JUDGMENT - A.B. PALKAR, J.:---This is plaintiffs appeal filed against a decree dismissing his suit for possession on the basis of title in pursuance of his adoption by one deceased Gangavva, the wife of Gurubasappa Arali. 2.The suit property consists of one shop premises situate in the Taluka of Jat, at Jat Ward No. 3. Gram Panchayat Building No. 446 described with the necessary particulars in the plaint. According to the plaintiff, the suit shop belonged to deceased Gurubasappa Pamunappa Arali. He died long back and his property devolved on his wife deceased Gangavva who was the only heir at law to deceased Gurubasappa. Gangavva died on 11th October, 1978. As Gurubasappa and Gangavva had no issue. Gangavva decided to adopt the plaintiff after the death of her husband, according to the desire expressed by him during his life time, and therefore, she adopted present plaintiff. Plaintiffs natural father Gurulingappa gave plaintiff in adoption to Gangavva on 8th June, 1970. The adoption ceremony was performed as per the custom and religious rites and deed of adoption was registered on 10-6-1970. 3.The plaintiff was aged more than 15 years at the time of said adoption. However, the plaintiff belongs to lingayat community and in the said community there is a custom prevalent, according to which, a boy above the age of 15 years can be taken in adoption and in pursuance of this custom, the plaintiff was adopted by deceased Gangavva after the death of her husband. The plaintiff has become the owner of the suit property after the death of Gangavva being the only son (adopted) of Gangavva. 4.The defendant is the grandson of Gangavva's sister. He wanted to carry on grocery business, and therefore, the suit shop which was lying vacant was given to him as a licence, and he was permitted to carry on the business in the said shop some time from the year 1974. This licence was cancelled by a notice dated 25-4-1979 as the defendant failed to hand over the vacant possession, and the plaintiff is compelled to file this suit. 5.As against this, the defendant filed his written statement and denied that the plaintiff was adopted by deceased Gangavva. According to the defendant, as the plaintiff was more than 15 years age at the time of said adoption, he could not be adopted and the said adoption, if any, is abinitio void and illegal. 5.As against this, the defendant filed his written statement and denied that the plaintiff was adopted by deceased Gangavva. According to the defendant, as the plaintiff was more than 15 years age at the time of said adoption, he could not be adopted and the said adoption, if any, is abinitio void and illegal. There is no custom of taking a child of more than 15 years in adoption in the community to which the plaintiff and defendant belong. Gangavva was an old lady and she was not in a position to look after the entire property. She therefore, gave Power of Attorney to one Chandrashekhar Mallappa Bijargli and he was looking after that property. Gangavva had borrowed about Rs. 13,000/- from the defendant for her maintenance and for litigation expenses on 1-8-1976. She also borrowed Rs. 2,000/- more from the defendant and at her instance the power of attorney holder Chandrashekhar executed an agreement of sale for the consideration of Rs. 15,000/- which were advanced by the defendant to deceased Gangavva, and in pursuance of the said agreement, possession of the suit shop was given to the defendant. Sale deed was to be executed as per the convenience of the parties. 6.After the death of Gangavva, defendant repeatedly requested the plaintiff to perform the contract by executing a sale deed, but the plaintiff never executed sale deed, and defendant is, therefore, intending to file a suit against him. The suit is, therefore, liable to be dismissed. Although, it is not specifically pleaded, it is obvious that the defendant is in possession of the suit shop in pursuance of the contract of sale and his possession is protected in view of the provisions of section 53-A of the Transfer of Property Act. 7.On these pleadings the issues were settled by the learned trial Judge, and after scrutinising the oral and documentary evidence and after hearing the arguments, the learned trial Judge came to the conclusion that although, the factum of adoption was proved, the plaintiff failed to prove the custom of adoption of a child above the age of 15 years, and as such the adoption was not legal and valid. The defendant was in possession of the suit property in pursuance of the contract of sale, and cannot, therefore, be dispossessed. The defendant was in possession of the suit property in pursuance of the contract of sale, and cannot, therefore, be dispossessed. 