1. The plaintiff's case, shortly stated, is as follows : In mouza Maida there were 61 bighas 15 cottas of nishkar lands which were included in old Register No. 115 and present Register Nos. 105-B and 4171-C of the Midnapur Collectorate. The said lands are included in Chak No. 1 of the thak map of Mouza Gaighatta with which Mouza Maida was measured at the time of the thak. The lands on actual measurement were found to be 64 bighas. At one time these lands, together with other lands, were the nishkar properties of one Ram Narain Pal and they were confirmed as lakheraj under a sanad dated 1876. Under some sort of compromise, the details of which are neither clear nor material eight annas of the said lands came to be in the possession of one Raja Sree Narayan Pal and the other I eight annas in the possession of one Narayan Pal and one Darpa Narayan Pal. Sree Narayan 'a wife Kshirode Mohini purchased the eight annas interest of Nara Narayan and Darpa Narayan under a kobala and in auction sale in Magh 1281 A.S. In Falgun 1281 A.S. she took a maurasi mokarrari lease from her husband in respect of the eight annas share of the latter. She remained in possession of the lands, eight annas in lakheraj right and eight annas in maurasi right till her death in Assar 1299 A.S.
2. On her death, in accordance with the custom obtaining in the family of Raja Sree Narayan Pal under which the eldest son succeeds to the estate of the father and the other sons to the exclusion of the daughter succeed to the estate of the mother, the two younger sons of Sree Narayan, namely, Monmatha and Pramatha, inherited their mother's interest in the said lands to the exclusion of the eldest son and an infant daughter. Monmatha and Pramatha sold their interest -in the lands to the plaintiff by kabalas dated 1322 A.S. and 1327 A.S. respectively and the plaintiff has since then been in possession of the lands, on getting his name registered in the Collectorate and by realizing rents from his tenants. Sree Narayan was also the zemindar of Mal Mehal Hariharpur, and he sold the said mehal to the Defendant No. 2 and obtained a patni settlement from the latter in. respect of the same. This patni right was subsequently acquired by the Defendant No. 1. The Defendant No. 2 has also acquired the lakheraj right in eight annas of the lands which Sree Narayan had therein. The result of these transactions is that while the Defendant No. 1 is the patnidar under the Defendant No. 2 in respect of the Mai Mehal Haribarpnr, the plaintiff has lakheraj rights in eight annas of the aforesaid lands in mouza Maida and maurasi rights in the remaining eight annas thereof under the Defendant No. 2 who has lakheraj rights in the said eight annas.
3. In the record of rights the said lands have been entered as being included in the Mai Mehal Hariharpur and as being the patni of the Defendant No. 1 under the Defendant No. 2 and, the Defendants Nos. 3 to 43, the tenants, have been recorded as the tenants of the Defendant No. 1 The plaintiff's case is that the aforesaid entry is wrong. He, therefore, instituted the suit out of which this appeal arises for a declaration as to the incorrectness of the entry and for certain other declarations, viz., that the lands are the lakheraj lands of old Register No. 115 and present Register Nos. 105-B and 4171-0, that he has got eight annas malikar right and eight annas maurasi rights in the lands, that the Defendant No. 1 has no patni right to the lands under the Defendant No. 2 as appertaining to his Mai Mehal Hariharpur, that the tenants Defendants Nos. 3 to 43 are tenants in respect of the said lands under him.
4. The Defendant No. 2, who is the only appellant before us and with whose defence only we are concerned here, pleaded in the first place that the lands, with the exception of certain specified plots were the lakheraj lands included in the registers as stated in the plaint. He next traversed the allegations in the plaint a to the acquisition of the eight annas interest by Nara Narayan and Darpa Narayan. He impugned the factum and validity of the transactions under which Kshirode Mohini acquired lakheraj interest in eight annas of the land from Nara Narayan and Darpa Narayan and the bona fides of the maurasi lease obtained by her from Sree Narain in respect of the remaining eight annas.
