C. J.-The plaintiffs came in Court in this case on the basis of a custom and claimed the property as reversioners of Ramzan. They set up a pedigree in their plaint which was not admitted by the defendants. The defendants contended that succession was governed by Mohammadan Law and not by the custom set up by the plaintiffs. They also denied that the plaintiffs were reversioners of Ramzan. No issue as to whether the plaintiffs were reversiness of Ramzan was framed by the trial Court. One witness produced on behalf of the plaintiffs supported the pedigree but no evidence was given on behalf of the defendants to prove that, the pedigree given by the plaintiffs in the plaint was not correct. The defendants were justified in not producing any evidence, because as already stated, no issue in regard to the correctness of the pedigree had been framed by the trial court. The first question to be determined in this case is whether the pedigree set up by the plaintiffs was correct or not and whether the plaintiffs had any relation with Abdulla, son of Ramzan, because if the plaintiffs were not connected with Abdulla they would have no locus standi and the suit would not proceed. Without going into this question the lower court found that the parties were not governed by custom but were governed by Mohammadan Law and dismissed the suit. The evidence produced by the plaintiffs themselves is against the custom set up by them. Their own witnesses have stated that there have been instances of the widows transferring their property. The plaintiffs have failed to establish the custom relied on by them. The question that arose on the failure of the. plaintiffs to establish the custom set up by them was whether they could get any share in the property in suit under the Mohammadan Law. In Wazir and others versus Alam and others, 43 P.L.R. J. & K. 135 Division Bench of which none of us was a member decided:- In the absence of any definite proof of custom set up by the parties, they are presumed to be governed in the matter of inheritance by their personal law." In a subsequent case, civil second appeal No. 243 of 2001, Mst. Zebi versus Resha Mir and others, another Division Bench of which two of us were members held :- It appears that some confusion exists as to whether a person who sets up a custom relating to succession can inherit under the Mohammadan Law. It is only when a custom is set up by a plaintiff which is not admitted by defendant and the plaintiff fails to prove the existence of the custom that the plaintiff would be entitled to succeed under Mohammadan Law because no custom governing succession has been admitted or established by the parties, and in the absence of any custom governing succession it is the personal law which would apply-" It is thus clear that the plaintiffs are entitled to get a share in the property in dispute under the Mohammadan Law if they were heirs or residuaries of Abdulla. It was contended on behalf of the respondents that as Mst. Mukhti widow of Abdulla was not impleaded the suit should be dismissed.. This contention, in my opinion, is without any force. According to the paintiffs case on the death of Abdulla the whole of the property which had been mutated in his name on the default of his father Ramzan was mutated in the name of his widow Mst. Mukhti, though under the Mohammadan Law which governed the parties, Mst. Ashmi, mother of Abdulia, also got a share in it as his mother. On Mst. Mukhtis remarriage the entire property was mutated,in the name of Mst. Ashmi, the mother of Abdulia. Mst. Ashmi transferred the property in dispute to the defendant respondents and died after the transfer. The property of Abdulia which is in dispute is now in possession of the defendant respondents. The plaintiffs case was that they were residuaries of Abdulia and as such were entitled to a share in the property in suit and Mst. Ashmis transfer of their share in it was invalid and ineffective. The plaintiff would be entitled to decree for possession to the extent of their share in the poperty in suit as residuaries under the Mohammadan Law. No relief has been sought by the plaintiffs against Mst. Mukhti or any other heirs or residuaries of Abdulia nor is any property in their possession. It was not, therefore, necessary to implead other heirs or residuaries of Abdulia. The plaintiffs cause of action in substance is that Mst. No relief has been sought by the plaintiffs against Mst. Mukhti or any other heirs or residuaries of Abdulia nor is any property in their possession. It was not, therefore, necessary to implead other heirs or residuaries of Abdulia. The plaintiffs cause of action in substance is that Mst. Ashmi had no right to alienate tHeir share in the property in suit to the defendant respondents. The plaintiffs would be entitled to joint possession over the property in suit with the defendant respondents. There is a distinction between the non-joinder of necessary parties and non-joinder of proper parties. Necessary parties are those in whose absence the court cannot pass an effective decree at all. Proper parties are those whose presence is necessary in order to enable the court to completely and adequately adjudicate on all the matters involved in the suit. If the non-joinder