8.In this Court, the appellant is represented by learned Counsel Shri K.J. Abhyankar whereas on behalf of the respondent argument was advanced by learned Counsel Shri N.V. Bandiwadekar. I have considered the argument advanced by the learned Counsel for the appellant in order to examine the plaintiff's claim which is based on his being adopted son of deceased Gangavva. It is necessary to see as to whether plaintiff has proved the adoption and the custom of a child of more than 15 years being allowed to be adopted in the particular community to which the parties belong. In his evidence, the plaintiff has stated that he was 24 years old at the time of adoption. Adoption ceremony was performed. The learned trial Judge held that the factum of adoption was proved and this finding is not seriously challenged before me, and therefore, I am not going to refer to the evidence in respect of the ceremony of adoption. What is material to be considered is whether plaintiff has proved that there was such custom prevalent in their community in pursuance of which he was adopted, and therefore, section 10(6) of the Hindu Adoptions and Maintenance Act does not come in his way, and the adoption is legal and valid. In his examination-in-chief the plaintiff has merely stated that in their community a boy of any age can be adopted, and gave an example that one Sidappa Bijaragi had gone in adoption when he was 19 years of age. Apart from this, the plaintiff has not stated anything further in his own evidence. He examined Sidappa Bijaragi (P.W. No. 2) who has no doubt stated that he was adopted by his uncle Gurudasappa in the year 1953 when he was 21 years of age. However, he did not produce adoption deed and has stated that original adoption deed was destroyed in fire. If there was an adoption deed, then it ought to have been registered and even certified copy of the said adoption deed could have been produced by the plaintiff to support the evidence of his witness, but even that was not produced. In cross-examination he admitted that he was not present at the time of any other adoption ceremony, nor he has seen any other adoption deed. In cross-examination he admitted that he was not present at the time of any other adoption ceremony, nor he has seen any other adoption deed. Another witness of the plaintiff P.W. No. 4 Chandrashekhar stated that at Jathone, one Bhimanna Mesur had given his son in adoption in the year 1973-74 when the son was aged about 28 years. In the same year one Ganpati Gurubal Lone had given his son aged 24 years in adoption to his sister. However, the persons who were involved in these acts of adoption have not been examined. The documents pertaining to those adoption deeds have not been produced, nor any other evidence is adduced to corroborate the statement of these witnesses. He even does not say that he was present at the time of those two adoption ceremonies and his evidence is merely hear say evidence and has no evidentiary value either and does not help the plaintiff in any way. In addition, the plaintiff has examined one witness Lalchand Bhikchand Mehata who admittedly does not belong to the said community and has not deposed anything about the custom prevalent in the lingayat community. He has merely stated that he knows one Deshmukh belonging to the lingayat community and his wife Shashikala adopted one Shivakumar. He was witness to the said adoption deed. In the cross examination he admitted that he belongs to other community and the custom of lingayat community are different. He also admitted that the adopted son of Chhabuanna in respect of which he had deposed as well as his wife are alive. However the plaintiff has not examined these witnesses to corroborate the evidence as well as adoption deed Exhibit 51. This adoption deed no doubt mentions about the custom prevalent in that community but as already pointed out that the persons who were concerned with the ceremonies of the adoption are not examined and by merely examining one attesting witness who admittedly does not know about the custom prevalent in the Lingayat community, it is not possible to accept that the plaintiff has proved the said custom. It is also not known whether the adopted son had come in possession of the property and performed his religious obligations and legal duties in pursuance of the said adoption. Same is the case of the present plaintiff. It is also not known whether the adopted son had come in possession of the property and performed his religious obligations and legal duties in pursuance of the said adoption. Same is the case of the present plaintiff. He does not even say that in pursuance of the adoption, Gangavva started living with him and after her death he performed her death rites. The plaintiff has also not stated about the other properties of deceased Gangavva and whether in pursuance of the adoption he has come in possession of those properties. On the background of these facts and evidence I have to consider whether the plaintiff has established a custom prevalent in their community as per which adoption of a boy above the age of 15 years was permissible. 9.On behalf of the appellant reliance was placed on (Saraswathi Ammal v. Jagadambal)1, A.I.R. 1953 S.C. 201. However, it is difficult to appreciate as to how ratio of this case is relevant to the plaintiff's case. Since in the present case the plaintiff has come up with a contention that there was a custom prevalent in their community, burden of proving the custom was on the plaintiff and therefore this authority does not in any way help the plaintiff. 