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7. Being aggrieved, the defendants preferred Title Appeal No.5/1998 before the learned First Appellate Court, which has been allowed vide judgment and decree dated 07.06.2000, by holding that though the plaintiffs could prove the sale deed dated 26.07.1976 by exhibiting the same as Ext.-1, the contents of the said sale deed has not been proved, as neither the vendor nor the attesting witnesses have been examined. It has further been held that the sale deed being required to be attested by the attesting witnesses under the law, the same could not be proved by the plaintiffs, as none of the attesting witnesses has been examined as required under Section 68 of the Indian Evidence Act. Further finding of the learned First Appellate Court is that there being no partition of the land, the suit of the plaintiff for declaration of right, title and interest without praying for a decree for partition is not maintainable. It has also been held that though the defendants could not prove the gift deed dated 14.10.1980 (Ext.-Ka), since the parties are governed by Mohammedan Law, the ingredients to constitute a valid oral gift under the Mohammedan Law have been proved and hence the defendants have acquired right, title and interest by virtue of oral gift. The learned First Appellate Court has also declared the order dated 30.04.1986 passed by the learned Executive Magistrate declaring the possession in favour of the plaintiffs as invalid, on the ground that such a proceeding under Section 145 Cr.P.C. ought to have been entertained by the learned Executive Magistrate during pendency of the Civil suit. Hence the present appeal.

12. Relating to the third substantial question of law formulated, Mr. Chakraborty submits that since it is the pleaded case of the defendants in the written statement that they got the suit land by virtue of the gift deed dated 14.10.1980 (Ext.-Ka), the learned lower Appellate Court ought not to have held that there was a valid oral gift made by Haji Eba Sheikh in favour of the defendants, on the basis of the evidence adduced by them, such evidence is being contrary to the pleading, cannot be taken into consideration. According to the learned counsel, the defendants though pleaded that there was a registered gift executed in their favour by the original owner on 14.10.1980 (Ext.-Ka), the said gift deed could not be proved as required under Section 68 of the Indian Evidence Act, they having failed to examine at least one attesting witness though they are admittedly alive and subject to the process of the Court as well as capable of giving evidence.

23. The learned First Appellate Court has also held that an oral gift was made by Haji Eba Sheikh in favour of his sons, the defendants, and that all the ingredients to constitute a valid oral gift under the Mohammedan Law having been proved, the defendants acquired the right, title and interest in respect of the suit land by virtue of such oral gift. The learned First Appellate Court, however, while recording such finding has ignored the fact that the same was not the pleaded case of the defendants in the written statement. According to the defendants as pleaded in the written statement, they acquired the right, title and interest by virtue of a registered gift dated 14.10.1980, which is marked as Ext.-Ka.