Achhru Ram, J.
1. This is a second appeal from the decree of the learned District Judge of Ludhiana affirming on appeal the decision of a Subordinate Judge dismissing the plaintiff's suit for possession of 38 bighas 2 biswas and 10 biswansis of land situate in the village Bonkar Dogran in the Tehail and Diatriot of Ludhiana.
2. The facts giving rise to this appeal may be briefly given as follows: The land in dispute was held by one Mt. Rahmon, widow of Mohammadi Gujjar, a resident of the village Bonkar Dogran. Her husband was owner of land in Thulla Mohkam. On his death, the mutation in respect of the land left by him was attested in the name of the aforesaid Mt. Rahmon. Mt. Fatto, her daughter, brought a suit for possession of that land alleging that her deceased father had by means of his will dated 4th January 1904, left the land to her and, had advised his wife Mt. Rahmon to keep her husband as khana damad. Mt. Rahmon confessed judgment and the suit of Mt. Fatto was decreed on 15th November 1905. In pursuance of the decree obtained by her, mutation was sanctioned in her favour. Nabia, a collateral of Mohammadi brought a suit for a declaration that the will said to have been executed by Mohammadi deceased and the decree obtained by Mt. Fatto should not affect his reversionary rights after the death of Mt. Rahmon. This suit was eventually decreed by the Chief Court on 5th July 1909. However, Nabia himself died in 1938 without leaving any heirs other than Mt. Rahmon herself with the result that on 5th May 1938, mutation in respect of the land left by him was sanctioned in favour of the aforesaid Mt. Rahmon. In the meanwhile, Mt. Fatto had also died and mutation of the land standing in her name had also been sanctioned in favour of her mother Mt. Rahmon. Some time after the attestation of the mutation in respect of the inheritance of Nabia, Mt. Rahmon gifted the whole of the land standing in her name to Noor Mohammad who was her sister's son and also the husband of her deceased daughter. Some time after this gift Mt. Rahmon died. Dina and Labhu, two out of the proprietors of Thulla Mohkam, suing on behalf of themselves as well as on behalf of the other proprietors of the Thulla after obtaining leave from the Court under Order 1, Rule 8, Civil P.C., sued for possession of the land mentioned above, alleging that the gift by Mt. Rahmon deceased in favour of Noor Mohammad was invalid, and that according to the custom governing the parties they as the proprietors of the Thulla were entitled to succeed to the land forming the subject-matter of the gift, in the absence of any other heirs of the last male holder a namely, Mohammadi and Nabia. The suit was resisted by the defendants on a number of pleas on which the learned trial Judge framed the following issues:
1. Whether the village in question is a homogeneous estate?
2. If so, and if the land in suit be proved to be ancestral, then whether the proprietors of the said Thulla have no right of succession?
3. Whether the land in dispute is ancestral qua the proprietors of Thulla Mohkam?
4. If issue No. 1 is not proved, whether according to custom the plaintiffs had the right to inherit the land in dispute and have a right to challenge the gift?
5. Whether Noor Mohammad defendant paid any mortgage charge with respect to this land, if so, what is-its effect?
6. Whether Noor Mohammad was kept as resident son-in-law by Mt. Rahmon or her husband and what is its effect and whether under custom, Mt. Rahmon or her husband had a right to keep defendant 1 as a resident son-in-law?
3. The learned trial Judge decided the first, the third and the fourth issues against the plaintiffs. In view of the findings on issue No. 1 and issue No. 3 no decision on the second issue was considered to be necessary. The fifth issue was decided in the defendants' favour and it was held that he had discharged mortgage debts amounting to Rs. 1,197 and that in case of the plaintiffs' success, the latter could not recover the land except after reimbursing the defendants to the extent of the aforesaid sum. The sixth issue was decided in the defendants' favour. In the result, the plaintiffs' suit was dismissed. On appeal, the learned District Judge upheld the findings of the learned trial Judge on all the material issues except issue No. 6. The finding or this last mentioned issue seems to have been admitted by the learned, counsel for the defendants respondents to be erroneous. In view of His decision on the remaining issues, the learned Judge upheld the decision of the learned trial Judge and dismissed the appeal. The plaintiffs have come up in second appeal to this Court.
4. The main question in the appeal is whether, on the evidence, it could be held that upto the time of the death of Mt. Rahmon, the Thulla known as Thulla Mohkam was a homogeneous sub-division of the estate and a complete community of interests amongst all the proprietors of that Thulla had been maintained so as to give the proprietors of the Thulla the right to succeed to the land of anyone out of their body dying without leaving any recognised heir in preference to the Crown.
