G. M. LODHA, J. - (1.) THIS is a defendant's civil second appeal against the judgment of District Judge, Tonk, confirming the judgment and decree of Mun-siff Magistrate, Malpura, passed on 28. 8. 80.
(2.) THE respondent, hereinafter to be referred as plaintiff, filed a suit for possession in the court of Munsiff cum Judicial Magistrate, Malpura, against Hazi Akbar Ali (defendant No. l since deceased), Hasan Ali (defendant No. 2) and Abdul Hamid defendant No. 3 (since deceased and represented by appellants No. 2 to 6 ). THE suit was based on the allegations that in ward No. 5, Mohalla Saidan, Malpura there was a property exclusively belonging to defendant No. l Hazi Akbar Ali, details of which were given in para 1 of the plaint. It was further alleged that Hazi Akbar Ali sold the said property to the plaintiff for a consideration of Rs. 1000/- by a registered sale deed dated 12. 2. 69 and the sale deed was handed over to the plaintiff. On that date the plaintiff was made owner of the property and it was mentioned in the sale deed that possession may be handed over to the plaintiff. It was further alleged in the plaint that when plaintiff demanded possession from defendant Akbar Ali then he refused to handover the possession and in collusion with defendants No. 2 and 3 namely, Hasan Ali and Abdul Hamid retained possession of the disputed property. It was also alleged that defendants No. 2 and 3 have no concern whatsoever in the disputed house and they are trespassers on the property in dispute. Since the defendants had not handed over the possession, it had become necessary for the plaintiff to file the suit for possession. It was also alleged that the cause of action accrued to the plaintiff on 12. 2. 69 and on every day thereafter. THE plaint was got amended by the plaintiff lateron. Defendant No. l Akbar Ali filed a separate written statement and submitted that the disputed house is not one unit but in fact are two houses which are in possession of Hasan Ali and Abdul Hamid since 1948 as owners. Defendant No. 1 admitted the execution of the sale deed, but submitted that Hasan Ali and Abdul Hamid are not trespassers but they are in possession of the disputed property as owners for the last 21 years. The possession was not handed over to the plaintiff because he did not pay complete sale amount and as such the sale deed is null and void and ineffective. Defendants No. 2 and 3 namely, Hasan Ali and Abdul Hamid filed separate written statement and submitted that defendant No. l Akbar Ali had no right or authority to sell both the houses. It was submitted that Akbar Ali had no issue and as such he brought Hasan Ali, who happened to be his sister's son. at his house and he brought up Hasan Ali. Since Abdul Hamid's parents had died when Abdul Hamid was very young and as such Abdul Hamid was also brought by Akbar Ali to his house. It was further submitted that in the year 1948 when Akbar Ali's wife became seriously ill then in June, 1948 he made a gift of half portion of the disputed house situated on southern side to Abdul Hamid and half portion situated on the northern side Hasan Ali in the presence of neighbours and community people. From that day the disputed house was divided into two houses and, as submitted above, Abdul Hamid came into possession of southern side and Hasan Ali of northern side and both raised constructions from their pocket and since that date Akbar Ali had no concern in the disputed house. The facts as to why Akbar Ali executed the sale deed in favour of plaintiff were also mentioned. Thereafter the written statement was got amended and it was submitted that in any case the disputed property belonged to the maternal grand father (Abdul Rajak) of defendants No. 2 and 3 and the same had come to defendant No. l as ancestral property in which the defendant No. 2 and 3 had 1/4 the share each. The defendant also took the plea that the suit filed by the plaintiff was hopelessly time barred. After framing of the issue and recording of the evidence the trial court decreed the suit of the plaintiff which has been confirmed by the first appellate court. At the time of admission of this appeal, the following substantial questions of law were framed by the order of this court:- (1) Whether the courts below have committed serious error of law in not framing the issue regarding adverse possesion inspite of specific plea taken in the written statement and non framing of that issue has prejudiced the case of the appellants? (v) Whether issue No. 2 (B) to the effect whether the suit was barred by limitation was comprehensive enough to include the controversy regarding the adverse possession ? (vi) Whether the suit was hopelessly barred by time on the admitted facts in-as-much as the defendants have been in possession of the disputed property since 1948 and the suit was filed by the plaintiff on 28. 7. 69 and as such issue No. 2 (B) should have been decided against the plaintiff ? (viii) Whether the courts below have committed serious error of law in not giving any definite finding whether the suit was barred by time ? (viii) Whether an unregistered gift deed on oral gift coupled with the actual physical possession is legal and valid in the eye of law ? The main contention pressed by Mr. Lodha, is that the trial court committed serious error in not framing an issue regarding adverse possession. In any case, it was included in the issue of limitation. Lastly, it was argued that the amendment for taking plea of adverse possession should have been allowed. It was also argued that the oral gift is permissible and should have been accepted. Mr. Sharma, learned counsel for the respondent vehemently opposed the contentions of Mr. Lodha, learned counsel for the appellant. According to him after hearing detailed arguments on 2. 8. 84 by both the sides, this court did not think it proper to consider the question of rejection of amendment application as a substantial question of law and, therefore, it was not included in the questions mentioned in that order. Mr. Sharma also pointed out that plea of adverse possession is required to be taken specifically, and expressly, in clear and unambiguous terms. In the instant case, even after rejection of the application for amendment, objections was not taken in the grounds of appeal in the first appeal. It was then pointed out that the suit was within time and the appreciation of evidence on the question of factum of gift cannot be agitated in second appeal.
(3.) IN support of his contention, Mr. Lodha learned counsel for the appellant pointed out that in the written statement plea of limitation has been taken and in para 1 it has been mentioned that the defendants have become owners and that is enough. He also pointed out that under the proviso to subsection (5) of Section 100 C. P. C. this court can allow any other question to be argued, even though it has not been included in the questions framed under subsection (4 ). I have given my thoughtful consideration to the rival contentions of the learned counsel for both the parties. Reply to para 1- ********* It is true that the amendment application was moved and was rejected because the trial court was of the opinion that the plea would be inconsistent. ;