1. These are three second appeals brought by defendant against decrees of the lower appellate court in favour of the plaintiff who is the zamindar of a certain village in Bijnor district called Bawana Shikarpur. The land-owner plaintiff has brought these various suits-against different tenants who have transferred their houses in the village and the land-owner sues for the ejectment of the purchasers from these houses. The defence taken was that the village was not an agricultural village, and that there was a custom and right of transfer. In second appeal three grounds have been taken, one of which is that the court below was wrong in concluding that the village was an agricultural village. The court of first instance came to the conclusion that the population of the village was about 1,500 persons and that there were more non-agriculturists then agriculturists, but that the excess was not shown, and all that could be said was that there was some excess. That court went on to find:
It lay on defendants to prove that the non-agriculturists are so far in excess of the agriculturists that the character of the village has been changed and that the agriculturists may be safely ignored. This has not been shown. All that has been shown is that there are more non-agriculturists in this village, without at the same time showing the proportion between these two classes of residents. In the absence of any such evidence I am unable to hold that the village has ceased to be au agricultural village.
2. The lower appellate court did not come to any further finding on this allegation in regard to population, but it stated that the allegation would not be sufficient to alter the character of the village which remains an agricultural village, and the court referred to Sheo Shankar Das v. Ram Tahal Koeri : AIR1927All605 , where it was held that the inclusion of a portion of an agricultural village in a Municipal Area will not affect the rights of the zamindars in the ownership of the soil in the abadi. In my opinion an agricultural village will only lose its character if it is shown that it has altered and has changed into a town. That would be shown by evidence that there was a large number of people in the village engaged in industries which were non-agricultural, such as working in a factory. In the present case it was alleged that some of the inhabitants of the village were weavers, presumably Mohammadan Julahas engaged in cottage industry and not working in factories. I do not think that the residence of such persons would alter the nature of the village because weaving cloth in such a way is for the purchase by the agriculturists who reside in the village, and therefore the industry is merely subsidiary to agriculture. It is not enough to show that there is a bare majority of persons who are not actively pursuing agriculture in the village. It must be shown that there are so many people in the village engaged in pursuing industries, unconnected with agriculture and not subsidiary to agriculture, that the nature of the village has been changed and agriculture has no longer remained the principal source of livelihood in the village, but that some other industry unconnected with agriculture has supplanted agriculture and changed the nature of the livelihood of the population.
3. The next point which was urged was that the lower appellate court was wrong in holding that the evidence produced was insufficient to establish the custom alleged. Twenty sale-deeds were produced; of these 4 were under trial and ten were sale-deeds within 12 years of the filing of the suits. Learned Counsel objected to the exclusion of these 10 sale-deeds, but they have not been altogether excluded. What the lower appellate Court apparently meant was that these sale-deeds being within 12 years are not evidence to show that the custom was ancient. In order to establish such a custom it is necessary to show that it was ancient and uniform and continuous. Beyond the period of 12 years there are only 6 sale-deeds, of which 3 were registered. Against these sale-deeds there is the finding that in five instances the plaintiff had challenged the rights of the tenants to transfer their houses, and the contention of plaintiff was admitted by the tenants. In view of this evidence it cannot be said that the finding of the lower appellate Court was incorrect. No further point was urged.
4. I dismiss these second appeals with costs.