Teja Singh, J.
1. In order to be able to understand the point involved in this appeal it is necessary to set out briefly the facts. Mt. Sahib Kaur, widow of Budhu, a Johal Jat of village Dhaleke in the District of Ferozepore, died leaving behind her considerable area of land. The Sub-Divisional Officer, Moga, by his order dated 9th August 1932 mutated the entire land in favour of the proprietors of Patti Chela, in which the land was situate. Some of the proprietors of the patti appealed to the Collector alleging that they were the collaterals of Mt. Sahib Kaur's husband and consequently they were entitled to the land in preference to the other owners of the patti. The Collector rejected the appeal, but by his order of 23rd January 1938 directed that the land be mutated in favour of the Crown. His reasons for doing so were that Mt. Sahib Kaur had not left any legal heirs and so the land which stood in her name must escheat to the Crown.
2. The suit out of which this appeal has arisen was instituted by Jowala Singh and Bishen Singh, two of the Johal Jat proprietors of Patti Chela on 22nd March 1945. It was a suit in a representative capacity and the plaintiffs prayed for permission to conduct it On behalf of all the Johal Jat proprietors of the patti. The permission was duly granted. The allegations of the plaintiffs were that they were entitled to succeed to the suit land on Mt. Sahib Kaur's death, first because they were the collaterals of her husband and secondly because they were the descendants of the original founder of the patti in which the land was situate. In the alternative they alleged that even if Mt. Sahib Kaur should be taken to have died heirless, the land could not escheat to the Crown and according to custom it must go to the patti and be divided among all the persons on whose behalf the plaintiffs were suing, because they were the proprietors of the patti. The defendant denied the plaintiffs' right and resisted the suit also on the ground of limitation. The trial Court framed the following two issues:
(1) Whether the plaintiffs were dispossessed of the suit land within 12 years of the suit and whether the suit is within time?
(2) In case the above issue is found for the plaintiffs whether the plaintiffs are the heirs of Mt. Sahib Kaur?
It also framed a third issue regarding the relief.
3. The first issue was left undecided, but the plaintiffs' suit was dismissed with costs, because the trial Court came to the conclusion that the plaintiffs had not been able to prove the second issue.
4. The plaintiffs preferred an appeal to the Court of the District Judge from the decree of the trial Court. It appears that the counsel who argued the appeal on their behalf confined himself to the question of custom and in order to substantiate his contention that when a person dies without leaving any heirs his land goes to the owners of the patti in which it is situated, he cited the Manual of Customary Law of the District compiled in 1914, The District Judge, however, refused to allow the counsel to refer to the Customary Law on the ground that it had not been relied upon in the Court below and disallowed the appeal. The plaintiffs have now come to this Court in second appeal.
5. The exact words used by the learned District Judge are as follows:
In arguments in appeal the learned Counsel for the appellants attempted to rely on Question No. 63 of Currie's Customary Law of the Ferozepore District prepared in 1914. As pointed out by the learned Sub-Judge, however, in the lower Court the plaintiffs did not rely on the Customary Law of the District, their claim being on the contrary based on the wajib-ul-arz and the statement of the proprietors in the Tent Shijra. This being so, the appellants cannot be permitted at the appellate stags to put forward what amounts to fresh pleadings and their case must stand or fall on the pleadings themselves and the evidence produced in support thereof. As no copy of the documents relied on was produced, the plaintiffs' case on this point must fail.6. The learned District Judge made a fundamental mistake in thinking that the plaintiffs' suit was based upon the wajib-ul-arz and the statement of the proprietors appearing under the pedigree-table, whereas the basis of the suit was custom and the two documents mentioned above were referred to as evidence of the custom. It must be remembered that Customary Law of the Punjab is an unwritten law and when a party relies upon a particular custom, he is required to prove it by evidence. The evidence may consist of instances in which the alleged custom was asserted or followed, or of public records, e.g. wasjib-ul-arz and riwaj-i-am, containing the statement of the custom. As regards the preparation of the public records and the value of the statement of custom contained therein, reference is invited to the observations made by Roe, J. in Gujar v. Shamdas (1987)107 P.R.1887. After pointing out that the Punjab Civil Code was the first attempt under British rule to publicly expound the Customary law, he observed as follows:
The next exponents of custom were the Settlement Officers, who made the first Records of Rights, which include the Wajib-ul-Arz, which is intended to be the exponent of village custom. These records were prepared after such careful enquiry that, by the Punjab Land Revenue Act, entries in them have a legal presumption of truth....Then the learned Judge said:
