JUDGMENT : This appeal has been filed by the appellant/defendant being aggrieved by the judgment and decree dated 4-11-1996 passed by the Fourth Additional Judge to the Court of District Judge, Sagar in Civil Appeal No. 10- A/96 whereby the judgment and decree dated 18-1-1996 passed by the Second Civil Judge Class-I, Sagar, in Civil Suit No. 72-A/1994 has been set aside and the suit filed by the respondent/plaintiffs has been decreed. 2. The brief facts, leading to the filing of the present appeal are that the respondent/plaintiffs filed a suit on 5-12-1980 praying for declaring the Ichha Patra/Will dated 3-11-1980 executed by Kanhaiyalal as null and void and not binding upon the plaintiffs and for mandatory injunction to the effect that the deceased respondent No. 1 Babulal be declared as 'Mohatamkar' i.e. the Manager of Dev Janki Raman Mandir situated in village Khiriya as well as the Manager of the attached land namely, Khasra Nos. 183, 191 and 193 total area 12.07 acres of village Khiriya, Tehsil and District Sagar. The suit was filed by the respondent/plaintiffs on the ground that the temple and the land attached to it was required to be managed by the eldest member of the Pathak's family and there was a custom to the effect that the 'Mohatamkar'/Managership would devolve upon the eldest surviving member of Pathak's family on the death of the previous 'Mohatamkar' and in view of such a custom the Ichha Patra/Will dated 3-11-1980 executed by Kanhaiyalal, the original defendant, in favour of Bhagwandas by ignoring the claim of Kaluram who was the eldest member of the family on the death of Kanhaiyalal deserves to be declared as null and void. 3. The suit filed by the respondent/plaintiffs was dismissed by the trial Court by recording a finding to the effect that there was no such custom and, therefore, no fault could be found with the Ichha Patra/Will dated 3-11-1980 appointing Bhagwandas as 'Mohatamkar'/Manager of the Dev Janki Raman Mandir. 4. The appeal, filed by the respondent/plaintiffs against the judgment and decree of the trial Court dated 18-1-1996 has been allowed by the First Appellate Court by the impugned judgment dated 4-11-1996 by recording a finding to the effect that the appellant had failed to establish that the land in question belongs to Kanhaiyalal and that he had no right to execute the impugned Ichha Patra/Will. 5. 5. This second appeal was admitted by this Court on the following substantial questions of law :- "1. Whether on the facts and in the circumstances of the case, the First Appellate Court was justified in holding that because of prevalent custom amongst the parties the eldest male member of the family was required to be appointed as Mohatamkar of the temple and property ? 2. Whether on the facts and in the circumstances of the case, the First Appellate Court was justified in holding that Will dated 3-11-1980 which also amounts conferral of the rights in favour of the appellant was void as it was contrary to the principles of primogeniture ? 3. Whether on the facts and circumstances of the case, the appeal before the First Appellate Court was maintainable in absence of State of M.P. being joined as a party to the proceedings ?" 6. The learned Senior Counsel for the appellant submits that the finding recorded by the First Appellate Court suffers from perversity as there is no evidence or material to arrive at a conclusion that there was a custom which require the 'Mohatamkar' to be appointed on the principle of primogeniture. 7. The learned counsel for the respondents, per contra, submits that there was sufficient evidence on record to indicate that the 'Mohatamkar'/Manager was appointed on the principle of primogeniture and that there was a custody prevalent in their family in this regard. 8. To properly decide the substantial questions of law framed by this Court regarding perversity, it is relevant to examine the statement of the plaintiffs' witnesses, P.W-1 Kaluram (plaintiff), P.W-2 Man Singh, P.W-3 Nirbhay Singh and P.W-4 Babulal Pathak (plaintiff) as well as the statement of the respondent/defendant D.W-1 Bhagwandas along with the documents filed by the plaintiffs, Exhibit P-4, P-5, P-6 and P-7. 9. From a perusal of the statement of the aforesaid witnesses, it is clear that one Jagganath Pathak had two sons; Nandlal and Rajaram, out of which Nandlal was issueless while Rajaram had four sons; Dharamdas, Kanhaiyalal (the original defendant), Kaluram (one of the plaintiff) and Gaurishankar. Dharamdas, in turn, had three sons; Bhagwandas (the defendant), Babulal (one of the plaintiff) and Saligram. Dharamdas, in turn, had three sons; Bhagwandas (the defendant), Babulal (one of the plaintiff) and Saligram. From the documents Exhibits P-4, P-5, P-6 and P-7, it appears that the land in question was attached to the temple by one Beni Prasad Lambardar and Nandlal was appointed as the 'Mohatamkar' of the said temple. The documents indicate that after the death of Nandlal the name of Kanhaiyalal, the original defendant came on record as 'Mohatamkar' in the year 1978-79. 