JUDGMENT :

The defendant No. 1 in the suit is in appeal challenging the order of the High Court by which the suit dismissed by the learned Trial Court and the First Appellate Court has been decreed in Second Appeal.

2. The parties to the suit belong to the Kan No aura Tribe which is a Notified scheduled tribe under the Constitution (Scheduled Tribes Order 1950). The plaintiffs are the sons of Defendant No. 3, who sold the property to Defendant No. 1 who was a minor at the relevant point of time and was represented by his father i.e. Defendant No. 2. The pleadings and counter pleadings of the parties give rise to a simple issue which was summarised by the High Court in the following terms:

At the time of hearing learned counsel for the parties submitted that legality of transfer of land by deceased Defendant No. 3 in favour of Respondent-Defendant No. 1 is to be examined in the light of Wajib-ul-Arz Ex.P.G. It was relied upon at the time of hearing by both learned counsel in this case.

3. The learned Trial Court held that the Customary Law governing the parties recorded in a book known as "Wajib-ul-Arz" (Exhibit P.G) did Not prohibit the Defendant No. 3, the owner of the land, to effect the transfer. However, the same was Without any legal necessity. Hence the suit was dismissed. The plaintiffs filed an appeal before the First Appellate Court. The First Appellate Court while maintaining the finding With regard to the competence of defendant No. 3 to sell the land reversed the finding on the point of legal necessity. Accordingly, the decree of dismissal was maintained. In second appeal (upon remand of the matter) the High Court framed two substantial questions of law which are as follows:

1. When parties are admittedly governed by custom, was the First Appellate Court below justified in importing the doctrine of legal necessity under Hindu Law while dismissing the appeal of the appellants and such a finding is sustainable in the eyes of law?

2. In the absence of findings on Issue No. 8, which were recorded in favour of the appellants and against the respondents, having been challenged by the latter, since they were Not aggrieved from such findings, first appellate Court below was justified in passing the impugned judgments while setting aside the findings on such issue?

4. The High Court answered the Second Appeal by holding that under the Customary Law in force (Exhibit PG) the Defendant No. 3 was not legally competent to effect the transfer. Accordingly the suit was decreed.

5. We have heard the learned counsels for the parties.

6. Shri A.K. Sanghi, learned senior counsel appearing on behalf of the appellant-defendant has contended that the High Court in the impugned order had answered both the questions of law in favour of the defendant and therefore, the reversal of the decree of dismissal of the suit was Not justified. It is further argued that the High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure ought Not to have reversed the findings recorded by the learned Trial Court and the First Appellate Court on a re-appreciation of the evidence and materials on record. Exercise of jurisdiction in such a manner by the High Court was totally uncalled for. It is argued by the learned counsel for the appellant that the High Court in coming to its impugned findings had interpreted sub-clauses 9, 10 and 11 of Clause 30 of the Wajib-ul-Arz which deal With rights of widows in partition and rights of issues. Though the case had proceeded on a consideration of the aforesaid limited part of the Customary Law i.e. Clause 30, Shri Sanghi has drawn our attention to Clause 16 of the Wajib-ul-Arz to point out that in terms thereof there is No restriction on an owner of the land to transfer/alienate such land. It is, therefore, urged that having regard to provisions contained in Clauses 16 and 30 (Sub-clauses 9, 10 and 11), this Court ought to hold that the transfer of the land by Defendant No. 3 in favour of Def