JUDGEMENT Arun Kumar Goel. J.: This case was decided earlier on 28th July, 1997, when the appeal was allowed and consequently suit of the appellants was decreed. Review filed by respondents No.1 and 2 was dismissed on 27th November, 1997. Matter was taken up further in Civil Appeal No. 323 of 1998, before the Honble Supreme Court by respondent Nos. 1 and 2. Vide its order dated 16th October, 2003, Supreme Court while allowing the appeal remanded the case to this Court, with the direction to consider whether any substantial question or questions of law arises for consideration between the parties under Section 100 of the Code of Civil Procedure, 1908, and thereafter to dispose of the second appeal afresh after formulating substantial question (s) of law, if arise for consideration, in accordance with law. All contentions of the parties were left to be urged before this Court 2. Following substantial questions of law were framed on 11.9.2004: 1. When parties are admittedly governed by custom, was the first appellate Court below justified in importing the doctrine of legal necessity under Hindu Law while dismissing the appeal of the appellants and such a finding is sustainable in the eyes of law? 2. In the absence of findings on issue No.8, which were recorded in favour of the appellants and against the respondent, having been challenged by the later, since they were not aggrieved from such findings, first appellate Court below was justified in passing the impugned judgment while setting aside the findings on such issue? 3. Facts on which teamed Counsel for the parties were not at variance at the time of hearing of this appeal need to be briefly noted. Appellants, (hereinafter referred to as the plaintiffs) are admittedly the sons of respondent-defendant No. 3 late Shri Niranjan Singh. He sold suit land to respondent-defendant No.1 Bharat Bhushan, who is son of respondent-defendant No.2. This sale was effected during the minority of defendant No.1 and was finalized by his father defendant No.2. 4. Shastrik as well as codified Hindu Law being not applicable to the parties was another fact, which is not in dispute. For the purpose of succession and alienation etc, parties are governed by customary law i.e. Wazib-ul-ari. Reason being that parties are Kannaura, a notified Scheduled Tribe, under the Constitution (Scheduled Tribes) Order, 1950. 5. 4. Shastrik as well as codified Hindu Law being not applicable to the parties was another fact, which is not in dispute. For the purpose of succession and alienation etc, parties are governed by customary law i.e. Wazib-ul-ari. Reason being that parties are Kannaura, a notified Scheduled Tribe, under the Constitution (Scheduled Tribes) Order, 1950. 5. At the time of hearing learned counsel for the parties submitted that legality of transfer of land by deceased defendant No.3 in favour of respondent-defendant No. 1, is to be examined in the light of Wazib-ul-ari Ext. PG it was relied upon at the time of hearing by both learned Counsel in this case. 6. A suit for declaration and injunction challenging the sale made by the Niranjan Singh, defendant No.3 in favour of defendant No.1 Bharat Bhushan, was filed by the plaintiffs against Bharat Bhushan, his father Girdhari Lal and their own father of Niranjan Singh. This suit was filed by the plaintiffs through their mother Smt. Nare, Declaration sought for was to effect that alienation of land measuring 1 bigha 2 biswas, comprised of Khasra No.845/565, situate at Mauza Khawangi, Tehsil Kalpa, District Kinnaur, made by the father of the plaintiffs, (late Shri Niranjan Singh), shall not be binding on the rights, title and interest of the plaintiffs after his (Niranjan Singhs) death. An injunction was prayed for as a consequential relief thereby restraining Bharat Bhushan and his father Girdhari Lal, i.e. defendants 1 and 2, respectively, from raising any construction over the suit land. Basis of seeking declaration and injunction was that the land was ancestral in nature and it was transferred by Niranjan Singh in favour of defendant No.1 under the influence of Girdhari Lal. Niranjan Singh was employed in ITBP and had sufficient landed property situate in village Peo. He was also getting sufficient income from his apple orchard and as such, there was no need for alienation of the suit land. In fact transfer was made under undue pressure from defendant No.2, which was against law and custom governing alienation of property in Kinnaur District. 7. Defendants 1 and 2 filed joint written statement and pleaded that sale in question was for legal necessity for a consideration of Rs.6,000/-. Niranjan Singh and his wife were in need to money for domestic necessities. 