Achhru Ram, J.
1. This second appeal has arisen tinder the following circumstances. By means of sale deed dated 6-6-1939. Chetu deceased son of Hira Singh and Chuhra defendant 3 sold 36 bighas and 1 biswa of land in suit to defendants 1 and 2 for a consideration of Rs. 3000. Defendants 1 and 2 transferred the land to defendants 4 to 6 by means of exchange. The plaintiffs, the sons of Chuhra, defendant 3, brought the suit, that has given rise to the present second appeal for a declaration to the effect that the sale of the land in suit by their father and the deceased Chetu, a near collateral of theirs, should not affect their reversionary rights after the death of their father Chuhra. It was alleged that the land was ancestral qua them and that the sale had been effected without consideration and legal necessity. On the pleadings of the parties the learned trial Judge framed the following issues:
(1) Is the land in suit ancestral qua the plaintiffs?
(2) Whether the sale was effected for consideration and legal necessity?
(3) Whether the suit is collusive?
2. The learned Judge found that the land in suit was divisible into two categories. 34 bighas and 2 biswas of land shown as category 'A' had been allotted to the vendors in the' proceedings for consolidation of holdings in lieu of 35 bighas and 3 biswas of land indicated by the letter 'B' in the judgment. The remaining land fell under category 'A/1' The learned Judge found the land which the vendors had thrown into the hotchpotch at the time of the consolidation of the holdings, namely, the land indicated by letter 'B' in the judgment, with exception of 8 biswas, to be ancestral in the Vendor's hands qua the plaintiffs. Finding, however, that 8 biswas out of this land has not been proved to be ancestral he held that the entire 34 bighas and 2 biswas of land allotted to the vendors during the consolidation proceedings must be held to be non-ancestral. Out of the land shown as belonging to category 'A/1' he held only 5 biswas of land comprised in khasra number 257 to be ancestral. In view of the fact that necessity for Rs. 400 out of the sale consideration, due to a previous mortgagee was, not being challenged, the learned Judge dismissed the suit, without giving any decision regarding necessity for the rest of the sale consideration, on the ground that only 5 biswas out of 36 bighas and 1 biswa of land sold having been proved to be ancestral, the sale could not be set aside even though the balance of the sale consideration was found to be without any necessity. On appeal by the plaintffs the learned District Judge upheld the decision of the learned trial Judge and affirmed the decree passed by him dismissing the plaintiff's suit. The plaintiffs have come up in second appeal to this Court.
3. The finding of the Courts below as to the character of the land comprised in category 'A/1' has not been challenged. The only question that requires determination in the present appeal is whether the Courts below were justified in holding the entire land comprised in category 'A' to be non-ancestral on the ground that out of 35 bighas and 3 biswas of land, in lieu whereof the vendors had got the land comprised in this category, 8 biswas of land had not been proved to be ancestral.
4. The Courts below have held that inasmuch as the whole of the land thrown by the vendors into the hotchpotch at the time of the consolidation of holdings was not ancestral, the land which was allotted to them in lieu thereof must be regarded as land in which ancestral and non-ancestral lands were inextricably mixed up and that in the result the whole of that land must be held to be non-ancestral. In support of this view they have relied on a judgment of a Division Bench of the High Court of Lahore in Labh Singh v. Mt. Jasso A.I.R.1938 Lah.180.
5. It is no doubt true that the judgment mentioned above does support the View taken by the Courts below. However, more recently Division Benches of the same High Court have not followed the aforesaid decision and have taken a contrary view. One of these cases has been reported in Mihan Singh v. Piara Singh (1946)48 P.L.R536. The judgment of the Division Bench in this case was written by Abdul Rashid, J. and Mahajan, J. concurred with him. In that case the alienor had surrendered 72 bighas and 14 marlas of land to the revenue authorities for purposes of consolidation. Out of this area 4 kanals and 9 marlas of land was non-ancestral while the rest of the land surrendered by him was ancestral. The area of land awarded to him, as a result of the consolidation proceedings, was 77 kanals and 10 marlas i. e. nearly 5 kanals in excess of the area surrendered by him. It was held by the Bench that in the circumstances at least 67 kanals and 15 marlas of the land awarded to the alienor having been so awarded in lieu of ancestral property must be deemed to be ancestral. Their Lordships distinguished Labh Singh v. Mt. Jasso A.I.R.1938 Lah.180 as being based on its own special facts and sought support for their view from the provision to be found in the Punjab Consolidation of Holdings Act of 1936 to the effect that a land owner or a tenant shall have the same right in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy as the case may be. It was held that the alienor did not possess absolute rights of disposal in respect of 67 kanals and 15 marlas of ancestral land that he had surrendered for the purpose of consolidation and that the aforesaid area out of the land involved in the litigation must be taken to have been held by him, after the consolidation proceedings, on the same tenure, subject to the same restrictions, as the ancestral area surrendered by him.