is only of proper (as contrasted with necessary) parties it can never be in itself fatal to the suit. In such a case the court can and should under order rule 9 deal with the matters in controversy in so far as the parties actually before the court are concerned and no suit should be defeated by reason of the misjoinder of the parties. It may order the addition of the parties under Order 1 rule 10 sub-rule 2. As regards the framing of the issue, under Order 14 rule 1 at the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and after such examination of the parties a s. may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance. Material propositions are those propositions of law or of fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. It is the duty of the court to ascertain from the plaint, the written statements and the examination of the parties which material propositions of fact or law or on which the right decision of the case appears to depend, and upon which of them the parties are at variance, and frame issues on them. The question whether the plaintiffs are heirs or residuaries of Abdulla has not been investigated by the lower Court. The question whether the plaintiffs are heirs or residuaries of Abdulla has not been investigated by the lower Court. In my opinion, therefore, it is necessary that the case should be sent down to the trial court for investigation of the claim of the plaintiffs under the Mohammadan Law after framing proper issues and giving the parties an opportunity to produce such evidence as they may wish to. Wazir J.-I agree and have nothing more to add. Masud Hassan J.- As this case has been put upon a course different from the one in which it was involved in the concluding stage of its hearing before the Division Bench I would like, first of all to give the circumstances under which the reference was considered necessary. In order to appreciate it properly, however, the facts of the case, in brief, may be stated at the out-set. This was a suit for possession of agricultural property. The parties are Mohammadans. They belong to village Senzi satroo, Tehsil PulwaWa, The plaintiffs case was that the parties are governed by a custom under which females take only a limited liifc interest in the property left by their husbands. They alleged that the entire property stood mutated in the name of Mst. Ashmi, Ramzans widow, that females were only entitled to maintenance and had no right to alienate the property. The plaintiffs claimed to be the reversioners of one Ramzan and laid claim to the entire property left by him basing their cause of action on the death of his widow. Only the transferees of Mst. Ashmi in possession of the property were impleaded as defendants. The defendants denied the custom set up by the plaintiffs and pleaded that the parties were governed by Mohammadan Law. The plaintiffs in the forefront of their plaint had given a pedigree in support, of their claim to be the reversioners of Ramzan and the defendants denied the correctness of this pedigree. They pleaded that their vendors were absolute owners of the property and had un-restricted right of alienation. They pleaded further that the transfers in their favour were bonafide and for consideration to the knowledge of the plaintiffs who had acquiesced in them all through and were now estopped from challenging them. On these pleadings the more important issue was with regard to the question whether the parties were governed by custom and whether Mst. They pleaded further that the transfers in their favour were bonafide and for consideration to the knowledge of the plaintiffs who had acquiesced in them all through and were now estopped from challenging them. On these pleadings the more important issue was with regard to the question whether the parties were governed by custom and whether Mst. Ashmi had a restricted right of alienation. The suit was decided on this issue and the finding of the Court was that the custom alleged was not established. In this view the court returned no finding .on other issues and dismissed the plaintiffs suit. Before the Division Bench the argument on behalf of the plaintiffs was confined only to assailing the courts finding on the point of custom. When this argument appeared not to find favour the position adopted on behalf of the plaintiffs was that they would be entitled to something under the Mohammadan Law. This position was explored by the Bench but in the fact of the denial by the defendants of the pedigree and in the face of their being no material on the record to show whether the plaintiffs are entitled to the property under the Mohammadan Law and if so to what portion and under what category it was suggested that an issue must go down to the court to explore this position on the ground that it was the duty of the court to find out whether the plaintiffs were heirs according to Mohammadan Law. It was insisted that the trial Court should have recorded a finding whether the plaintiffs were, reversioners or not. It is obvious that the decision of the point whether the plaintiffs were the reversioners or not was not necessary after the Courts finding that $he plaintiffs have not been able to establish that the parties were governed by custom. Reversion, it