JUDGMENT Arun Kumar God, J. —This is plaintiffs appeal against the judgment and decree passed by Additional District Judge (1), Shimla, whereby the decree passed by the trial Court dismissing the suit of the plaintiffs, has been upheld. Bharat Bhushan (hereinafter referred to as the defendant) is the transferee of the land measuring 1-2 0 bighas (hereinafter referred to as the suit land) by the father of the plaintiffs Niranjan Singh (hereinafter referred as the defendant No. 3), Girdhari Lal (hereinafter referred to as the defendant-2) is the father of Bharat Bhushan transferee 2. Sale effected by defendant No. 3 of the suit land in favour of defendant No.1 came to be questioned by the plaintiffs on the basis that the said property being ancestral in nature could not have been transferred by defendant No. 3 either under law or custom governing such alienation According to the plaintiffs their father defendant No.3 was holding enough agricultural land besides having rental income and salary while he was employed in I.T.B.P. and above all he was having an apple orchard which also yielded income to him, therefore, there was no justification of the transfer effected by him in favour of defendant No. 1 Further case of the plaintiffs was that Girdhari Lal defendant No. 2 who is father of defendant No 1 was a close relation of defendant No 3 had obtained the sale deed after exercising under pressure upon the said defendant in favour of his son i.e defendant No. 1. It was also pleaded by the plaintiffs that the consideration of Rs. 1000 shown in the sale deed was sham and in fact nothing has been paid to defendant No. 3. 3. The suit was contested and resisted which according to the defendants was bad for mis-joinder of parties and the same has not been properly valued for the purpose of court fee as also not maintainable in its present form. Flea of land being ancestral raised by the plaintiffs was controverted and the sale was pleaded to be for legal necessity. According to the defendants the sale consideration of Rs. 1000 was correctly shown in the sale deed and the money was urgently required by defendant No. 3 and his wife for raising an orchard at Village Tellingi. Flea of land being ancestral raised by the plaintiffs was controverted and the sale was pleaded to be for legal necessity. According to the defendants the sale consideration of Rs. 1000 was correctly shown in the sale deed and the money was urgently required by defendant No. 3 and his wife for raising an orchard at Village Tellingi. Not only this but since defendant No. 3 wanted to construct a building at Peo a sum of Rs 5000 more was advanced to defendant No. 3 on 14-4-1973. The suit was claimed to have been got filed by Niranjan Singh from his so is through his wife and thus it was pleaded to be collusive. Whereas defendant No 3 in his written statement admitted that the laud in suit was ancestral in nature arid sale was not aimed at defeating the legitimate clam of the plaintiffs. 4. in replication filed by the plaintiffs to both the written statements, pleas raised on behalf of the defendants were controverted and parties went to trial oh the following issues ; 1. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPP 2. Whether the suit is bad for misjoinder of parties and causes of action as alleged ? OPD 3. Whether the suit does not lie in the present forms a alleged ? OPD 4. Whether the relevant law and the custom under which this suit is maintainable has not been mentioned in the plaint and if so to what effect ? OPD 5. Whether the land in suit is ancestral qua the plaintiff and defendant No. 3 Narayan Singh and as such the same could not be sold by defendant No. 3 as alleged ? OPP 6. If Issue No. 5 is proved, whether the sale deed dated 17-1-1973 and the mutation No 2010, dated 22-6-1973, in the name of defendant No. 1 in respect of land In suit are liable to be cancelled ? OPP 7. Whether the sale price which was already paid is Rs. 6000 instead of Rs. 1000 as alleged and if so to what effect ? OPD 8. Whether the land ia suit was sold without the legal necessity and without consent of the plaintiffs guardian and against the interest of the plaintiff as alleged and if so, to what effect ? OPD 9. Whether the suit is collusive, as alleged ? 6000 instead of Rs. 1000 as alleged and if so to what effect ? OPD 8. Whether the land ia suit was sold without the legal necessity and without consent of the plaintiffs guardian and against the interest of the plaintiff as alleged and if so, to what effect ? OPD 9. Whether the suit is collusive, as alleged ? OPD 10. Relief. Issues No. 1, 5 and 7 were held in affirmative while holding the land to be ancestral under Issue No. 5 it was further held that the local custom does not bar alienation thereof, under Issue No. 8 it was held that alienation was made without legal necessity, Issues No. 2, 3, 4, 6 and 9 were held in the negative and finally under Issue No. 10 the suit of the plaintiffs for declaration and permanent injunction was dismissed. 