Achhru Ram, J.
1. By means of a mortgage-deed dated 22nd June 1945 Rala Ram and Mt. Prabhi, his brother's widow, Brahmins of the village Ajoli in Una Tahsil in the district of Hoshiarpur, mortgaged 8 kanals and 10 marlas of land in favour of defendants 1 to 4 for a sum of Rs. 4000. By means of another mortgage-deed dated 12th June 1945 Rala Ram alone mortgaged 3 kanals and 17 marlas of land to the Same defendants for a sum of Rs. 1,300. Thakar Das and Jagan Nath eons of Rala Ram brought two separate suits for the usual declaration in respect of the two mortgages. The suits were resisted by the mortgagees inter alia on the pleas that the Brahmins of the village Ajoli were not governed by agricultural custom in matters relating to alienation, that Rala Ram's powers of alienation were not subject to any customary restriction and that the mortgages-were for legal necessity. The learned Subordinate Judge held that in matters of alienation Brahmins of the village of the parties were governed by custom and that according to that custom Rala Ram's powers of alienation over ancestral property were restricted. He further found that necessity had been proved for the first mortgage only to the extent of Rs. 3000 and that no necessity had been proved at all for the second mortgage. In the result he granted the plaintiffs a declaratory decree to the effect that the mortgage-deed dated 22nd June 1945 would not affect their reversionary rights after the mortgagors' death except to the extent of Rs. 3000 and that the mortgage-deed dated 12th June 1945 would not affect their reversionary rights at all. The mortgagees feeling aggrieved from the decree of the learned trial Judge went up in appeal to the learned Senior Subordinate Judge who reversed the finding of the learned trial Judge on the question of custom and holding that Rala Ram had not been shown to possess only restricted power of disposition over ancestral property accepted both the appeals and dismissed the two suits. The plaintiffs have come up in second appeal to this Court. This judgment shall dispose of both the appeals, namely, R.S.A. No. 402 of 1948 and R.S.A. No. 403 of 1948.
2. The sole question that arises for decision in the present appeals is whether Brahmins of the village Ajoli have been proved to be governed by agricultural custom in, matters relating to alienation.
3. The learned Counsel for the appellants urged that the village was founded by a Brahmin Aja by name, that Brahmins owned about 85 acres of land out of the entire land of the village amounting to 189 acres, that there were 64 houses of Brahmins out of 136 houses in the village, that the Brahmins in the tehsil were statutory agriculturists, that the alienor had been shown to have been tilling his own lands, that other Brahmins in the village also tilled their lands with their own hands; that there was a Brahmin lambardar in the village and that in the circumstances of the case it ought to have been held that the Brahmins of this village live on agriculture as their profession and constituted at least a compact section of the village community. He further urged that the witnesses for the defendants themselves had admitted that Brahmins of this and of neighbouring villages were governed by custom in matters relating to alienation and that amongst them a male proprietor could not alienate ancestral property except for legal necessity. On these grounds he attacked the decision of the learned Senior Subordinate Judge.
4. After a careful consideration of all the contentions advanced by the learned Counsel for the appellants I find myself unable to hold that Brahmins of this village have been proved to be governed by agricultural custom in matters relating to alienation.
5. As has been repeatedly held, the main tests for finding out whether the members of a tribe which cannot be deemed to be one of the predominant agricultural tribes of the province residing in a particular locality are governed by custom in matters relating to alienation are: (1) Do they live on agriculture as their profession, and (2) Do they constitute a compact village community or a compact section of such community. Unless these two tests are fulfilled no presumption in favour of custom can be made. I am aware that in some of the decided cases some other tests are also mentioned, for example, whether the tribe has got a share in the shamilat, whether it furnishes lambardars, and whether in the locality in which it resides custom generally prevails. However, all these are only minor considerations which if found to exist may strengthen a presumption in favour of custom, which will arise if the above-mentioned two tests have been fulfilled and the non-existence whereof may possibly have the effect of weakening such a presumption.