may be stated is an incidence of Hindu Law or custom and not of the Mohammadan Law. The position that was sought to be explored by the Court below was whether the plaintiffs were entitled to anything under the Mohammadan Law, a plea not taken by them. It was conceded that this matter was not broached before the trial even in the course of arguments. Nor does it form part of the very prolix ground of appeal in this court. It was conceded that this matter was not broached before the trial even in the course of arguments. Nor does it form part of the very prolix ground of appeal in this court. It was in this way that, the question whether it was the duty of the Court to frame an issue with regard to matters which were not pleaded by the parties nor had been adumbrated in the course of the argument before it arose for reference to the Full Bench. It was only upon this limited matter affecting a principle of law that I found it necessary to have the matter referred to the Full Bench. Subsequently, however the whole case was ordered to be referred to the Full Bench. This order was rot brought to my notice, and I was not a party to it. Under Section 62 (2) of the Constitution Act, 1996 a case has to be referred to a Full Bench when there is a difference of opinion among the Judges composing the Bench but under section 63 of the same Act it is a question of law that has to be referred to a Full Bench and not the whole case. I understood that action has been taken under section 63 because to my mind there was no point of difference between us except the question cited by me above. We were agreed that the plaintiffs had failed to establish custom as held by the lower Court and on this finding no other point arose in the case. It is, therefore, on this question that I shall address myself. Issues are framed by Courts exercising original Jurisdiction in terms of Order 14, C.P.C. rule 1 of that Order is as follows :- I. (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence, (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds : (a) issues of fact, (b) issues of law. (4) Issues are of two kinds : (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence." Under rule 3 of the same order the Court has to frame issues from all or an} of the following materials:- (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party. In doing so care has to be taken that the issues, whether they arise from the allegations in the pleadings or from other materials, should not be inconsistent with the pleadings. Nor is it open to the court to make a fresh case for either party. In this case, it will be noted, the plaintiffs case was based all along upon custom and upon the fact of their being reversioners of Ramzan. There was, therefore, no occasion for the court, as far as the pleadings of the plaintiffs were concerned except to frame " issue whether the parties were governed by custom and the question whether the plaintiffs would be entitled to the property as reversioners was to depend upon the finding on the point of custom in his favour. The fact whether they were or were not the reversioners was implicit in the issue drawn, by the Court. To what relief were the plaintiffs entitled after the finding against the plaintiffs on the question of custom this point did not arise and the suit was dismissed. In these circumstances I am of the opinion that it was no part of the courts duty to frame an issue whether the plaintiffs would be entitled to anything under the Mohammadan Law. In these circumstances I am of the opinion that it was no part of the courts duty to frame an issue whether the plaintiffs would be entitled to anything under the Mohammadan Law. In saying so I am not unmindful of those cases in which a decree has been passed in favour of the plaintiff of such share as he was found entitled to under the Mohammadan Law on his failure to establish the custom he pleaded . I have myself been a party to many of such decrees but they are all cases in which there existed before the Court material from which relief under the Mohammadan Law could be given and where the relationship of the plaintiff was admitted or at least not denied by the defendant. This is not the position here. Be it as it may, the proposition that it is the duty of the court to frame issues upon points not taken in the pleadings nor arising from any material on the record is one which I find myself wholly unable to subscribe to. A uniform course of rulings from the Privy Council downwards throughout the long course of the administration of justice,in this country under the Anglo-Indian Laws support me in this view. In G. F. Fischer versus Kamala, Naiker, 8 Moores Indian Appeals, 170 the Sudder Dewanany Adawlut at Madras dismissed a suit for specific performance by which the plaintiff claimed tiie execution of a lease to himself in accordance with an agreement between him and the defendant on the ground that the facts disclosed a case of champerty a question not raised by the pleadings or in the Court below. In reference to that decision, Their Lordships of the Privy Council remarked, "Their Lordships are clearly of opinion, that the decree of the Sudder Adawlut in this respect cannot be supported. The grounds on which they arrive at this