- (1.) 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. The parties to the suit belong to the Kannoaura 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 summarized 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.
(2.) 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
(3.) 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.;