5. The judgment and decree of the trial Court dismissing their suit was questioned in appeal by the plaintiffs where it met the same fate except that findings on Issue No. 8 were reversed while dismissing the appeal and upholding the judgment and decree of the trial Court, hence this appeal. 6. Matter had been heard and judgment was reserved on 16-7-1997. However, while going through the file it transpired that certain points need to be clarified for which clarification was sought from the learned Counsel appearing for the parties 7. It is not in dispute that parties to the case belong to a scheduled tribe notified under the Constitution (Scheduled Tribes) Order, 1950, as notified by the President of India after consultation with the Governor of the State concerned, Himachal Pradesh in the present case in accordance with Article 342 of the Constitution. In para V of this order of 1950, entry No. 5 refers to Kanaura, Kinnara. In this view of the matter, there is no controversy between the parties regarding their being Kinnaura, notified scheduled tribe. 8. Shri Bhupender Gupta, learned Counsel appearing for the plaintiffs has vehemently urged that both the courts below have fallen into error as well as committed serious illegality by not only mis-reading and misconstruing the statements of Tej Ram (PW-1), Girdhari Lal (DW-2) but all by ignoring documentary evidence on record particularly Ex. PG an extract from Wajub-ul-Arz which governs the alienation of the type which is the subject matter of the present case. PG an extract from Wajub-ul-Arz which governs the alienation of the type which is the subject matter of the present case. On the other hand learned Counsel appearing for the respondents have while controverting the submissions of Shri Bhupender Gupta, pointed out that the findings recorded by the courts below are legally sustainable besides being based on proper and legal examination of the evidence on record, as such, the present appeal is devoid of any merit. In addition to this, it was also urged while opposing this appeal that even if the findings art erroneous as recorded by the courts below while dismissing the suit of the plaintiffs, even there is no question of law much less substantial question of law involved in the peasant appeal which may warrant interference, therefor, on this ground also dismissal of the appeal was prayed for. Further it was pointed out that neither law nor custom, even if it be assumed for the sake of argument governing alienation as in the present case, prohibited transfer of property like the present one whether it was ancestral or not and lastly, it was pointed out that custom has not been proved, therefore, if the plea of the plaintiffs is accepted as raised in the suit, the same has been rightly dismissed by both the courts below. 9. In order to properly appreciate the respective submissions, evidence in brief both oral as well as documentary needs to be referred to from the record. 10. Another fact which may be noticed here is that since Ex, PG i.e. copy of Wajub-ul-Arz was in Urdu, therefore, an accepted correct translation thereof has been taken on record of this case under the signatures of both the learned Counsel who appeared in this appeal and it forms a part of the record of this appeal. Clause 10 of Ex. PG is material for the determination of the present appeal, which is to the following effect :— [* * *] The next question that needs consideration is as to whether this clause firstly governs the alienation which was subject matter of the present case and secondly if so whether it has been proved on record that the parties are governed by it. In the event of the answer to these questions being in the negative dismissal of the suit of the plaintiffs has to be upheld. 11. In the event of the answer to these questions being in the negative dismissal of the suit of the plaintiffs has to be upheld. 11. When reference is made to the statement of Tej Ram (PW-1), he has categorically stated that as per custom of District Kinnaur his father could not have sold the property without legal necessity and even then it could not have been sold without the consent of the plaintiffs. He has further placed on record a copy of Wajub-ul-Arz Ex PG and in cross-examination he has stated that the custom of Kinnaur is in Wajub-ul-Arz, whether it contains the entire custom of Kinnaur, according to him he is not in a position to state. To similar effect is the statement of PW-2 Dalip Singh All the three PWs even PW-1 Tej Ram, PW-2 Dalip Singh and PW 3 Sohan Singh have categorically stated that Niranjan Singh defendant No. 3 was employed in I.T.B.P. who had enough land, I besides an orchard, he had enough income from both i.e. orchard as well as his lands in addition to his salary, as such, there was no necessity for him to have sold the suit