conclusion make it unnecessary to decide whether, under the law which the Court was administering, those acts which in the English law are denominated either maintenance of Champerty, and are punishable as offences partly by the Common Law and partly by statute, are forbidden and also, if so forbidden, whether the point was in this case so raised by the pleadings, or the points for proof recorded by the Court, that it could be properly entered into. They will observe, however, in passing, that although it may be admitted that the Court would have the right, perhaps even lay under an obligation, to take cognizance. motu proprio, of any objection, manifestly apparently on the face of the proceeding, which showed that it was against morality or public policy ; yet where, as here, that was only to be collected from the evidence by inference, and was capable of explanation, or answer by counter-evidence, it is highly inconvenient, as well as contrary to the Regulation, XV of 1816, which regulates the practice of the Court, and may lead to the most direct injustice, to enter into the inquiry, if the issue has not been presented by the pleadings, or the points recorded for proof." In Wall-ullah Khan and another versus Mohatntnad Israr-ul-lah Khan and others. I.L.R. 6 Allahabad 627, the plaintiffs denounced their signatures on a sale deed as forgeries and never alleged that they had witnessed it under pressure. The Court of first instance found them to be genuine and the lower appellate Court, while agreeing with the court below in its finding upon the question of the genuineness of the signatures, observed that they were obtained under pressure and so reversed the decree of the Court below. On second appeal the High Court held that courts are not to raise important and serious issues in a case for the" parties when they have not raised it themselves by their own pleading in the cause. It was observed by Their Lordships ; " The issue which the District Judge found in their favour was a very serious issue, and of that class of issues, which in our opinion, the Privy Council has more than once pointed out should not be raised by the Judge for the parties when they had not raised it themselves ." In Venkata Narasimha Naidu and another versus Bhashya karlu Naidu and another, I.L.R. 25 Madras 367, a Privy Council case also reported in 29 Indian Appeals 76, in a suit for partition against his brother the plaintiff alleged that the immovable family property was joint, and that the defendant had been during the minority of the plaintiff, in possession as manager on behalf of himself and the plaintiff. The defendant stated that the property was by family usage impartible and held by the Senior member of the family and denied that he had held it on behalf cf the plaintiff and himself. At the hearing, after the other issues had been settled, the defendant asked to be allowed to raise an issue as to limitation on the ground that he had been in possession adversely to the plaintiff for more than ia years, the Judge refused to allow the issue to be raised. Their Lordships upheld the action of the Judge and remarked as follows: "Before the issue of impartiality was decided and before any evidence had been recorded, the defendants vakils applied to raise a general issue that the suit was time-barred, and the District Judges refusal to raise such an issue had been made a ground of appeal both in the High Court and before their Lordships. But no question of limitation *is raised upon the pleadings, and the Judges of the High Court held that although the District Judge had a discretion to raise such an issue, even at the stage of the proceedings at which it was asked for, he was not bound to raise it, and rightly excercised his discretion in refusing to do so. The written statement merely contains a traverse of the allegation that the principal appellant had managed the properties on behalf of himself and the plaintiff. The facts stated in the pleadings as to the appellants possession were at least consistent with either hypothesis that the Zamindari was impartible or that it was partible family property. The character of the possession was dependant on the determination of that issue. In their Lordships opinion no question of limitation was either raised by the pleadings or arose upon the evidence and it was not obligatory on the Judge to direct an issue," In Haji Saboo Sidick and of hers versus Ayeshabai and another, I.L.R. 27 (1902) Bombay 485, also a Privy Council case, the suit of the plaintiffs being a, Mohammadan widow and a daughter was for possession of estate left by one Haji Haroon Sidick. In the alternative they claimed to be entitled to a share in the estate or in any maintenance out of it. In the alternative they claimed to be entitled to a share in the estate or in any maintenance out of it. The defendants in their written statement denied that the plaintiffs were the wife and daughter of Haji Haroon Sidick and asserted that another lady was the only widow. Thus the whole of the plaintiffs claim was denied. After striking the relevant issues on this material the Judge of the High Court in its original jurisdiction held that the first plaintiff was the widow and the second plaintiff the daughter of