The main legal point established in the judgment is the requirement for proof of the prevailing custom of adoption amongst Muslims of Tara Nagar and the importance of independent witnesses to establish its prevalence.

N.N. Mathur, J.-This special appeal is directed against the Judgment of the learned Single Judge dated 111.2002 refusing to interfere with the order of the Board of Revenue directing the trial Court to frame specific issue about the prevailing of custom of adoption amongst Muslims of Tara Nagar and decide the same after giving opportunity to both the parties for leading evidence regarding the issue and decide the same afresh in the suit filed by the 4th respondent Jayan Mohd. in the year 1972.

2. The following pedigree table will assist in understanding the facts of the case:-

Pahada I I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I I

Maula Bux Nang

I I - - - - - - - - - - - - - - - - - - - - - - - - - - - -

I I I I I I I I

Jayan Mohd. Rukandeen Kamardeen Sher Mohd

Phada had two sons namely Maula Bux and Nanag. Maula Bux had five sons namely Jayan Mohd. plaintiff , Rukandeen, Sher Mohd., Kamardeen and contesting defendant Allahdeen. The appellants are the legal representatives of Allahdeen.

Maula Bux died in Samvat Year 2027 and therefore, the 4th respondent Jayan Mohd. filed a suit in the Court of Assistant Collector, Rajgarh for partition of the agricultural land alleged to be the Khatedari land of Maula Bux. The particulars of the land are given as under:-

(i) Land falling in Khasra No.122 - 23 Bigha 8 Biswa

(ii) Land falling in Khasra No.123 - 8 Bigha 1 Biswa

(both lands falling in Taranagar)

(iii) Land falling in Khasra No.93 - 20 Bigha 10 Biswa

(iv) Land falling in Khasra No.94 - 18 Bigha 1 Biswa

(both lands falling in Village Sukhwasi of Taranagar Tehsil)

3. The suit was contested by Allahdeen. He filed a written statement taking objection to the effect that land falling in Khasra No.122 measuring 23 Bighas 8 Biswas of Taranagar, land falling in Khasra No.93 measuring 20 Bighas 10 Biswas and land falling in Khasra No.94 measuring 18 Bighas 1 Biswa of Village Sukhwasi of Tehsil Taranagar was Khatedari land of Nanaga. He claimed to be Khatedar of the said land being the adopted son of Nanaga. On the material controversy the trial Court framed as many as 12 issues and recorded evidence. The suit was dismissed by the Judgment and decree dated 01.03.1973. The plaintiff preferred an appeal against the said Judgment to the Court of Revenue Appellate Authority, Bikaner. In the opinion of the Revenue Appellate Authority there was no sufficient proof of custom of adoption. In view of the finding the learned Revenue Appellate Authority remanded the matter to the Assistant Collector, Rajgarh. After the remand some more witnesses were examined by the parties. While dealing with Issue No.4 the trial Court held that the suit land was initially entered in the revenue record in the name of Nanaga as Khatedar. The trial Court dealt with the Issue No.5 in depth and detail. The English translation of Issue No.5 is as follows:

“Whether the Respondent No.3 Allahdeen was the adopted son of Nanag and he being the sole heir the entire property in question devolved in him?”

4. After remand the 3rd defendant Allahdeen examined Nasir Khan as D.W. 6, Fateh Mohd. D.W. 7 and Noor Mohd. D.W. 8. It may be stated that initially he had examined himself as D.W. 1, D.W. 2 Abdula, D.W. 3 Aladeen, D.W. 4 Ibrahim and D.W.5 Karim. The defendant also produced certain documents including the adoption deed. On appreciation of oral and documentary evidence the trial Court held that the contesting defendant has failed to establish that he was the adopted son of Nanag, thus, decided the Issue No.5 against the defendant. The trial Court by Judgment dated 212.1985 decreed the suit holding that the plaintiff was entitled to 1/5th share in the suit property.

5. The contesting defendant Allahdeen preferred an appeal against the said Judgment and decree in the Court of Revenue Appellate Authority, Bikaner. The learned Revenue Appellate Authority specifically addressed himself on the Issue as to whether amongst Muslims there is a custom of a