7. Defendants 1 and 2 filed joint written statement and pleaded that sale in question was for legal necessity for a consideration of Rs.6,000/-. Niranjan Singh and his wife were in need to money for domestic necessities. Sale in fact was forced by the mother Smt. Nare) of the plaintiffs on both of them i.e. defendants 1 and 2. Since defendant No.3. wanted to raise an orchard at Tallingi and construct building at Peo, therefore, money was required by him. Suit was got instituted by defendant No.3. after having realized the importance of the land situate in the heart of Peo township. 8. Defendant No.3 Niranjan Singh in his written statement admitted that the land in suit was ancestral. However, he averred that the transfer of the land was made in order to meet urgent and legal necessities of life. Trial Court on the basis of the pleadings of the parties framed 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? ..........OPP. 3) Whether the suit does not lie in the present form as 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? ...OPP. 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 27.1.73 and the mutation No. 2010, dated 22.6.73 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 in Rs.6,000/-instead of Rs.1000/- as alleged and if so to what effect? ...OPD. 8) Whether the land in suit was sold without the legal necessity and without consent of the plaintiffs guardian and against the interest of the plaintiffs as alleged and if so, to what effect? OPD. 9) Whether the suit is collusive, as alleged? .OPD. 10) Relief. 9. After recording evidence, trial Court dismissed the suit of the plaintiffs by holding under issue No.5 that land in question was ancestral in nature, but the local custom did not prohibit its alienation. OPD. 9) Whether the suit is collusive, as alleged? .OPD. 10) Relief. 9. After recording evidence, trial Court dismissed the suit of the plaintiffs by holding under issue No.5 that land in question was ancestral in nature, but the local custom did not prohibit its alienation. Under issue No.8 it was held that the alienation was made without legal necessity. This findings was against the defendants. Having felt aggrieved by the decree and judgment of the trial Court, plaintiffs filed appeal before the lower appellate Court. While dismissing the appeal, finding on issue No.8 was also reversed, without any cross-objection to challenge finding recorded under this issue, by defendants 1 and 2. 10. This appeal is not to be decided on the basis of Ext. PG i.e. Wazib-ul-ari, which admitte dly governs the parties. For ready reference its Clauses 9, 10 and 11, which are relevant in this case are extracted herein below- 11. As per Ext. PG, it is evidence that the transfer can be effected by a male holder of his property only to the persons mentioned in it. A further perusal of Ext. PG also shows that females are excluded from the inheriting the property save and except as permissible in this document. Otherwise the property has to devolve upon male issues/descendants. During his fife time holder of property, like deceased defendant No.3 could have transferred the same in favour of his daughters in the presence, as well as absence of a male issue, as per Clauses 10 and 11 (supra). 12.lt is not the case of defendants 1 and 2 that transfer in there favour is covered by any of the conditions mentioned in Wazib-ul-ari Ext. PG. In fact their defence is based on well known concept of legal necessity for benefit of the estate under Hindu Law. 13. When admittedly neither Shastric Law nor codified Hindu Law was applicable to the parties, findings on issue No. 8 recorded by the trial Court and having been reversed by the first appellate Court without any challenge to it, in fact are redundant. Wazib-ul-ari Ext. PG does not make any distinction between earlier either ancestral or non-ancestral property held by a person like deceased defendant No.3. 14. Wazib-ul-ari Ext. PG does not make any distinction between earlier either ancestral or non-ancestral property held by a person like deceased defendant No.3. 14. In the Himachal Pradesh District Gazettes of Kinnaur (1971 Edition), published by the Himachal Government at its page 93, it has been mentioned as under: "As the Hindu Succession Act 1956 is not applicable to Kinnaur. the daughters do not inherit any property legally and the mutations continue to be attested in the old manner. Transfer of property through Wills It has been found that no will has been presented before any Registrar or come to notice of the public since the creation of the district. A very few transaction by way of gifts, however, have been reported which generally have been set aside by the Civil Courts on the basis of the prevailing customs in the district, or on the basis that whenever a particular custom is in vogue and is proved as such, that custom shall be the rule governing the decision. The custom prevailing in this tribal area is as recorded in the Wajib-ul-araz which restricts the powers of the member in the joint family to alienate or otherwise transfer any property against the interest of his reversioners." (Emphasis supplied). 