Haji Haroon Sidick and decreed maintenance in favour of the widow and marriage expenses in favour of the daughter. In the course of his judgment he remarked " I was asked to raise an issue on un-chastity. I declined to allow it for three reasons. It was sought to be raised almost at the end of the defendants case. I should have been obliged to rehear the whole case to enable plaintiff to disprove facts. That would have been an injustice and waste of public time. Evidence has been directed to prove plaintiff was a prostitute. This was only relevant on the question whether the marriage was probable or not. Having held that the issue of unchastity could not be raised, I allowed no evidence to be taken about it." The matter was again raised in appeal before the Privy Council on behalf of the defendants. In dealing with this matter their Lordships after narrating the facts were pleased to remark : " The appellants sought to better their position by applying for leave formally to raise the issue whether, in the event of the plaintiff Ayeshabai being entitled to maintenance from the date of the deceaseds death, she has not forfeited such right by unchastity; and on this application being refused, the appellants applied for leave to file a supplemental written statement raising the question of unchastity. Both applications were refused. Both were made after the plaintiffs case was closed. It appears to their Lordships that it was out of the question that, after the plaintiffs case was closed, this new averment should be made, necessitating as it did the opening up of the whole case, without any suggestion that the facts relied on had newly come to the knowledge of the appellants and had before been excusably unknown to them. The proposal that this matter should now be reopened is the more unreasonble as the decree appealed against contains a dum tasta clause." In Durga Bakhsh Singh versus Mohammad AH Beg, I.L.R. (1904) 27 Allahabad I (P.C.) there were suits to set aside mortgages on the ground that the mortgagor was of unsound mind at the time of their execution, The plaintiffs witnesses gave evidence which showed nsanity of a violent type, but their evidence was not believed by either of the courts below. Meld that it was not allowable for the court of first instance to substitute for the case of insanity advanced by the plaintiff a case of weakness of mind and consequent heleplessness, when the type of insanity connoted in the evidence was something quite different, and on that ground to give the plaintiff partial relief. In Nagappa and others -versus Siddalingappa and others, A.I.R. 1919 Madras 698 the suit was to recover a certain sum of money under "a mortgage-deed against the defendants who were minors and who were represented in the suit by their guardian. In appeal on behalf of the minors it was contended that there was no proof as to the proper execution of the mortgage and its attestation according to law. No issue was raised upon this point before the court below. In these circumstances the contention was repelled and it was remarked: " The issues that were raised relate to question of limitation and res-judicata and those were the points apparently argued at the trial. We think that we should be perfectly justified in this case in saying that any question as to the execution of the document was waived at the tirre of the framing of issues and the trial of the suit." In that case also it was contended that it was the duty of the court itself to decide this question but their Lordships were of the opinion " The proposition however as to the duty of the court to raise proper issues is laid down in broad terms. But we do not think it was intended to lay down that upon question of fact it is the duty of the court, even though the party in whose interest it is to raise necessary issues, does not choose to do so to frame such issues of its own motion. But we do not think it was intended to lay down that upon question of fact it is the duty of the court, even though the party in whose interest it is to raise necessary issues, does not choose to do so to frame such issues of its own motion. Any general proposition of that character would in our opinion be subversive of proper conduct of cases and we are unable to assume that the learned Judge of the Bombay High Court intended to lay down any such rule. On, the other hand we agree with the ruling of this court reported as Ponnusamu Pillai versus Posopathi Mudliar (2) where it is laid down that an omission to raise an issue on a .question of fact implies an abandonment of that, question by the party interested. No doubt where the question is one purely of law, such as limitation or jurisdiction it is incumbent on the Court to frame proper issues on such of questions but it .would not be safe to extend any such rule to issues of fact. We, therefore overrule this objection raised by the appellants pleader." In Jhari Singh and others versus Babu Pirthi Nath Sahu and others (1917) 38 Indian Cases 191 a Bench of the Patna High Court refused to countenance the proceeding of the trial Court in raising additional issues not taken in the pleadings by way of converting the plaintiffs claim on the basis of a contract of tenancy whereas it was based on the