This is a second appeal by plaintiff arising out of a suit brought by him against the defendant respondents for possession over the land described in the plaint. The plaintiffs case was that the property in dispute belonged to Mst. Sundri his mother, and on her death which took place sometime in or about the year 1995 he succeeded to it and that mutation had been made wrongly in favour of the reversioners of Lassi Dar, the last husband of Mst. Sundri. The suit was brought against Mst. Rahti who, according to the plaintiff, was the grand daughter of Mst. Sundri and the reversioners of Lassi Dar. The suit was contested by the reversioners. They contended that Mst. Sundri had only a life interest in the property and on her death it reverted to them as reversioners of Lassi Dar. They relied on a custom under which, according to them, the widow had only a life interest and on her death the property reverted to the reversioners of the deceased husband. The trial Court found that 2 kanals and 8 marlas out of the land in dispute was acquired by Mst. Sundri as Nautor and the rest of the property belonged to Lassi Dar. It, therefore, decreed the suit in respect of Nautor (2 kanals and 8 marlas) and dismissed it in respect of the-remaining land. Defendant appealed and plaintiff filed a cross objection. The lower Court allowed the reversioners appeal and dismissing the plaintiffs cross objection dismissed the suit. The plaintiff has come here in second appeal.

It has been contended on behalf of the appellant that the custom has not been proved. The defendant produced four witnesses, Ahmed Dar, Razak Bar, Rehman Dar and Jamal Dar. They have stated that the custom set up by the defendants exists. Their evidence is supported by the plaintiffs own witness Tarachand. The custom set up by the defendants is proved by the evidence of both the parties. It was contended by the learned counsel for the appellant that the issue in this behalf was not properly framed and that under the issue, as it was framed, the plaintiff was not required to produce any evidence to rebut the defendants case. The contention is without force. Under the issue the question was whether the defendants could succeed to the property as reversioners. They had set up a custom under which, they claimed, they could succeed to the property. The defendants could succeed to it only if the plaintiff could not succeed to it as an heir of Mst. Sundri. The plaintiff, therefore, had to rebut the defendants evidence about custom, as doing without so he could not get the property. But he has not produced any evidence. So the plaintiffs suit has rightly been dismissed with regard to the property which belonged to Lassi Dar to which Mst. Sundri had succeeded as a widow.

The rest of the property, 2 kanals and 8 marlas was Nautor. The question is whether this was the self-acquired property of Mst. Sundri or accretion to the property of Lassi Dar. There was no rule at the time when the land was broken up to show that the land newly broken up became accretion to the land already possessed by the person who broke it up. On the other hand, the rules then in force provided that even an inhabitant of a village who did not hold any land could break up new land. It was not necessary that only that person who was in possession of any land either as a tenant or as an Assami could break up new land. Mst. Sundri broke up the land sometime in the year 1979 and mutation was made in her favour in the year 1980. Mst. Sundri was then only an Assami. In 1990 proprietary rights were conferred on all Assamis and she became proprietor of this land. This property was acquired by her and would descend to her own heirs. The trial Courts judgment is right. It is, therefore, ordered that the appeal be partly allowed, the decree of the lower Court he modified and that of the trial Court for possession of the land be restored. The parties shall get-and pay costs throughout in proportion to their success and failure.

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