P L D 1975 Lahore 470 (PLP)

This appeal has arisen out of a usual customary suit for possession brought by Rehmat Ali appellant against Qasim, Hasham and Lal respondents Nos. I to 3, respectively, in respect of 68 kanals 7 marlas of land sold by his father Barkat Ali by means of registered sale-deed, dated the 16th of August 1940 (Exh. P. 2). Fazal Elahi respondent No. 4, a brother of Rehmat Alt, was impleaded as a pro forma defendant. The suit land was found by the trial Court to be non-ancestral qua the appellant. The issue of consideration and legal necessity was also answered against the appellant. The suit was accordingly dismissed. On appeal, the learned District Judge has come to. the finding under issue No. 2 (pertaining to character of the property), on scrutiny of the excerpt Exh. P. W. 2/2, that out of the total land sold measuring 68 kanals 7 marlas, only an area of 30 kanals is non ancestral. The rest has been held to be ancestral qua the appellant but relief has been refused on the ground that the ancestral property has been intermingled with the non-ancestral property and the personal holding of the alienees. On the issue of consideration and legal necessity, the finding of the trial Court has also been modified and it has been hell that though the sale was for consideration, legal necessity with respect thereto, to the extent of Rs. 471.00 has n )t been proved, and if issue No. 2 had been decided in favour of the appellant, he would have been entitled to his share out of the ancestral part of the land sold on payment of proportionate sum for which the sale had been proved for necessity. Feeling aggrieved, the appellant has come up to this Court.

2. The only point agitated on behalf of the appellant is that the learned District Judge having fund that 38 kanals 7 marlus of land alienated by Barkat Ali is ancestral qua the appellant, refusal to grant a decree for possession on toe ground that because after the sale the holdings in the estate had been subjected to consolidation proceedings and the land alienated has been mixed up with the holding of the alienees themselves, the entire land will be considered to be non-ancestral, is legally infirm. The facts as proved on the record are that the land sold by Batkat Ali comprising both ancestral and non-ancestral was 68 kanals 7 marlns. The Patwari of the estate examined as P. W. 1 has stated that before consolidation the alienees had a holding of 30 kanals 3 marlas of their own and after consolidation they have been given a total area of 103 kanals 8 marlas. Now the purchase from Barkat Ali has been held to be ancestral to the tune of 38 kanals 7 marlas. It can, therefore, be safely said that the holding of the alienees measuring 103 kanals 8 marlas, after consolidation comprised 38 kanals 7 marlas of ancestral land, 30 kanals of non-ancestral property and 39 kanals 3 marlas of their personal holding prior to purchase, totalling 98 kanals 10 marlas i.e., about 5 kanals in excess of the land surrendered by them. The Khasra numbers and the area (66 kanals 4 marlas) given in consolidation proceedings against the land purchased by the alienees are available in Exh. P. 3 the Jamabandi for the year 1942-43, and there was no difficulty in granting a decree for a proportionate area out of the holding after consolidation as there has been no mixing up of the area purchased and their original ownership. Now the ancestral and non-ancestral land is also not difficult to discover. The ancestral area is a little over 50% and a decree in this ratio could have been passed by the District Judge. A similar case came up before the Lahore High Court in Havaldar Mihan Singh and others v. Piara Singh and others (1946)48 P L R

536. According to this authority ancestral property after consolidation would not lose its character if it comprised ancestral and non-ancestral land prior to consolidation. Learned counsel for the respondents hag, however, relied on Mst. Nawab Bibi v. Bashir and others P L D 1967 S C 55 and has argued that because the ancestral property got mixed up with the non-ancestral property of Barkat Ali, as also the personal holding of the alienees, the District Judge was justified in refusing to grant a decree for possession because the property had gone into the hotchpotch and it was not possible to ascertain the relevant Khasra numbers or the area held to be ancestral. The proposition of law enunciated in Atar Singh and others v. Thakar Singh 42 P R 1910 and thereafter in Mst. Subhani and others v. Nawab and others AIR 1941 PC21 and Imam Din v. Mst. Said Bibi P L D 1948 P C 290 has found favour with the learned Judges of the Supreme Court in Mst. Nawab Bibi v. Bashir and others. The case before their Lordships had a distinguishing feature as is evident from the following passage appearing at page 61 of the report :- "Mr. Muhammad Anwar Buttar, who appeared for the respondents, tried to offer an explanation as to why some Khasra numbers were not exclusively traced to the proprietary Khata No. 21 of 1965, or to shamilat numbers. Reference was made by learned counsel to the fact that in the Jamabandi of 1942-43, in Khata No. 591, the descendants of Ghulam hell only one-third share, out of which a half was gifted away by Karam Dad. The rest of the owners of this joint Khata are not members of Ghulam's family. It is, therefore, argued that it is not surprising that some of the Khasra numbers in suit, situate in a joint Khata, held by the descendants of Guulam and others, should be traceable to some other proprietary Khatas of 1865 partly, though in those Khatas Ghulam's descendants do not figure. But this does not explain why a Khata, held jointly by Ghulam's family and others now, should be traceable in part to a joint Khata of 1865 and to some Khatas exclusively held by third parties, having no connection with Ghulam. If some Khatas of the suit-lands are jointly held now by Ghulam's descendants and others, the position ought to have been the same in the 1865 Settlement. This is by no means the case." The instant case is covered by Havaldar Mihan Singly and others v. Piara Singh and others. The ancestral and non-ancestral parts of the property are not inextricably mixed up. The learned District Judge has been able to trace out the ancestral part with reference to the Khasra numbers given in Exh. P. 3, the Jumnbandi for the year 1942-a

3. All that has taken place after the sale is that in lieu of the 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, the alienees have been given a slightly larger holding (including their personal property) as a result of general re-distribution of the laud in the estate under the Punjab Consolida tion of Holdings Act, 1936. Thus there can be no difficulty in apportioning the ancestral and non-ancestral parts and granting a decree for possession at least proportionate to the ancestral property out of the new holding in the bands of the alienees. On this view of the matter, the alienation made by Barkat Ali in favour of respondents Nos 1 to 3 being void and inoperative against the interest of the appellant, the appeal partly succeeds and is allowed to the extent that the appellant is granted a decree for possession of his share out of the 1324/1367 of 38 kanals 7 marlas, i.e., about 37 kana's 2 marlas of the suit land on payment of proportionate sum for which the sale has been found for necessity. There will be no order as to costs. S. A. H. Appeal partly allowed.