10.It is an admitted legal position that the custom in order to have force of law must be of sufficient antiquity and must have been consistently followed by the persons belonging to the said community. There is no such pleadings nor there is any evidence to make out such case. On behalf of the defendant reliance was placed on (Laxman Ganpati Khot v. Anusuyabai)2, A.I.R. 1976 Bom. 264 : 1977 Mah. L.J. 68. (G) "Proof of custom of adoption of males over age of 15 must be established inductively and furnished by evidence which is clear and unambiguous. It is also well settled that one custom cannot be deduced from another. Custom cannot also be extended by analogy or enlarged by parity of reasoning." (J. Siromani v. Hemkumar)3, A.I.R. 1968 S.C. 1299 ". (C) A custom must be proved to be ancient certain and reasonable if it is to be recognised and acted upon by courts of law. A custom of 'Jethansi or 'Jeshtbhagam' being in derogation of the general rules of law must be construed strictly. (C) A custom must be proved to be ancient certain and reasonable if it is to be recognised and acted upon by courts of law. A custom of 'Jethansi or 'Jeshtbhagam' being in derogation of the general rules of law must be construed strictly. Held on facts that the custom of Jethansi alleged to be prevalent in the Agharia community to which the parties belonged was not established by proper evidence." (Nemichand Shantilal Patni v. Basantabai w/o Nemichand Pahade)4, 1994(3) Bom. C.R. 550 (b) Party setting up a particular custom must not only allege but also prove the same so as to make such custom a rule of law as applicable to the concerned parties ---Adoption of married person aged 30 years sought to be justified on the ground of custom-- Pleadings regarding custom found to be insufficient and no independent witness examined to prove the same-Requirements of valid adoption not complied." The above stated evidence tested on the anvil of this legal position falls short of proving the custom of adoption of a boy age of more than 15 years prevalent in the community as contended by the plaintiff. 11.Apart from this the infirmities pointed out earlier that the plaintiff has not even stated that in pursuance of the adoption he started residing alongwith deceased Gangavva. He lived with her and was in her company at the time of her death and he performed her death rites. He has also not led the evidence to show how the other property left by deceased Gangavva has come in his possession. The learned trial Judge was, therefore, not at all in error in rejecting the plaintiffs case regarding custom of adoption of a child above the age 15 years contrary to the provisions of Hindu Adoptions and Maintenance Act prevalent in the lingayat community. 12.On behalf of the appellant the reliance was placed on the judgment of this Court, reported in (Housabai v. Jijabai Baba Pawar)5, A.I.R. 1972 Bom. 98. "(B) Hindu Adoptions and Maintenance Act, 1956, Section 10(iv)-Adoption-Custom- or rule of Hindu Law in the former State of Bombay permitting adoption of males over the age of fifteen years is protected by section 10. 98. "(B) Hindu Adoptions and Maintenance Act, 1956, Section 10(iv)-Adoption-Custom- or rule of Hindu Law in the former State of Bombay permitting adoption of males over the age of fifteen years is protected by section 10. " However this judgment is not applicable to the facts of the present case because the present case was admittedly not from the erstwhile State of Bombay but it was from the State of Jath in Sangli district, which was an independent State. Sangli itself was an independent State prior to 1947. 13.As regards the defence of protection under section 53-A of the Transfer of Property Act, suffice it to point out that the defendant has relied upon agreement of sale allegedly executed by the power of attorney holder of deceased Gangavva. The document of power of attorney is not produced and in the absence of said document it cannot be accepted that deceased Gangavva had given authority to dispose of her property to the said person by executing power of attorney. The said person, may be holding power of attorney, for looking after the litigation of deceased Gangavva as the said fact is admitted by the plaintiff in his evidence, but that evidence by itself is not sufficient to come to a conclusion that deceased Gangavva had also appointed him as her agent even to dispose of her property, and therefore, I do not find that the defendant can be held to be in possession in pursuance of the agreement of sale and can claim the protection of section 53-A of the Transfer of Property Act. However, since the plaintiff has failed to prove his case, the learned trial Judge was justified in dismissing the suit and there is no reason to interfere with the impugned order of dismissal passed by the learned trial Judge. There is no merit in the appeal and it must, therefore, fail. 14.Appeal is dismissed with costs. Certified copy expedited. Appeal dismissed. *****