6. In so far as the question of the Brahmins in the village living on agriculture as their profession is concerned the plaintiffs have relied merely on oral evidence. No attempt has been made to prove by production of copies of Khasra Girdawaris and Jamabandis how much land is under personal cultivation of Brahmins. The oral evidence is much too vague and quite unsatisfactory. In one breath the Patwari says that most of the Brahmins in the villages in his halqa cultivate their lands with their own hands. In the next breath he contradicts himself, particularly with regard to the village of the parties, and says that lands in this village are cultivated toy Brahmins with their own hands on a very small scale. It is the duty of a party to produce the best available evidence in support of his case and it goes without saying that if, as suggested, the Brahmins of this village did live on agriculture as their profession and agriculture was the main source of their livelihood, this matter was very easy to prove by production of copies of Khasra Girdawaris and Jamabandis.
7. There is a very important circumstance which clearly indicates that agriculture cannot possibly be the main source of livelihood of the 'Brahmins of this village. As has been seen above, 'Brahmins in the village own only about 85 acres of land. There are as many as 64 families of Brahmins residing here and it is inconceivable that all these families can make their livelihood out of the small area of land owned by them.
8. Turning now to the question whether Brahmins of the village have been proved to constitute a compact village community or at. least a compact section of such community, the learned Counsel for the appellants laid stress on the circumstance that Brahmins of Ajoli owned a little less than one half of the entire village area, namely, 85 acres out of 189 acres, and owned also a little less than one half of the total number of the houses situated in the village.
9. However, a section of the population of a village cannot be said to constitute a compact section of the village community merely because they own a large proportion of the village land or a large proportion of the houses situate in the village. The entire village admittedly not being owned by the Brahmins, no question of their constituting a compact village community arises. Even in order to form a compact section of such community something more than ownership of about one half of the land in the village and one half of the houses therein has got to be proved. What is required is not that the particular tribe or section of the population should constitute a large section of the village community. What is required is that they must constitute a compact section of such community. The compactness does not consist in numbers or in the extent of the land owned. It presupposes some amount of homogeneity. It is only if the parties concerned own a considerable area of the land of a village situated more or less in one locality and have their residences also largely in one particular locality and their lands or houses are not found to be interspersed with the lands and houses of other sections of the village community or persons belonging to other tribes, that they can be said to form a compact section of the village community. There is no evidence on the record to show that the lands of the Brahmins of Ajoli or their houses have a distinctive existence and are not mixed up with the lands and houses of persons of other tribes. It is further significant that even all the Brahmin residents of the village do not belong to one got. As pointed out by the learned Senior Subordinate Judge, out of the 85 acres of land owned by Brahmins only 56 acres are owned by Brahmins of the Jalpot Got to which the vendors belong.
10. A reference to Ex. P-7, which is a copy of the statement' of the proprietors of the village recorded at the Settlement of 1868-69, in relation to acquisition of ownership and the name of the village, shows that this village was originally owned by persons of Mehton tribe. After their disappearance, Aja, the ancestor of family No. 4 as shown in the pedigree table, came from Nawanshahr tehsil and settled in the village after acquiring some land from Deena Beg who was then the Governor of the Province and named the village after his own name as Ajoli. After that, from time to time, a number of other persons came to the village, settled there and acquired land with the permission of the Governor for the time being. The plaintiffs have not produced Kafiats with regard to the families of these settlers, although in Ex. p-7 it is stated that a detailed account with regard to those families and the acquisition of land by them had been noted in the pedigree table underneath those families. They would have thrown considerable light on the constitution of the village and the village community. Exhibit P-8 is a copy of that portion of the pedigree table which related to the descendants of Aja, i.e. copy of the pedigree table of family No. 4 referred to above. In view of the fact that even though the village had been founded after the extinction of the line of the Mehton proprietors by Aja, remote ancestor of the family of the plaintiffs, other persons belonging to different tribes settled in the village and acquired land there, and in the absence of anything to show that the descendants of Aja have been able to maintain their existence as a compact section of the proprietary body in the village, it cannot be held that they constitute a compact section of the village community.
11. For the reasons given above, I am of the opinion that neither of the two main tests mentioned above has been fulfilled. In addition to this, we have the fact that whenever an attempt was made by a Brahmin of this village to contest an alienation of ancestral property by a male proprietor on the ground of the same having been effected without legal necessity, the attempt invariably failed, and the decision always was against custom. One case came up to the High Court and the appeal of the plaintiff was dismissed by the said Court in limine.
12. In the circumstances the appeals fail and are dismissed. In the circumstances of the cases, however, I leave the parties to bear their own costs in all the Courts.