, that Smt. Sajja Bibi was a parda nashin old lady of 85 years and not in her proper senses at the of the alleged gift, that the execution of the gift deed was not a free and voluntary act, and that, in any case, it was hit by the doctrine of Marzul Maut. It was further pleaded that, in any case, Smt. Sajja Bibi continued to reside in a portion of the house and to realise rents from the tenants till her death so that delivery of possession, consequent upon the gift, had not taken place with the result that the gift was void and ineffective as having never been acted upon. A plea that the suit was barred by Section 42 of the Specific Relief Act was also raised, but the written statement is conspicuous by the absence of any assertion that the appellants were in possession. I would like to add that there is no controversy now that the appellants Nos. 1 and 2 are respectively the brother's son and brother of Smt. Sajja Bibi and thus claim to be her heirs.

4. So far as the tenants, viz., defendants Nos. 4 to 6, are concerned, they denied the title of the plaintiff as also of defendants Nos. 1 to 3 and pleaded that they had been in adverse possession for over 22 years and had thus perfected their title by adverse possession.

5. A number of issues were framed out of which only two issues may be set forward as relevant for purposes of this appeal:

(1) Whether the plaintiff has acquired any right and interest in the house under gift deed dated 26-4-1935 ? Was the gift deed a free act of Sajja Bibi and is not lilt by the doctrine of marz-ul-maut?

(2) Is the suit barred by Section 42 of the Specific Relief Act? A perusal of the Order-sheet discloses a note of the learned Munsif, who framed the issues, that the issues mere read over and explained, that I no other issue or plea was pressed and that all other pleas, if any, had been given up. It may be noted that even though the plaintiff's case, as set forward in the plaint, was that the house in suit was in occupation of tenants, whereas the appellants' case, as set forward in para. 18