10. It is also clear that while the plaintiffs had alleged that after the death of Nandlal, Dharamdas the eldest son of Rajaram who had predeceased him was appointed as 'Mohatamkar' and after the death of Dharamdas, Kanhaiyalal (the original defendant) was appointed as 'Mohatamkar' who in turn executed the impugned Ichha Patra/Will on 3-11-1980 appointing Bhagwandas, Son of Dharamdas as the 'Mohatamkar' while in accordance with the custom Kaluram, brother of Kanhaiyalal, should have been appointed as 'Mohatamkar' of the temple and land. 11. The evidence led by the parties, specifically the statement of Kaluram, P.W.-1, in paras-5 and 10 of his deposition, makes it apparently clear that after the death of Nandlal, Kanhaiyalal (the original defendant) performed the duties of 'Mohatamkar' and that Dharamdas, though elder to Kanhaiylal was not appointed as 'Mohatamkar'. The statement of P.W-2 Man Singh also indicates the same while P.W-3 Nirbhay Singh has made a statement totally opposing the stand of the plaintiffs and stated that Kaluram, the plaintiff, had been appointed as 'Mohatamkar'. P.W-4 Babulal Pathak, in his statement, has also stated that though Dharamdas was required to function as 'Mohatamkar', he did not do so on account of the fact that he was in service and asked Kanhaiyalal his younger brother to perform the duty of 'Mohatamkar'. He also stated that the custom prevalent in the family was that the eldest male member of the family would become the 'Mohatamkar' unless he was otherwise indisposed. 12. He also stated that the custom prevalent in the family was that the eldest male member of the family would become the 'Mohatamkar' unless he was otherwise indisposed. 12. From an analysis of the aforesaid evidence, the plaintiffs' witnesses and the documents, it is clear that there is no evidence on record to establish a custom to the effect that the 'Mohatamkar' was appointed on the principles of primogeniture and on the contrary, the documents on record established the fact that after the death of Nandlal, Kanhaiyalal was appointed as the 'Mohatamkar' bypassing Dharamdas who was elder to him and thereafter Kanhaiyalal, by the impugned Ichha Patra/Will has appointed Bhagwandas. It is pertinent to note that Kaluram, the original claimant to the post of 'Mohatamkar', died during the pendency of the suit prior to recording of the statement of P.W.-4 Babulal Pathak, therefore, Babulal Pathak in his statement has quite categorically stated that he has no objection to Bhagwandas functioning as the 'Mohatamkar' as he was the eldest. 13. The learned Senior Counsel for the appellant has relied upon the decision of the Supreme Court in the case of Harihar Prasad Singh and others vs. Balmiki Prasad Singh and others, AIR 1975 SC 733 , wherein it has been held that the onus to prove a special custom prevalent in a family lies on the plaintiffs who must in turn prove that the custom had been acted upon and was in practice for such a long period and with such invariability, with the common consent of all the family members, so as to make it an established governing custom of a particular family. 14. In view of the aforesaid facts and circumstances, and in view of the decision of the Supreme Court relied upon by the learned Senior Counsel for the appellant, I am of the considered opinion that the present case is one where the respondents/plaintiffs have failed to prove and is in fact a case of no evidence to the effect that the principle of primogeniture had been acted upon for a very long time with such invariability and with the consent of all members of the family so as to make it an established governing rule or custom of the Pathak's family to make the eldest member of the family the 'Mohatamkar' of the Dev Janki Raman Mandir. 15. 15. In view of the aforesaid analysis of the evidence, I am of the considered opinion that the substantial questions of law Nos. 1 and 2, framed by this Court, deserves to be answered in favour of the appellant. It is, accordingly, held that the First Appellate Court has erred in law in decreeing the suit filed by the respondent/plaintiffs in the absence of any cogent and reliable evidence to establish a custom prevalent in the family to the effect that the 'Mohatamkar' of the temple and the property attached to it could be made only on the principle of primogeniture. The substantial question No. 3 is not required to be answered as the decision on the first two questions conclusively decides the appeal. 16. The appeal, filed by the appellant, is accordingly allowed. The impugned judgment and decree dated 4-11-1996 passed by the Fourth Additional Judge to the Court of District Judge, Sagar in Civil Appeal No. 10-A/96, is set aside. 17. In the facts and circumstances, there shall be no order as to costs. Petition allowed.