basis of unlawful possession. Their Lordships were pleased to remark It is very hard to understand upon what principle either of the two lower courts acted. No application to amend the plaint was put forward by the plaintiffs; nor did the defendants themselves ask for any alternative relief, which would hare warranted the court in raising or framing any additional issues which might have determined the question which the Court decided." In this case thecourt considered a number of cases in which the same view was taken. In Dodbasappa Dharamappa versus Pradhanappa Venkappa and others, A. I. R. 1926 Bombay 33 in considering the extend and scope of order 14 Rule 5, C. P. C. permitting the court to frame additional issues a Bench of the Bombay High Court held that a court has under rule 5 power to frame additional issues. In Dodbasappa Dharamappa versus Pradhanappa Venkappa and others, A. I. R. 1926 Bombay 33 in considering the extend and scope of order 14 Rule 5, C. P. C. permitting the court to frame additional issues a Bench of the Bombay High Court held that a court has under rule 5 power to frame additional issues. But the additional issues authorised by this rule are such as may be necessary for determining the matter in controversy between the parties and that is a clear indication that it was not the intention of the legislature that the Judge should travel outside the actual averments and counter-averments of the parties. Fawcett J. in his judgment remarked " My learned brother had already referred to the remarks on this point in Naro Hari versus Anpuranabai (2) and I may further draw attention to the observation in that judgment that what is to be considered is the case made by a party and not the case as moulded by the astureness of the Judge." It will be noticed that the observations quoted from the cases mentioned above apply with even greater force to the facts of the present case. It is not an uncommon practice for litigants in these parts to shift their ground as occasion arises. Scarcely, if at all, an attempt is made to think out the position in terms of fact or the law applicable to them. In cases of inheritance it is not unusual to find parties arguing that they are entitled under Shafai Law if their claims-fall under the Hanafia or Shia Law. The prevalence of certain customs in the valley makes the position even more intriguing. A custom is appropriated or discarded according as the exigency of the hour dictates. Incidence of custom in the shape of Pisar Parwarda, Dukhtar Khana Nashin and Khana Damad etc., etc., are alleged or denied as it suits the occasion. In this state of things it is difficult enough for courts to keep the parties pinned down to their pleadings. If it is to be laid down as a rule of law that it is the duty of the courts to explore every conceivable possibility under which plaintiff may be found, to be entitled or a defendant may be found to evade a claim the position is found to become very uncertain and of unending difficulty. If it is to be laid down as a rule of law that it is the duty of the courts to explore every conceivable possibility under which plaintiff may be found, to be entitled or a defendant may be found to evade a claim the position is found to become very uncertain and of unending difficulty. What is really argued in this case is that whereas the plaintiffs case was that they were entitled to relief by pleading certain facts it was the duty of the court itself to conceive a series of other probable facts which if pleaded may entitle the plaintiffs to some relief if their case on their own pleadings failed. I am, therefore, of the opinion that the answer to the abstract proposition of law whether it is the duty of a court to frame an issue on material not before it by way of pleadings or otherwise is in the negative. Strictly speaking I am required to address myself to this question only as far as the reference to the Full Bench is concerned. As, however, the whole case has been referred to the Full Bench and I have had the advantage of reading the judgment of His Lordship the Chief Justice and have the misfortune again to disagree with the order proposed by him I would like to say a few words in this behalf. I may be permitted to say with great respect that I am in complete agreement with the propositions of law in the abstract laid down in the judgment of His Lordship. Under the Sri Partap Jammu and Kashmir Laws Consolidation Act, 1977, Mohammadan Law in cases where the parties are Mohammadans governs matters of inheritance unless it is abrogated by custom. On the failure of a party to establish custom if the plaintiff is found to be entitled to a share by way of inheritance tinder the Mohammadan Law he is entitled to get a decree. It will be noted, however, that the position now confronting us did not appear in the two cases cited, in the Judgment by His Lordship. Both these cases did not require to be sent back to the trial court to explore if the plaintiff would be found to have a claim to inheritance under the Mohammadan Law. It will be noted, however, that the position now confronting us did not appear in the two cases cited, in the Judgment by His Lordship. Both these cases did not require to be sent back to the trial court to