parties did not belong to an agricultural community, and as according to the personal law of the parties, Hindu Law, the adoption of a wife's brother's son was valid, it was held that the onus of proving its invalidity by custom lay upon the challenger of the adoption. Also Girdhari Lal v. Dalla Mal (1). This was a case of Dhawan Khatris of Ferozepore, the adopted child was a wife's sister's son. It was held that presumably the parties followed custom, but not the custom of agricultural tribes, and that this custom was not shown to differ in essential particulars from Hindu Law and the factum, and the validity of the adoption was held proved. This case is distinguished from both these cases by the fact that the Brahmans in this case, as I have shown above, have closely associated themselves with the Jat proprietors of the village in which they live and in some matters at least have adopted their customs. An adoption of this kind is so unusual and so at variance with the agnatic rule of inheritance that I think the onus of proving its validity lay on defendants (vide Nur Muhammad v. Alimullah (*)) and they have failed to discharge it. I therefore accept the appeal and set aside the orders of both Courts and decree declaring that the adoption of Atma Ram by Thakar Das is null and void as against plaintiffs' reversionary rights with costs throughout. Appeal allowed. No. 95. Before Mr. Justice Robertson and Mr. Justice Kensington. Versus HARDA WARI,-(DEFENDANT),-RESPONDENT, Civil Revision No. 84 of 1905. Kudhi kamini-Suit for the recovery of-Village cess―Jurisdiction of Held, that kudhi kamini is a "village cess within the meaning of REVISION SIDE. 5th April 1907. Petition for revision of the order of Lala Ude Ram, Munsif, Lakshmi Narain, for petitioner. The judgment of the Court was delivered by KENSINGTON, J.-In the case a suit for recovery of certain kudhi kamini dues has been decided by a Small Cause Court. The question before us is whether such suit would lie in a Civil or a Revenue Court. We take the term kudhi kamini to mean a hearth cess and to be the equivalent of the door cess or haqq-buha of districts in the Western Punjab. See paragraph 94 of Mr. Douie's Settlement Manual for the Punjab. Following the decision given in Fazal v. Samandar Khan (1) and in Gowhra v. Ali Gauhar (2) and an unpublished judgment of this Court, dated 8th March 1905, on Civil Reference No. 11 of 1904 (3), we hold that kudhi kamini is a village cess within the meaning of Section 77 (3) (j) of the Punjab Tenancy Act, and that a suit for recovery of the dues is excluded from the jurisdiction of the Civil Courts. We are unable to rectify the error by registering the decree of the Lower Court as a Revenue Court decree under Section 100 of the Tenancy Act, as the suit has been dealt with by an officer exercising Small Cause Court powers. We must, therefore, accept the application for revision, set aside the proceedings of the Lower Court on the ground that the Court had no jurisdiction, and direct that the plaint be returned to the plaintiff for presentation in the Revenue Court of an Assistant Collector of the 1st grade. No order as to costs in this Court. The plaintiffs-petitioners. are responsible for their Own mistake and the defendant respondent has incurred none. (1) 49 P. R., 1891. Note.-The following is the unpublished case referred to in the above judgment. Before Mr. Justice Robertson and Mr. Justice Kensington. SHAHYA AND OTHERS,-(DEFENDANTS),-APPELLANTS, Versus KARM KHAN AND OTHERS,- (PLAINTIFFS),-RESPON DENTS. Civil Reference No. 11 of 1904. Case referred by Major C. P. Egerton, Deputy Commissioner, Nanak Chand, for appellants. The judgment of the Chief Court was delivered by REFERENCE SIDE. KENSINGTON, J.-The term haq buha, which forms the subject 8th March 1905. matter of the suit before us, is explained in paragraph 143 of the Rawalpir di Final Settlement Report of 1887. It has been held both by this Court (Fazal v. Samandar Khan (1)), and by the Financial Commissioner (Gowhra v. Ali Gauhar (2)), that customary dues of this nature, levied by the proprietary body of a village from non-proprietary residents, fall within the definition of village cess contained in clause (12) of Section 4 of the Tenancy Act. Suits for recovery of these dues are therefore cognizable by the Revenue Courts under Section 77 (3) (j) of the Act. It follows that under the ruling in Bahadur Khan v. Sardar (3), with which we agree, the present suit has been correctly instituted in a Revenue Court, though