6. The matter again came up before another Division Bench of which I was a member and of which the other member was again Sir Abdul Rashid Kt. C.J. (R.S.A. No. 27 of 1945). The judgment of the Bench was written by me. Unfortunately that judgment has not so far been reported anywhere. In that judgment we, while agreeing with the view taken in the above mentioned case, based our decision on a broader ground, we held that where a land-owner throws into the hotchpotch some ancestral and some non-ancestral land, the land which is allotted to him on redistribution cannot, in its entirety, be regarded as non-ancestral, and that a share of such land bearing to the whole holding the same proportion as the ancestral land bore to the total area thrown by him into the hotchpotch may legitimately be regarded as ancestral. We felt inclined, although it was not really necessary for us to give any decision on the subject to extend the principle also to cases of exchanges in which part of the land given in exchange was ancestral but the whole was not.
7. After hearing the learned Counsel for the respondents I have not been able to discover any reason for not adhering to the view taken in the judgment referred to above. In the circumstances ordinarily I should have simply followed that decision and should not have considered it necessary to dwell on the subject again at any length. However, in view of that judgment not having been reported so far, and it being at best doubtful whether it would be possible ever to report it and having noticed a lot of confusion of thought in quite a number of judgments of Subordinate Courts--the judgment now under appeal being one instance--as to the circumstances under which a Court can hold event ancestral land to be non-ancestral on the ground of its inability to separate it from non-ancestral land, I propose, in this judgment, to deal, with the matter in some detail and to set down, what I consider to be the correct rule applicable to cases of this kind.
8. The leading case on the subject is the Privy Council judgment Atar Singh v. Thakar Singh (1910) 42 P.R.1910 in which the evidence simply showed that the alienor had acquired some land by purchase and some by abandonment by certain collaterals. However, the two classes of land had at the time of the alienation got so mixed up that it was impossible to predicate with regard to any particular portion of the land sold whether it fell within the first category or the second. Their Lordships of the Privy Council held that in the circumstances the whole of the land could not but be regarded as non-ancestral. The ratio decidendi of the decision is obvious. The plaintiff's right to contest the alienation being confined merely to land which he was able to prove to be ancestral, and he having been found to be unable to lay his hand any particular portion of the land alienated which could be held to have devolved upon him from an ancestor common to himself and the alienor, the Court had no alternative but to non-suit him in respect of the whole of the land. The facts as given in the report do not show if it was known what proportion the ancestral land bore to the entire land that had been alienated. However, even if that had been known I have no doubt that it would have made no difference at all to the decision of the case. Where a part of a particular plot of land is ancestral, but the whole is not, and the ancestral and the non-ancestral parts are inextricably mixed up, a Court may not hold an undivided share of that plot, proportionate to the ancestral land included therein, as ancestral. Such undivided share will be a share in both ancestral and non-ancestral land and, therefore a Court cannot characterise it as ancestral without treating as ancestral land which in fact does not bear that stamp.
9. The principle of the Privy Council judgment referred to above cannot, however, be extended to cases in which there has been no such inextricable mixing up of ancestral and non-ancestral land held by a land-owner, and all that has taken place is that in lieu of land which was partly ancestral and partly non-ancestral, but in which the ancestral and non-ancestral portions were quite separate and distinct from each other, such land-owner has got a certain plot of land, either by means of private treaty as in the case of exchange, or as a result of the general redistribution of the lands in the estate as in the case of consolidation of holdings; There is no reason why the whole of the land he has so got should be regarded as non-ancestral and why a share of such land bearing the same proportion to the whole as the ancestral portion of his original holding bore to such holding should not be regarded as ancestral. The land which he has got by exchange, or which has been allotted to him at redistribution, has itself not devolved upon him from any ancestor and cannot be regarded as ancestral in the strictest sense of the term. In case of the whole of the land given by him in exchange, or thrown by him into the hotchpotch, (being ancestral?) the whole of the land acquired by him or allotted to him, as the case may be, is to be regarded as ancestral because custom attaches to such land the same character as attached to the land originally belonging to him. If the latter, instead of being ancestral in its entirety, is only partially ancestral, the ancestral portion having however been kept quite separate and distinct from the non-ancestral portion, there can be no reason to regard the land obtained in lieu thereof as an inextricable mixture of ancestral and non-ancestral land and not to hold a share thereof, proportionate to the ancestral land that has been given in exchange or thrown into the hotchpotch, as ancestral. It may be that in a particular case the ancestral portion given in exchange or thrown into the hotchpotch may be so small as compared with the non-ancestral portion as to be almost negligible, or it may otherwise be not possible to find out what proportion the ancestral portion bore to the whole. In such a case on grounds of practicability or convenience the whole of the land got in exchange or at redistribution may well have to be regarded as non-ancestral. However, where the ancestral portion of the land so given or thrown was by no means negligible and bore a definite proportion to the whole of the land there can be no difficulty in apportioning the land acquired according to the areas of the two classes of such land, namely, ancestral and non-ancestral. I cannot believe that in cases of this type custom ever intended to stamp the whole of the land got in exchange or at redistribution as non-ancestral.