5. He denied the truth of the allegation regarding the custom of inheritance which was said to obtain in the family of Sree Narain. He challenged the plaintiff's title both upon the ground that the transactions upon which it rests are invalid, inoperative and insufficient and also upon the ground that neither he nor his predecessors, with the exception of Sree Narain had ever any possession. He asserted his own title to the sixteen annas of the lakheraj under the purchase of his father at an auction sale in execution of the decree which the latter had obtained against Sree Narain upon a mortgage of the lands by Sree Narain in his favour. He asserted that the fictitious transactions had been entered into by Sree Narain in order to save his interest from being sold away under the mortgage. He averred also that the lands were in his possession and that he had got his name entered in the Collectorate in respect of them. The Courts below have granted the plaintiff a decree embodying the declarations prayed for and set out above but in respect of the plots mentioned in the plaint with the exception of some specified plots, viz., with the exception of Plots Nos. 14, 15, 16, 17, 18, 28, 31 and 35 and half of Plots Nos. 13 and 129. The Defendant No. 2 has preferred this appeal, and the decree has been challenged on his behalf upon two broad grounds.
6. The first ground is to the effect that the plots in respect of which the plaintiff has obtained the decree have not been proved to appertain to the lakheraj grant under which the plaintiff claims. This contention, however, has no substance as the appellant in his written statement expressly admitted that all the plots mentioned in the plaint with the exception of Plots Nos. 14, 15, 16 and 17 and halves of Dags Nos. 13 and 129 which appertain to the Mai Mehal, were the nishkar lands of Sree Narain Pal. These plots as well as a few more which were proved in the suit to appertain to other lakheraj interest have been excluded from the decree.
7. The next contention of the appellant relates to the question of title. It has been urged that the plaintiff has failed to make out his title and that the appellant has, on the other hand, succeeded in showing that he is in possession of the lands under the purchase made by his father. So far as the question of title is concerned the plaintiff appears to have, by production of certified copies of kobalas Exs. 4 and 4 (1) - the originals of these documents being alleged to have been lost, proved that Kshirode Mohini purchased a half of the interest of Nara Narayan and Darpa Narryan in the lands and as regards the other half of the interest of these two persons there is no document under which that share passed to Kshirode Mohini. As regards the custom which was alleged on behalf of the plaintiff under which in the family of Raja Sree Narayan his eldest son and the daughter were excluded from inheriting Kshirode Mohini's estate with the result that her whole interest devolved on Monmatha and Promatha, the evidence that has been adduced falls far short of what is requisite to prove such a singularly uncommon family custom.
8. The most cogent evidence of custom, is not that afforded by the expression of opinion as to its existence but the examination of instances in which the I alleged custom has been acted upon and by the proof afforded by judicial or revenue records or private records or receipts that the custom has been enforced. Luchman Bai v. Akbar Khan  1 All. 440 Though judicial decisions are not indispensable, the acts required for the establishment of Customary Law ought to be plural, uniform and constant. Tara Chand v. Reb Ram 3 M.H.C. 50. In Maharanee Heeranath Kooer v. Baboo Burm Narain Singh 17 W.R. 316 it was laid down that to establish a family custom of descent, one at least of two things must be shown : either a clear distinct and positive tradition in the family that such custom exists in the family, or a long series of instances of anomalous inheritance from the family custom may be inferred. In the case of Ambalika Dasi v. Arpana Dasi  45 Cal. 835 it was held that even if a particular rule of succession has been actually followed in a family for a series of years, it cannot be treated as binding upon the family unless it had ripened into a family custom; that it must be shown that the custom had existed from time immemorial and where the custom set up is peculiar only to a single family this rule is more strictly enforced than ever.
9. Judged by these tests the evidence by which the particular custom which is alleged in the present case has been sought to be proved falls hopelessly short of the requisite, and it must be held that the custom has not been established. It follows, therefore, that plaintiff has succeeded in proving his title only to a moiety of the interest which belonged to Kshirode Mohini and no more.
10. The learned District Judge appears to have been of opinion that the lacuna in the plaintiff's title is made up by the evidence relating to his possession and that of his predecessors-in-interest. Such possession, the learned Judge has observed, has been proved as regards the whole of the property and not merely share thereof. If the plaintiff or his predecessors-in-interest had title not to the whole but to a share, their possession of the whole would only mean that their co-sharers were not in possession; but that would not enable the plaintiff to acquire a title to the whole unless the possession was to the exclusion of the co-sharers or adversely to them. There is no finding, however, that the possession of the plaintiff or his predecessors-in-interest was adverse or exclusive. The result then is that the plaintiff's title has been made out in respect of a half of maurasi rights in eight annas of the lands and one-fourth of the lakheraj rights in the other eight annas. (The judgment after considering an argument on facts proceeded.) The appeal thus succeeds in part but in the circumstances no order is made as to costs in this Court. The plaintiff will be entitled to the costs awarded to him by the decrees of the Courts below.
11. I agree.