Karamat Husain, J.
1. Dullam Bahelia sold a portion of a grove under a sale-deed, dated the 4th of October 1907. He was a tenant, of the aforesaid grove and the plaintiffs who are the zamindars of the village in which the grove is situate brought a suit for the cancellation of the sale-deed and for the possession of the portion of the grove sold. They in paragraph No. 4 of their plaint alleged that according to the general law in these, provinces they were the owners of the trees and in paragraph No. 6 they added that Dullam Bahelia died without issue in November 1907, and that they as zamindars were entitled to possession in proportion to their share. Among the pleas taken in defence were the following: The first was that according to the village custom the tenants have power to transfer the groves and trees' planted by them, and the second was that Musammat Dilmani, the mother of Dullam Bahelia, was alive and that the suit, therefore, was bad for non-joinder of parties. The Court of first instance came to the conclusion that the custom pleaded by the transferees was not established. Regarding the plea of non-joinder, the Court of first instance in its judgment remarked: 'Dulam has already sold the trees and there is no subsisting right in the trees, the mother of Dullam cannot be said to have any right in the trees and she is not a necessary party.' That Court decreed the claim in part. Ishar Dat under Section 544 of the Code of Civil Procedure appealed on behalf of all the defendants. The lower appellate Court reversed the decree of the Court of first instance coming to the conclusion that the custom entitling tenants to sell their groves is established. Regarding the plea of non-joinder the lower appellate Court in its judgment remarks that it was abandoned by the appellant. On the question of custom oral and documentary evidence was adduced on both sides. In respect of the oral evidence the learned District Judge says As is usual in such cases the oral evidence A is immaterial.' For the existence of the custom pleaded by the defendant, the learned 'District Judge relies on the wajib-ul arz of 1.862, which has been translated by the learned District Judge in his judgment as follows: In this village there are three baghs situated in our zamindari. And the produce thereof is enjoyed by us the planters and there are eleven scattered mango trees planted by the ryots. The produce of them is enjoyed by the tenants and if any tenant in the future plant a bagh or dig a pond it shall be done after asking our consent, but he shall not get thereby any title to own the soil. But as regards sale of bagh or tree he indeed shall continue to have power. It shall not be so with a tank Ac. and when he (the tenant) shall leave the village then we the zamindars will be owners of it.' The learned District Judge interprets the above clause of the wajib-ul-arz to be a record of custom. He remarks as follows: 'it appears that up to the time when this wajib-ul-arz was drawn up no bagh had been planted by the tenants but only eleven scattered mango trees. Still in this wojib-ul-arz no distinction is made between the rights appertaining to individual trees and to a cluster of trees, otherwise a bagh.' It appeal's, therefore, that a custom is recorded as having arisen whereby the tenants could transfer individual trees and this custom was held at the time of the framing of this wajib-ul-arz to extend also to the case of a bagh. As the principle involved is the same whether tree or bagh be sold, I cannot find that the treatment of the custom as covering the case of a bagh can be said to be unwarranted merely because up to that time no bagh according to the wajib-ul-arz had been planted by a tenant. I, therefore, hold that this wajib-ul-arz must be held to record a custom enabling tenants to sell a bagh planted by them.' Besides the wajib-ul-arz of 1862, two other documents were produced to establish the custom, a mortgage-deed dated the 25th of February 1879 and a sale-deed, dated the 6th of July 1904. The plaintiffs, in order to show that no such custom did exist in the village, produced the following papers: A wajib-ul-arz of 1840 and zamima khewat or a supplement of khewat for 1887. The question whether a custom is or is not established is a question into which I can go in second appeal see Ram Bilas v. Lal Bahadur 30 A. 3; 11 : A.W.N. (1908) 112 : 5 A.L.J. 456 : 4 M.L.T. 169. A careful consideration of all the documents and evidence adduced by the parties leads me to the conclusion that the custom claimed by the defendants is not established. There is no mention of any such custom in the wajib-id-arz of 1840, nor is there any trace of it in the supplement of khewat for 1887. The wajib-ul-arz of 1862 does not in terms record any pre-existing custom. The zainin-dars only allege what will happen in future if groves are planted by the tenants. With reference to the eleven scattered mango trees there is nothing in the -wajib-ul-arz to show that the tenants who planted them can sell them. The power of sale of the grove and the trees is confined to the groves, which may be planted, in future only. In the face of the two wajib-ul-arzes and the supplement of the khewat the one isolated mortgage-deed and the one isolated sale-deed are not, in my opinion, sufficient to establish a general custom. It is, however, argued by the learned Advocate for the respondents that his client is in possession and that the plaintiffs in order to succeed must establish a better title. Had the plea been taken in the first Court or in the written statement, it would have been a very good plea. But with reference to the pleadings of the parties, I am unable to entertain this plea which makes the case a new one at this stage of the litigation. The result is that the appeal is decreed, the decree of the lower appellate Court is set aside, and that of the Court of first instance is restored with costs.