10. I of course do visualise a case in which a man gives in exchange, or throws into the hotchpotch, ancestral and non- ancestral lands of different qualities and different values, and accordingly it is not possible to postulate, possibly without an elaborate inquiry into the relative values of the two classes of land, that a particular and specified proportion of the land that he gets in return represents in value or otherwise the ancestral land given by him. In such an event the Court may, not without reason, hold that in the land which forms the subject-matter of the dispute, portions representing ancestral and non-ancestral lands respectively are inextricably mixed up and it is not even possible to tell what proportion one class of land bears to the entire holding, and in the result may have no alternative left but to regard the whole of the land as non-ancestral. However, even in such a case if the non-ancestral land given in exchange or thrown into the hotchpotch is so small in area or value as to be almost negligible I would not regard the entire land coming to the owner as a result of the exchange or redistribution as non-ancestral.
11. Unfortunately in the Subordinate Courts the tendency to deal with the question of the character of the land forming the subject-matter of Controversy in a most perfunctory and easy going manner is much too common. I have come across, quite a number of cases in which requests for permission to separate, with the help of relevant shajras, ancestral and non-ancestral lands appearing to be mixed up by reason of having been included in one field number, but alleged otherwise to maintain their separate existence have been summarily rejected. I can understand and appreciate summary rejection of such requests in cases in which, in view of the circumstances disclosed, the Court can reasonably regard the task of separating the two classes of lands as well-nigh impossible. Where small fragments of ancestral and non-ancestral fields have been thrown together and measured as one field, or where a number of ancestral and non-ancestral fields have been jumbled together and remeasured without any regard to the previous measurements, the fields as previously existing may reasonably be supposed to have lost their identity and the shajras will be of little help in demarcating separately the ancestral and the non-ancestral lands. However a case is conceivable where one whole field which was ancestral and another whole field which was non-ancestral were, at a later settlement, measured together as one field. In such a case it may not be difficult for a revenue expert, who knows his job, to separate one from the other with the help of relevant shajras. The task will indeed be an arduous and expensive one, but if any party is prepared to undertake it I can see no reason why he should not be allowed to do so. I do not mean to suggest that in cases of this type the Courts should go out of their way to issue commissions or otherwise undertake elaborate enquiries of their own motion. All I say is that if a party offers to lead, evidence in Court with the object of separating ancestral and non-ancestral land apparently mixed up the Courts should not refuse to admit such evidence. In the nature of things the evidence will generally be that of persons calling themselves revenue experts, and like all expert evidence, will require to be scrutinised with more than usual care. That, however, can be no reason for shutting out the evidence.
12. The tendency to try to find short cuts in the decision of judicial cases, particularly when some difficult question requiring special labour for its proper decision arises, discernible in the case of not only of some of our Subordinate Judges but also amongst some Judges exercising appellate jurisdiction, is most regrettable and must be deprecated. In quite a number of cases I have seen Judges declaring the whole of the land comprised in a holding non-ancestral where a certain undivided share of that holding had been clearly found to be ancestral in character. To regard such a share to be inextricably mixed up with non-ancestral land in the sense in which the expression is used in the Privy Council judgment in Atar Singh v. Thakar Singh (1910) 42 P.R.1910 is the height of absurdity and it pains one to see Judges of standing and experience falling into the error.
13. As has been stated above, the Courts below found that out of 35 bighas and 3 biswas of land which the vendors threw into the hotchpotch at the time of the consolidation of holdings, 34 bighas and 15 biswas was ancestral in their hands and Only 8 biswas was non-ancestral. Applying the principle laid down in the two Division Bench judgments of the High Court of Lahore mentioned above, it will appear that a 173/175th share in the 34 bighas and 2 biswas of land comprised in category 'A' must be held to be ancestral qua the plaintiffs.
14. In view of the above decision I accept this appeal and setting aside the judgments and the decrees of the Courts below remand the case to the learned Subordinate Judge for a decision of the other questions arising in the case in accordance with law.
15. In the circumstances of the case I leave the parties to bear their own costs incurred up to the present stage. The parties have been directed to appear in the trial Court on 22-4-1948.