5. The learned Counsel for the appellants contended that under the provisions of the customary law of the district even in absence of proof of the circumstances indicated above, the plaintiffs, the proprietors of the Thulla, had a right to succeed to the land in dispute in preference to the Crown. This contention of the learned Counsel is, however, devoid of force. As pointed out by the learned District Judge, under the heading 'instances,' a note had been made in the relevant provision of the customary law that custom as recorded there had not been acted upon till the time of the compilation of the record of the customary law but that tribes people had agreed to act according to the custom as recorded on occasion arising. It is quite evident therefore, that the custom as recorded had no reference to the actual practice or usage in the tribe but merely expressed the desire of the tribesmen to act in a certain manner in future on occasion arising. I am in agreement with the view taken by the learned District Judge that in the circumstances the entry in the riwaj-i-am cannot be taken to prove any custom. Courts can give effect only to the actually prevailing usage and cannot hold such usage proved where it is expressly admitted by the persons concerned that there never has been any occasion in the past to act according to it.
6. The learned Counsel drew my attention to the judgment of a learned Single Judge of the Chief Court of the Punjab in Umra v. Karim Bakhsh and Ors. 16 P.R. 1912 in which, following the entry in the riwaj-i-am of the district, in a case relating to Gujjars, pattidars were held entitled to succeed to the land left by a land owner in the patti without leaving any other heirs. In the case relied on by the learned counsel, mutation had actually been sanctioned in favour of the proprietors of the patti whose names appeared in the pedigree-table prepared at the last regular settlement. The plaintiff was also one of the land owners of the patti, but he or any ancestor of his was not recorded as a land owner in that patti in the last regular settlement, and accordingly, his name did not appear in the pedigree-table at that settlement. The real question before the learned Judge was not, therefore, whether the proprietors of the patti had a right to succeed in circumstances, but whether the right to succeed vested only in the proprietors mentioned in the pedigree-table of the last regular settlement and could not be claimed by those land owners of the patti whose names did not appear in such pedigree-table. The learned Judge held that no reasonable ground existed for making a distinction between the two classes of proprietors in the patti. It was the parties' case that the entry in the riwaj-i-am conferred on the proprietors of the patti the right to succeed on any land owner dying heirless, and accordingly the question whether the said riwaj-i-am contained a correct record of custom did not arise. Attention of the learned Judge did not appear to have been drawn to the note in the riwaj-i-am to which I have already referred and accordingly no occasion arose for him to consider whether even in face of that note the relevant entry in the riwaj-i-am could be regarded as a record of custom. I cannot, therefore, regard the decision in the case relied on by the learned Counsel as any authority for the view that irrespective altogether of the constitution and the history of the Thulla, the plaintiffs are entitled to succeed to the suit land.
7. Even if the entry in the customary law did not contain the note referred to above, I would have felt very considerable hesitation in holding that under the custom as recorded in the relevant entry, the proprietors of a Thulla, a patti or an estate amongst Gujjars had a right to succeed even though the Thulla, the patti or the estate concerned consisted of a heterogeneous set of proprietors and even though no such complete community inter se the proprietors had been maintained as has been insisted upon in almost all the decided cases in which the question of the proprietors of any sub-division of an estate or an estate to the land of any proprietor dying heirless has arisen.
8. In my view, even in the absence of such a note, the only reasonable interpretation that could be placed on the entry in the riwaj-i-am would be that, wherever the constitution and the history of the sub-division or the estate justified it, the land left by a Gujjar dying heirless was to devolve on the land owners of the sub-division or the estate in preference to the Crown.
9. As regards the question whether in view of the constitution and the history of the Thulla, the plaintiffs can be held to have made out the right claimed by them, after hearing the learned Counsel for the parties at length, I see no reason to differ from the conclusions reached by the two Courts below. The very fact that one of the plaintiffs who obtained the permission of the Court to bring the suit under Order 1, Rule 8, Civil P.C., is not a Gujjar but is a Hindu carpenter is by itself sufficient to show that no such homogeneity or community of interests inter se the the proprietors of the Thulla has been maintained as alone could justify the claim put forward on the plaintiffs' behalf. The evidence given by the plaintiffs' own witnesses discussed at considerable length in the judgments of the two Courts below shows that besides Gujjars, Manjh Rajputs, carpenters and faqirs had become proprietors in the Thulla by means of purchase. Labhu Ram plaintiff admitted that his family had been owning land in the Thulla for over thirty or thirty five years. Even all the Gujjars owning land in the Thulla do not belong to the same got and some of them are residents of other villages. It is obvious, therefore, that the proprietors of the Thulla can no longer be considered to be a homogeneous set of proprietors and no community of interests can be supposed to exist amongst them. In these circumstances, it is obvious that the plaintiffs have no right to succeed to the suit land by reason of their being land owners in the Thulla in which it is situate. The appeal accordingly fails and is dismissed with costs.