Documents asserting or claiming a right or custom are admissible in evidence under Section 13 of the Evidence Act, 1872, even if the other party was not a party to the transaction.

C.P.Sinha, J.

1. The plaintiffs have filed this- appeal. They had brought the suit for recovery of possession and in the alternative for assessment of fair and equitable rent. The suit land is situated in village Gobindpur which is a Laheriasarai, and is comprised in survey plot No. 961, khata No. 247, having an area of 1 bigha 2 kathas 4 dhurs. Formerly, plaintiffs 1 to 6 who had an eight annas share, had instituted this suit, and the Maharajadhiraja of Darbhanga had been impleaded as defendant second party. Later on, the said Maharajadhiraja of Darbhanga was added as a plaintiff. The plaintiffs case was that the aforesaid plot was parti up to the time of the last earthquake in 1934, but, after the earthquake, with the permission of the plaintiffs, the Government had built temporary sheds over a portion of the plot. When things became normal, the Government sold the materials of the temporary sheds on the suit land in their existing condition and they were purchased by the defendant first party. The plaintiffs asked defendant 1 to vacate the land and remove the materials, but, instead of doing so, he started making alterations in the structures and did not vacate. There was also a prayer for mesne profits from 1937 to 1944.

2. Defendant 1 contested the suit mainly on two grounds (1) that the suit was barred by limitation, estoppel, waiver and acquiescence, and (2) that plot No. 961, the land in suit, besides other plots, were given as a rent-free fakirana grant to the ancestors of Akal Sah and others a long time ago by the then maliks. It is the second ground of defence with which we are concerned in this second appeal.

3. The first Court came to the following findings: (1) that several documents, namely, Exs. F. G. to G. 3 and L to L.14, which date from as far back as 1905, show that the predecessors- in- interest of the defendant dealt with the suit land, and the documents mentioned this land as a rent-free fakirana grant; (a) that there stands a Substantial building which must have taken at least a year to complete and that its appearance and other evidence on record left no room for doubt that it had been constructed more than 20 years ago; (3) that Mr. T. A. Freston I. C. S., the then District Magistrate of Darbhanga, sought the permission of the defendant to build temporary huts on the suit land after the earthquake (exhibits E series); (4) that respectable witnesses were examined on behalf of the defendant to show that they resided in the house on the land in suit as tenants more than 12 years ago; and (5) that in the Collectorate partition of the tauzi, which took place in 1939, the Batwara Deputy Collector found the possession of the defendant over the suit land and recorded his possession over it and disallowed the objection of the plaintiff second party, namely, the Maha-rajadhiraja of Darbhanga (Exhibit L). After having found the possession of the defendant over the suit land, the learned 3rd Additional Subordinate Judge held that the defendant had acquired an indefeasible right to remain in possession of the suit land and that the plaintiffs claim for possession was barred by time, estoppel, waiver and acquiescence. In regard to the question whether the suit land was a fakirana rent-free grant, the learned Subordinate Judge found that the defendant claimed a rent free grant to the knowledge of the plaintiffs for the first time in the year 1939 during the Collectorate partition and that, therefore, the suit having been brought within 12 years of that date, the plaintiffs claim for assessment of fair and equitable rent was not barred and, in that view of the matter, a fair and equitable rent was assessed at the rate of Rs. 5 per katha. It is to be mentioned that the document filed by the defendant did not mention the plot number as 961, the plot in suit, but they mentioned plot Nos. 957 and 958, and the plaintiffs contended that those documents did not relate to the land in suit. But it was found on a compa