Some thirty years have passed since these first records of custom were prepared, and at the revised Settlements, the Customary law has been embodied, not in a Wajib-ul-Arz having a technical value under the Land Revenue Act, but in a general record of custom, called the Riwaj-i-Am. These records contain the answers of the leading men, of all the Lambardars, and of any others who choose to attend of the various tribes residing within a convenient distance of the place of assembly. The recorded opinions of these men are admissible under Section 32(4), Evidence Act....7. In several appeals from Allahabad and Oudh their Lordships of the Privy Council held that the statement of a custom recorded in a wajib-ul-arz of a village is good prima facie evidence of the custom without corroborative evidence of instances in which it has been exercised : see inter alia Digambar Singh v. Ahmad Sayeed Khan 1 A.I.R.1914 P.C.13 and Sheo Baran Singh v. Mt. Kulsumunnissa 14 . The ratio decidend of these decisions is equally applicable to the case of a riwaj-i-am in the Punjab which is somewhat a similar document. Moreover, though in early times the wajib-ul-arz in the Punjab contained a statement of the custom, this is no longer the case and the custom is now recorded in the riwaj-i-am of the Tehsil and District. In Mt. Vaishno Ditti v. Mt. Rameshri 15 A.I.R.1928 P.C 294 Sir John Wallis, who delivered the judgment of the Judicial Committee, made the following observations regarding the value to be attached to the Manuals of Customary Law that are prepared for every District under the orders of the Government:.it has been rightly held in the Lahore Court in the case above mentioned that, where a custom is alleged a duty is imposed on the Courts to endeavour to ascertain the existence and nature of that custom; and the Local Government has come to their assistance by establishing a Rlwaj-i-Am or record of custom in the different parts of the Punjab, including the North West Frontier Province which 'was formerly included in it. It has been held by this Board that the Riwaj-i-Am is a public record prepared by a public officer in discharge of his duties and under Government rules; that it is clearly admissible in evidence to prove the facts entered thereon subject to rebuttal; and that the statements therein may be accepted, even if unsupported by instances: Beg v. Allah Ditta A.I.R.1916 P.C.129 and Ahmad Khan v. Mt. Channi Bibi .Later on his Lordship observed:
Futher, manuals of customary law in accordance with the Riwaj-i-Am, have been issued by authority for each district, and in their Lordships' opinion standi on much the same footing as the Riwaj-i-Am itself as evidence of custom.
8. In Saleh Mohammad Shah v. Zawar Hussain , which was a case from Jhang District, their Lordships of the Privy Council remarked that the Manual of Customary Law was prima facie to be regarded as the most accurate and fully considered statement of the long-standing custom. Since these manuals are now available for citation, the fact that a party does not refer to them either in his pleadings or in the list of documents relied upon cannot prevent him from relying upon them at the time of arguments. It is of course corrrect that the evidence of custom so afforded by the riwaj-i-am is well as by the Manual of Customary Law is not conclusive and it is always open to the other side to rebut it, and if a party's case be that since the Customary Law was not relied upon at the proper time, he has been taken by surprise and he should therefore be given an opportunity of producing evidence in rebuttal, the Court will consider the request on its merits. But the reason why the learned District Judge disallowed the production of Customary Law in this case was altogether different and was, in my opinion, wrong. In Atta Mohammad v. Fateh Mohammad A.I.R.1930 Lah.900 it was held that where a reference is made to the Manual of Customary Law for the purpose of proving a custom, the mere absence of copy of raiwaj-i-am on the record was immaterial.
9. Now the Question and Answer 63 of Currie's Manual of Customary Law of the Ferozepore District of 1914 read as follows:
Question -- Enumerate in the order of their succession the persons entitled to the estate of a man who dies intestate, leaving no relations?
Answer -- The property will first become shamilat thulla; if there are no thullas shamitat patti; if there are no pattis, shamilat deh.
It was not alleged in this case that there were any thullas in the village. Accordingly the suit land must go to the patti and must be divided between the owners of the patti as if it were shamilat of the patti. Mr. Bishen Narain, learned Counsel for the respondent, contended that there were other owners of the patti than the Johal Jats, on behalf of whom the plaintiffs instituted the suit. But no such defence was raised in the trial Court and this being a question of fact I do not think it can be allowed to be raised at this stage. My opinion therefore is that the plaintiffs and the persons on whose behalf they sued were entitled to succeed to the land in accordance with the custom.
10. Now as regards the question of limitation. The plaintiffs' case was that they were dispossessed within twelve years of the date of the suit. There was no definite evidence on this point, but taking into consideration the fact that the mutation in favour of the Crown was sanctioned by the Collector on 23rd January 1933 and before that the land stood in the name, and was in possession, of the plaintiffs, their dispossession could have taken place only after 23rd January 1933. It is in evidence that the plaintiffs gave a notice to the Deputy Commissioner under Section 80, Civil P.C., on 20th January 1945 and the law is that they were entitled to deduct two months on account of the notice from the period of limitation. Accordingly the suit which was instituted on 22nd March 1945 is within time.
11. In the result I would allow the appeal, set aside the judgments and the decrees of the Courts below and grant the plaintiffs a decree for possession of the suit land with costs throughout.