Harnam Singh, J.
1. Neki and Maru plaintiffs appeal under Section 100 of the Code of Civil Procedure from the decree passed by the lower appellate Court on the 2nd of June 1947.
2. Briefly summarised, the facts giving rise to Regular Second Appeal No. 191 of 1948 are these. On the 2nd of October 1945, Neki Mam and Bhartu instituted Civil Suit No. 293 of 1945 for the possession of the site in suit alleging that Hazari Lal being a non-proprietor in the village had no right to sell the land in suit to Puran Mal and Chandar Bhan.
3. Puran Mal and Chandar Bhan resisted the suit and on the peadings of the parties the trial Court fixed the issues set out hereunder:
1. Whether Hazari Lal defendant or his predeces-sors-in-interest occupied the site in suit as a 'raiyat' under the landowners of the village? If so, when and on what terms?
2. Whether Hazari Lal is and was a non-proprietor in the village?
3. If Issues Nos. 1 and 2 are proved whether Hazari Lal was competent to alienate the site of the suit property under custom?
4. Whether Puran defendant is a co-sharer in the 'shamilat'? If so, what is its effect?
4. On Issues Nos. (1) and (3) the Mal Court found for the defendants. On Issue No. 4, the Court found that in case Issues Nos. (1) to (3) had been found in favour of the plaintiffs they would have been entitled to joint possession of the site with Puran Mal, defendant No. 2. . In the result Civil Suit No. 293 of 1945 was dismissed with costs
5. Prom the decree passed by the trial Court on the 6th of December 1946, plaintiffs appealed in the Court of the Senior Subordinate Judge, Rohtak, under Section 96 of the Code of Civil Procedure, 1908. Finding that the non-proprietors of village Pahladpur were competent to alienate the sites on which their houses are built, the lower appellate Court dismissed the appeal with costs.
6. Bhartu plaintiff having died on the 12th of December, 1941, Neki and Maru plaintiffs have come up in second appeal to this Court from the decree passed by the Senior Subordinate Judge, Rohtak, on the 2nd of June 1947.
7. Mr. Ram Nath 'Malhotra', learned counsel for the respondents, urges a preliminary objection that the appeal was not filed in time.
8. Mr. Shamair Chand, learned counsel for the appellants, concedes that the appeal was not filed within time, but he maintains that the case is a fit one for action under Section 5 of the Indian Limitation Act, 1908.
9. In arguments it is said that though the appeal was decided by the Senior Subordinate Judge on the 2nd of June, 1947, the certified copy of the decree given to the appellants shows that the appeal was decided on the 25th of June 1947. The material portion of the certified copy of the decree-sheet is:
'Given under my hand and the seal of the Court, this 35th day of June 1947.'
10. Now, If the starting point of limitation for the appeal be the 25th of June 1947, the appeal was preferred within time, but if the starting point of limitation for the appeal be the 2nd of June 1947, the appeal was not preferred within time. Assuming without deciding that the time for preferring the appeal began to run on the 2nd of June, 1947, I think that counsel for the appellants was misled by the wrong recital in the certified copy of the decree as to the date when that decree was passed and that there was sufficient cause for not preferring the appeal within the period prescribed by Article 156 of the Indian Limitation Act, 1908. That being so, overruling the preliminary objection, I admit the appeal.
11. Turning to the merits, the sole point that has been argued in these proceedings is that defendants Nos. 2 and 3 have failed to establish that there was special custom., in village Pahladpur giving the right if alienation of the sites underneath their houses to the non-proprietors of that village.
12. Now, subject to the proof of special custom, the statement of general custom embodied in paragraph 236 of the Rattigan's Digest of Customary Law would govern the case. Paragraph No. 236 reads:
'236. In the absence of a well-established custom a non-proprietary resident in a village cannot dispose of the site on which his house is built, or a right of residence in the house, without the consent of the proprietors of the village, but he is ordinarily entitled to sell the materials, and the purchaser must remove the same within a reasonable period.'
13. That being the statement of custom, it was for the defendants to establish that the statement of custom embodied is paragraph 236 of the Digest did not govern the case. Mere acquiescence in previous sales does not in such a case imply a renunciation of the discretionary rights of the proprietors to object to a subsequent sale though the previous sales may furnish evidence of special custom under Section 13(b) of the Evidence Act.
14. From a perusal of the judgment of the lower appellate Court, it appears that the lower appellate Court has found for the defendants on the evidence given by Neki Ram, P.W. 2 Phule P.W. 3 and Exhibit D. 5. Mr. Ram Nath 'Malhotra' points out that Exhibits D. 4, D. 6 and D.W. 5/1 also furnish evidence of the existence of special custom in village Pahladpur. (After discussion of the evidence the Judgment proceeds:)
From what I have said above, it follows that there is no evidence in proof of the special custom pleaded by defendants Nos. 2 and 3.
15. For the foregoing reasons, I find that the Courts below were in error in finding that defendants Nos. 2 and 3 had proved the special custom pleaded by them.
16. Mr. Ram Nath 'Malhotra' urges that Puran Mal, being a proprietor in the village, the plaintiffs were not entitled to the exclusive possession of the site sold to Puran Mal. On this point counsel cites: 'KHEM STNOH v. MANGAL SINGH'. Am 1933 Lah 963. In that case Jai Lal, J., . (Abdul Kashid, J- concurring) said :
'The appellant, however, does not contest the validity of the general custom. On the other hand, his case is that though it is true that there is a custom that a non-proprietor is ordinarily incompetent to sell the site occupied by him, but in this case the vendees being proprietors in the village are not liable to be ejected because another rule of law which does not owe its existence to custom, must prevail and this rule is that one of the several proprietors of the common land is entitled to appropriate aportion of such land to his own use, provided, in doing so, he does not reduce the area required for the common purposes of the village so as to make the remaining area unfit or insufficient for such purposes, or provided he does not appropriate, for his own use land which has been set aside by the village for a particular purpose so as to divert it from that purpose.'
17. With very great respect I follow the rulelaid down in 'Khem Singh V. Mangal Singh',AIR 1933 Lah 963.
18. For the reasons given above, I allow theappeal, set aside the judgments and decrees of theCourts below and decree the plaintiffs' suit for theexclusive possession of the property sold to Chandar Bhan, but grant the plaintiffs' decree for thejoint possession of the property sold to Puran Mal(19) Having regard to the circumstances of thecase, I leave the parties to bear their own costs inthese proceedings.