JUDGEMENT :- This second appeal has been filed against the judgement and decree passed by the learned District Judge, Jodhpur on Mar. 30, 1968 and arises in the following circumstances.

2. One Chaturbhuj had four sons, Sitaram, Ramlal, Kriparam and Dayaram. Sitaram had a son Chhotu, while Dayaram had a son Salehraj and Ramlal died issueless. Kriparam had two sons Nenji and Bastiram. Shivnarain, and Laxminarayan plaintiffs are the sons of NenJi, while their third brother Ganestual is said to have gone in adoption to Ramlal. Bastiram left his widow. Smt. Gauri, a son Arjunsingh and five daughters including Omkumari and Smt. Raji defendants. Arjunsingh who was, unmarried, died on July 17, 1952, leaving two houses situated to Mohalla Khanda Falsa at Jodhpur. After the death of Arjunsingh, the plaintiffs Shivnarain and Laxminarain asserted their claim in respect of the estate of Arjansingh Deceased on the ground of being his nearest heir, as they were Arjunsingh’s uncle’s sons. In one of the houses the upper storey was in possession of the plaintiffs, while the lower portion of the said house was in the possession of the defendants Smt. Omkumari and Smt. Raji, sisters of Arjunsingh. It was alleged in the plaint that after the death of Arjunsingh, the defendants occupied the lower portion of the house. The plaintiffs also obtained a letter of administration in respect of the property of Arjunsingh deceased from the court of District Judge, Jodhpur. But as the defendants refused to vacate the lower portion of the house in their possession in spite of notice, the plaintiffs filed a suit for recovery of possession and for mesne profits.

3. The defendants contested the suit in the ground that they were living in fee disputed portion since the time of their father Bastiram and that after coming into force of the Hindu Succession Act, 1955, they became full owners of the property being in possession thereof as the heirs of Arjunsingh. They also pleaded a custom to the effect that on the death of a person without any male issue or a widow, his daughters and sisters succeeded to the estate of the deceased, in preference to the nearest reversioners. It was also pleaded by the defendants that Nenji, father of the plaintiffs Shivnarain and Laxminarain, had gone in adoption to his maternal uncle Poonamchand in Samvat year 1941 and as such they had, no connection with the family of Arjunsingh and had no right in the, property left by deceased Arjunsingh. The trial court passed a decree for the recovery of possession in favour of the plaintiff-appellants, together with mesne profit @ 6 Rupees 5/- p.m. On appeal, the learned district Judge held that there was no satisfactory evidence on record to prove that a custom, as alleged by the defendants, existed in the Mali Community of Jodhpur. However, it was held that the adoption of Nenji by Smt. Sara, widow of Poonamchand, was proved. The learned District Judge held that the plaintiffs could not claim any right in the property of Arjunsingh and as such the appeal was allowed and the plaintiffs’ suit was dismissed.

4. The plaintiffs have filed this second Appeal in this Court and it is urged by the learned counsel for the plaintiff-appellants that the adoption of Nenji, father of the plaintiffs by Smt. Sara, widow of Poonamchand, was a myth and that there is no evidence on record to establish the identity of the person, who is said to have been adopted by Smt. Sara, as the father of the plaintiffs. Mr. Hastimal, appearing for the defendant-respondents, on the other hand, supported the judgement of the first appellate court on the question of adoption of Nenji, father of the plaintiffs, by the widow of Poonamchand. He also argued that the custom set up by the defendants is fully proved by the evidence on record. It was lastly contended by the learned counsel for the defendant-respondents that the defendants Omkumari and Smt. Raji were in possession of the disputed property as maintenance holders