land to defendant No. 1 12. On the other hand DW-2 Girdhari Lal father of defendant No. 1, has specifically admitted that in Kinnaur the transfer of property is done in accordance with Wajub-ul-Arz and not under Hindu religion. Sale was made by Niranjan Singh defendant No. 2 in favour of Bharat Bhushan defendant by means of sale deed Ex PD-2/A (?) as for back as on 26-1-1973, Other evidence has been led by the defendants No. 1 and 2 to show that money was urgently required by Niranjan Singh for raising of orchard. Suggestion of the plaintiff that Niranjan Singh did not require money for extension of his orchard and construction of building was denied by DW-2 Girdhari Lal. In addition to this, statement of PW-6 Sadabar and DW-7 Midal Singh were got recorded by the defendants to show that alienation made by certain other persons were not questioned as being claimed by the plaintiffs. 13. This is the entire material evidence for the determination of the present appeal. In addition to this, statement of PW-6 Sadabar and DW-7 Midal Singh were got recorded by the defendants to show that alienation made by certain other persons were not questioned as being claimed by the plaintiffs. 13. This is the entire material evidence for the determination of the present appeal. In the face of the evidence examined on behalf of the plaintiff as well as admission of none else but defendant No. 2 Girdhari Lal (who had purchased the land in the name of his minor son Tej Ham defendant 1 during his minority) regarding the matter of alienation in Kinaur District being governed in custom, both the courts had fallen into error by holding to the contrary It is not his case that when alienation by means of Ex. PW-2/A was effected by Niranjan Singh in favour of defendant No.1, plaintiffs, who are admitted sons of Niranjan Singh were not born. Further clause 10 did not create any distinction in respect of ancestral or non-ancestral properties. Property could only be alienated by the owner during his life time in favour of his daughter by way of gift and he could also will away the same to her, Admittedly, transfer in favour of defendant No.1 is not covered under this exception of clause 10 of Ex. PG. 14. So far non proof of custom alleged on behalf of the defendants is concerned, admission of DW-2 itself belies the same. Legal necessity is a spicie of Hindu Law which in view of the discussion made herein above does not govern the present case. Next coming to the plea raised on behalf of the defendants that even if the findings recorded by the trial Court are held to be erroneous, those call for no interference, this plea has no merit both on appreciation and examination of evidence as well as on account of the fact that the present appeal is governed by paragraph 32 of H.P. (Courts) Order, 1948 and not under section 100 of the C.P.C. So far the present appeal is concerned, it will be governed by the said Order of 1948 and not by section 100 of the C.P.C. as amended by Central Act No. 104 of 1976 which came into force with effect from 1-2-1977. Under para 32 of the Himachal Pradesh (Courts) Order, 1948 a second appeal is maintainable on question of law as well as fact as such this court is not precluded from examining the evidence and/or appreciating the same. Might of appeal under this Order of 1948 could not be taken away by Central Act 104 of 1976 unless there was either any express provision or necessary intendment in that behalf, thus the appeal as in the present case shall be governed under the law which was prevailing when the suit was filed Parties are not at variance that in the instant case the suit has been filed as far back as in 1974 when Himachal Pradesh (Courts) Order, 1948 governing the same. For taking this view, reference can be made to a Division Bench judgment of this court reported in case Niranjan Singh v. Durga Doss, Indian Law Reports (Himachal Series) (1977) 640. Even on examination of evidence, I have no hesitation in holding that both the courts below have completely misread and misconstrued, the evidence examined by the plaintiffs and they thus fallen into error, therefore on this ground also the impugned judgment and decree is not sustainable. Thus, it is clear that from whatever angle the case of the plaintiffs may be examined, the present appeal is liable to be allowed No other point has been urged by learned Counsel for the parties. 13. As a result of the aforesaid discussions, the present appeal is allowed and consequently the suit of the plaintiffs is decreed thereby sale deed dated 26-1-1973 registered at Serial No 3/73 on 27-1-1973 in the office of Sub-Registrar Kalpa is hereby declared to be null and void as also mutation No 2010, dated 22-6-1973 of this sale is quashed and set aside and consequently it is further held that the plaintiff is entitled to vacant possession of the suit land. Decree be drawn up accordingly. Costs on the parties. Appeal allowed