15. In this view of the matter also, the appellate Court below was not justified in importing the doctrine of legal necessity while dismissing the appeal of the plaintiffs. Once this finding is recorded under substantial question of law No.1, supra, question No.2 becomes redundant. 16. Further question that arises is that whether this Court can and in given case should interfere with the concurrent findings recorded by the Courts below while dismissing the suit of the plaintiffs or not in a second appeal under Section 100 of the Code of Civil Procedure. 17. In this behalf, Mr. Sharma, learned Counsel appearing for defendants 1 and 2 forcefully urged that even in case of erroneous findings concurrently recorded by the Courts below, (as in the present case) call for no interference in an appeal under Section 100 of the Code of Civil Procedure. Further according to him, every error and/or mistake committed by the Courts below does not call for interference by this Court in a second appeal, like the present one. Further according to him, every error and/or mistake committed by the Courts below does not call for interference by this Court in a second appeal, like the present one. Alternatively, he urged that this is a fit case for exercise of power vested in this Court for upholding the dismissal of suit under Order XLI Rule 33 of the Code of Civil Procedure. Number of Supreme Court decisions were cited by Mr. Sharma with a view to uphold his plea. 18. This Court would ordinarily be reluctant, as well as loath to interfere with the findings of fact in second appeal under Section 100 of the Code of Civil Procedure. However where the Court comes to the conclusion that such findings recorded by the Courts below could not at all have been arrived at on the basis of the materials on record, and also those being perverse, this Court in a given case is not powerless to act in accordance with law. 19. On purely as a proposition of law, learned Counsel for the parties were not at variance on this aspect also. However, Mr. Sharma hastened to add that this proposition is not applicable muchless attracted to the facts of the present case. As according to him, it cannot be said that the dismissal of the suit was not possible on the basis of evidence and other materials produced by the parties on record. 20. After having gone through the entire oral as well as documentary evidence on record, particularly keeping in view the statements of PW-1 Tej Ram. PW-2 Dalip Singh as well as DW-2 Girdhari Lal, defendant No.2 i.e. father of defendant No.1, it is evidently clear that in the matter of alienation of property parties are governed by custom. The custom is what is contained in Wazib-ul-ari Ext. PG. DW-2 Girdhari Lal has clearly stated that transfer of property is to be effected in accordance with Wazib-ul-ari. Ext. PG and not under Hindu Law. Whether money was required by late Shri Naranjan Singh, the transferor for raising an orchard or for construction of a building gets into pale of insignificance. Therefore, sale by late father of plaintiffs i.e. deceased defendant No.3 Naranjan Singh in favour of defendant No.1 being contrary to Ext. PG was not sustainable. How and in whose favour transfer could be effected, has always to be in consonance with Wazib-ul-ari, Ext. PG. Therefore, sale by late father of plaintiffs i.e. deceased defendant No.3 Naranjan Singh in favour of defendant No.1 being contrary to Ext. PG was not sustainable. How and in whose favour transfer could be effected, has always to be in consonance with Wazib-ul-ari, Ext. PG. Therefore, both the Courts below fell into error while dismissing the suit of the plaintiffs. 21. Faced with this situation, learned Counsel for the defendants urged that appeal had abated. Per him, after the death of Naranjan Singh during the pendency of this appeal after remand, his legal representatives i.e. widow not having been brought on record. Therefore, the appeal was liable to be dismissed on this ground alone. This plea has been raised simply to be rejected. Reason being in any event in the presence of the plaintiffs, as well as in view of Ext. PG she was not to inherit the estate of deceased. It was the plaintiffs alone who in terms of Wazib-ul-ari Ext. PG, could inherit the property in question by left by their late father. In this view of the matter, non-impleadment of Smt Nare does not affect the present appeal. Thus there is no question of its having abated. 