brought for a declaration in regard to the dues under Section 45 of the Land Revenue Act. We do not think that there is any serious conflict between the ruling last quoted and that contained in Raja Nur Khan v. Mussamat Darah Khatun (4), which dealt with a different matter and was strictly confined to the case then before the Court. It does not follow that because a Civil Court can entertain a declaratory suit in regard to title as entered in the record of rights, it will, therefore, have jurisdiction in declaratory suits of a different nature, covering matters specifically referred to in Section 77 of the Tenancy Act. Our reply to the reference is that the Revenue Courts in this case have jurisdiction and that the appeal should be heard by the Collector. We make no order as to costs. No. 96. APPELLATE SIDE. 29th May 1906. before Mr. Justice Rattigan and Mr. Justice Chitty. FAIZ BAKHSH AND OTHERS,-(PLAINTIFFS), — APPEL LANTS, JAHAN SHAH AND OTHERS,- (DEFENDANTS),-RES PONDENTS. Civil Appeal No. 1094 of 1905. Custom-Alienation-Gift by a childless proprietor of his entire estate to two of his grand-nephews in presence of other nephews and grand-nephews — Mair Rajputs of Chakwal tahsil of the Jhelum District. Found that amongst Mair Rajputs of the Chakwal tahsil of the Jhelum District, a gift by a childless proprietor of his entire estate in favour of two of his grand-nephews in the presence of other nephews and grand-nephews is valid by custom. Further appeal from the decree of Captain B. O. Roe, Divisional Ganpat Rai, for appellants. Nanak Chand, for respondents. The judgment of the Court was delivered by RATTIGAN, J.-The parties are Mair Rajputs of the Chakwal tahsil, Jhelum District, and the question involved is whether a childless proprietor is competent to transfer by gift the whole of his estate in favour of two of his grand-nephews in the presence of other nephews and grandnephews ? The case reported as Niaz Ali v. Ahmad Din (') is directly in point, aud it was there held (after a remand for full inquiry) that a gift by will in favour of one nephew was valid by the custom of Mair Rajputs of this very tahsil. We see no reason to doubt the correctness of this decision which was referred to with approval in Sher Jang v. Ghulam-Mohi-ud-din (*), and upon its authority (reading it with the ruling of the Full Bench in Mussammat Bano v. Fateh Khan (3)), we hold that the gift to Jahan Shah and Karm Shah was valid and the plaintiffs' suit was, therefore, rightly dismissed. Mr. Ganpat Rai urged that an opportunity should be given to plaintiffs to produce further evidence in support of their case, but we do not think that any good and sufficient reason has been given for further protracting this litigation. The parties had ample opportunity of producing evidence in connection with the third issue, and if plaintiffs' evidence upon the question of custom is weak, its weakness is presumably due to the fact that custom is against them. That this presumption is justifiable is apparent not only from the finding in Niaz Ali v. Ahmad Din (1), but also from the fact that 5 out of 8 reversioners Lave not joined plaintiffs in this suit. We dismiss the appeal with costs. Appeal dismissed. No. 97. Before Mr. Justice Chatterji, C. I. E., and Mr. Justice Johnstone. JIWANI,-(PLAINTIFF),—PETITIONER, Versus BHAGEL SINGH,—(DEFENDANT),— RESPONDENT. Civil Revision No. 2183 of 1904. Revision-Dismissal of application for default-Pouer of Court to restore such application-Sufficient cause-Civil Procedure Code, 1882, Sections 103, 647. Held, that Section 103 of the Code of Civil Procedure applies by virtue of the provisions of Section 647 to an application for revision dismissed for the default of the petitioner, and that the non-appearance of the counsel on behalf of a parda-nashin lady owing to an unusual combination of circumstances is a sufficient cause for setting aside the default. Court of Wards v. Fatteh Singh (1) dissented from. Umar Din v. Ala Bakhsh (*), Coates v. Kashi Ram (3), Keshori Mohan Seth v. Gul Muhammad Shah (*), and Rura Mal v. Kuria (5) referred to and distinguished. Application for re-admission of the application for revision dismissed in default by the Chief Court on 15th May 1906. Ishwar Das, for petitioner. Dhanpat Rai, for respondent. The judgment of the Court so far as is material for the purposes of this report was delivered by REVISIONIDE. JOHNSTONE, J.-On 15th May 1906 15th May 1906 a Judge of this 2nd April 1907. Court dismissed this revision petition for default. On 12th |