explore if the plaintiff would be found to have a claim to inheritance under the Mohammadan Law. In both these cases the relationship of the parties was admitted and in both of them the question whether the parties would be entitled under the Mohammadan Law was taken up before the trial Court. In the 43 P.L.R., J & K. case both the parties pleaded custom, the one appertaining to the power of alienation of ancestral property by a son-less proprietor and the other setting up a custom of unrestricted alienation by such a proprietor as also the custom of inheritance by a Khana Damad. The trial court held that none of these customs was established and granted relief to the plaintifs under the Mohammadan Law. In this case the pedigree was admitted and there was no doubt about the category under which the plaintiffs were entitled to inherit. The lower appellate court upset the finding of the trial court but the High Court restored it. In Civil second appeal No. 242 of 2001, Mst. Zebi versus Resha Mir and others, the claim was on behalf of a Mohammadan daughter who said that being a Khana Nashin daughter she was entitled to the entire property left by her father. The defendants contended that the plaintiff was not a Khana Nashin daughter but admitted that the parties were governed by custom under which daughters inherited only if they were Khana Nashin and not otherwise. The plaintiff remained unable to prove that she was a Khana Nashin daughter and her suit was, therefore dismissed inspite of the fact that the position was shifted on her behalf and it was contended that in that event she must be given a share under Mohammadan Law. The ratio of the case is that custom was established as having been admitted by both the parties and therefore the plaintiff could get nothing under the Mohammadan Law. The ratio of the case is that custom was established as having been admitted by both the parties and therefore the plaintiff could get nothing under the Mohammadan Law. These cases, therefore, cannot be made to lend support to the proposition now advanced, i.e., that it was the duty of the court to frame an issue not arising out of the pleas taken by the parties to discover if the plaintiffs were entitled to anything otherwise. His Lordship the Chief Justice is pleased to remark "The plaintiffs case was that they were residuaries of Abdulla and as such were entitled to a share in the property in suit.." With great respect I would venture to point out that this was at no time the plaintiffs case and that there would have been no difficulty for the lower Court to consider the proposition if it had been so, There are to my mind many and serious impediments in the way of sending the case back now to investigate whether the plaintiffs are heirs and residuaries of Abdulla and whether they are entitled to inheritance under the Mohammadan Law. Firstly, it will be changing the entire cause of action. The plaintiffs claimed as reversioners of Ramzan. The investigation now sought will be whether they are residuary heirs of Abdulla. Secondly, Ramzan died considerably more than 12 years ago and the whole property had been mutated eventually in the name of his widow Mst. Ashmi. This would entail an investigation of the nature of possession in the hands of Mst. Ashmi and may possibly give rise to the question of adverse possession. Thirdly, the property is now in the hands of the transferees of Mst. Asimi (by mortgages and sales) and this would give rise to the investigation of the question whether they are bona fide transferees for value and without notice. Fourthly, a question might arise whether by omitting to seek relief under the Mohammadan Law the plaintiffs case would come within the mischief of Order 2, Rule 2, C.P.C. It will, therefore, be seen that the question is not only of the investigation of the relationship of the plaintiffs with Abdulla. Fourthly, a question might arise whether by omitting to seek relief under the Mohammadan Law the plaintiffs case would come within the mischief of Order 2, Rule 2, C.P.C. It will, therefore, be seen that the question is not only of the investigation of the relationship of the plaintiffs with Abdulla. Countenancing this contention at this stage will amount to entirety changing the whole case and would be tantamount to making altogether a new case with a considerable enlarged scope based totally upon a different cause of action for the defendants to meet. On these facts, the plaintiffs will not be found entitled to seek even an amendment of the plaint rather than contending successfully that it was the duty of the court to explore if they had a claim under the Mohammadan Law. In these circumstances I find myself unable to agree with the order proposed. I would accept the findings of the lower Court that the plaintiffs have failed to establish the custom set up by them and I would dismiss this appeal with costs. It is ordered that the appeal be allowed with costs, the decree of the lower Court be set aside and the case be sent down to it for investigation of the claim of the plaintiffs under the Mohammadan Law after framing proper issues and giving the parties an opportunity to produce such evidence as they may wish to. The costs of the trial court will abide the result.