22. Another plea urged by Mr. Sharma was that right to inherit the property by the plaintiffs, if any, even if we assume for the sake of argument, without conceding, was to accrue after the death of Naranjan Singh deceased defendant No.3. He further submitted that when the suit was filed, said defendant was alive. Therefore, the suit was premature. Thus the suit was liable to be dismissed on this short ground alone. Therefore, no interference is warranted in this second appeal under Section 100 of the Code of Civil Procedure. Reason being that if the decree cannot be supported on the ground on which it is based it needs to be upheld on this ground alone. 23. This plea again has been raised simply to be rejected. Reason being that frame of the suit clearly negates this plea. In case plea of Mr. Sharma is taken to its logical end, then the suit for declaration sought in the plaint would have become time barred, thus leaving the plaintiffs remediless. 23. This plea again has been raised simply to be rejected. Reason being that frame of the suit clearly negates this plea. In case plea of Mr. Sharma is taken to its logical end, then the suit for declaration sought in the plaint would have become time barred, thus leaving the plaintiffs remediless. Incidentally it may also be appropriate to notice here that after remand of the case from the Supreme Court, when notice was issued to Naranjan Singh, defendant No.3, it was reported that he has since died. 24. At the risk of repetition, it may be appropriate to observe that deceased defendant No.3 could not alienate the suit property save and except in accordance with Wajib-ul-arz Ext PG. With a view to support the case of his clients, Mr. Sharma submits that Clause 7 of Wajib-ul-arz, i.e. Ext. PG has to be read with its Clause 10 as extracted in the preceding paras. With a view to properly appreciate this submission Clause 7 of Wajib-ul-arz is also extracted herein below: 25. When a reference is made to the written statement of defendants No.1 and 2 no foundation had been laid in it by them. Whether there were other brothers of deceased Naranjan Singh, whether they were alive when the suit was filed there is nothing on record. It hardly needs to be emphasized that in case defendants 1 and 2 wanted to take advantage of Clause 7 (supra), firstly foundation had to be laid in the pleadings and thereafter facts had to be proved. There is nothing on record to that effect either pleaded or proved by defendants 1 and 2. 26. In the circumstances of this case I am of the considered view that there is no ground any whatsoever on the basis whereof alienation of suit property by deceased defendant No.3 Naranjan Singh in favour of defendant No.1 can be upheld in view of Wazib-ul-ari Ext. PG. In this view of the matter and parties being admittedly governed by custom, as contained in Ext. PG trial Court fell into error while dismissing the suit of the plaintiffs and first appellate Court gave a perverse judgment while upholding the same, as on admitted facts in no circumstances, any whatsoever, the suit of the plaintiffs could have been dismissed. Therefore, dismissal of the suit of the plaintiffs by the Courts below needs to be set aside. Ordered accordingly. Therefore, dismissal of the suit of the plaintiffs by the Courts below needs to be set aside. Ordered accordingly. 27. To be fair to Mr. Sharma it may be observed here, that he ha relied upon a number of Supreme Court decision with a view to advance the case of his clients why this Court should not interfere in this second appeal under Section 100 of the Code of Civil Procedure. They have not be referred to for the view that has been taken in this appeal on the basis of Ext. PG. So far Order XLI Rule 33 of the Code of Civil Procedure is concerned, it is not applicable in this case as was urge by Mr. Sharma. 28. No other point is urged. 29. In view of the aforesaid discussion, while allowing this appeal, judgment and decree passed by the learned Additional District Judge (I), Shimla in C.A. No. 18-S/13 of 1988/87 In case titled as Tej Ram & others versus Bharat Bhushan and others, upholding the dismissal of the suit of the plaintiffs, in Civil Suit No.40/1 of 1974. 32/1 of 1978, 27/1 of 1986 by Senior Sub Judge, Kinnaur at Kalpa, is hereby quashed and set aside; and as a consequence of this the impugned sale deed dated 27.1.1973 by late Naranjan Singh defendant No.3 in favour of defendant No.1 Bharat Bhushan and also the mutation No.2010 dated 22.6.1973 on the basis of this sale deed, both are hereby quashed and set aside and the suit of the plaintiffs is decreed with costs throughout.