Shamsher Bahadur, J.:— This judgment would dispose of the appeal (R.S.A No. 735 of 1956) preferred by the plaintiffs in the suits and also the cross-objections made against the appellate decree of the learned Additional District Judge, Jullundur.

2. The suit out of which the appeal and the cross-objections have arisen was instituted by the plaintiffs Teja Singh and 9 other persons, who, as fifth degree collaterals of Sant Singh, asked for possession of the following properties left by him on his death on 16th of June, 1952:—

(1) land measuring 40 kanals covered by khasra Nos. 833, 389, 390 and 198, in village Khurdpur of Tehsil Jullundur.

(2) Occupancy rights in respect of land measuring 14 kanals 1 maria in Khasra Nos. 42 and 1603 in Mauza Karyana.

(3) One house in village Khurdpur.

(4) One taur in village Khurdpur.

3. Sant Singh in his lifetime had effected a number of mortgages in respect of Khurdpur land in favour of his daughter Bishan Kaur, defendant No. 1, Hazara Singh, husband of Bishan Kaur, defendant No. 2, Charan Singh and Gurmit Singh defendants Nos. 3 and 4 sons of Hazara Singh, and Sohan Singh defendant No. 5. Ultimately, Sant Singh made a gift of the entire property by a registered deed of 25th of March, 1952 in favour of his daughter Bishan Kaur. The plaintiffs challenged all these alienation on the ground that they were made without consideration and legal necessity in respect of property which was ancestral. The plaintiffs were stirred into action soon after the death of Sant Singh and the present suit was brought on 20th of August, 1952. The pleas raised by the defendants were many and the suit was resisted on every conceivable ground. The locus standi of the plaintiffs as collaterals was challenged, the validity of the mortgages and gift was pleaded in defence and the suit property was asserted to be non-ancestral.

4. In the first instance, the suit was dismissed by the Court of Shri H.D Loomba, Senior Subordinate Judge, Jullundur, on the ground that the property had not been proved to be ancestral. All other issues however were decided in favour of the plaintiffs. It was held that the mortgages were without consideration and necessity, the plaintiffs were collateral of Sant Singh deceased within five degrees and the gift was bad involving, as it did, transfer of the entire property of the donor and also because it had not been established to have been made in lieu of services. On appeal preferred by the plaintiffs to the Additional District Judge, Shri J.N Kapur, the case was remanded on 18th of June, 1955 for a fresh decision after an opportunity had been accorded to the parties to lead further evidence with regard to the ancestral nature of the property.

5. The Court of Shri H.D Loomba recorded further evidence with regard to the ancestral nature of the land and he reiterated his previous conclusions on this aspect of the case. In the result, the suit was again dismissed on 10th of November, 1955. The plaintiffs going in appeal again, attained some measure of success. Regarding the Khurdpur land it has been found that 2 kanals and 18 marlas out of 40 konals is ancestral while the rest has been found to be non-ancestral. The occupancy rights in Karyana land measuring 14 kanals and 1 marla have been found to constitute ancestral property. The suit by the lower appellate court has been decreed in respect of the property found to be ancestral. The plaintiffs have filed the Regular Second Appeal (R.S.A No. 735 of 1956) in respect of the undecreed portion of the Khurdpur land while the defendant, Bishan Kaur, has preferred cross-objections regarding the occupancy rights of land in Karyana and 2 kanals 18 marlas of Khurdpur land found to be ancestral property by the lower appellate Court. It may fee observed here that the other findings given against the defendants no longer survive adjudication. In other words, the question of the validity of the mortgages and the gift is no longer a live issue. I mention this circumstance because it would have an important bearing when I come to deal with the cross-objections.

6. The facts on which the findings of the Courts below are based have not been disputed. The concurrent findings of the two Courts below in respect of the house and taur being non-ancestral is not challenged before me in second appeal by the plaintiffs. The area of dispute so far as the plaintiffs' appeal is concerned is thus confined to a determination of the question whether the land in Khurdpur should be regarded as ancestral or not. The excerpts, Exhibits P.W 8/1 and P.W 9/1 adduced in evidence after the remand disclose that the holding of Khurdpur can be split up into four categories:—

(a) land measuring 23 kanals 16 marlas has been traced to the common ancestor of the parties, Prem Singh.

(b) land measuring 1 kanal 8 marlas is traced to shamilat.

The remainder of the land can be categorised into two classes:—

(c) some portion of it has been traced to shamilat and Prem Singh, the common ancestor,

(d) some shamilat land has been traced to strangers.

7. I may refer to two circumstances before I discuss the legal question which has been raised in this appeal. Prem Singh, who was admittedly the common ancestor of the plaintiffs and Sant Singh deceased left behind three sons, Jiwan Singh, Lehna Singh and Nand Singh. On the death of Jiwan Singh on 16th July, 1895 the land belonging to him was mutated in the names of his two daughters Anokhi and Premi and ultimately by mutation No. 19 it went to Anokhi on the death of Premi. After the death of Anokhi the land came to Sant Singh alone and this shows that he acquired it rot by inheritance. It is also important to remember that Nand Singh, the third son of Prem Singh, did not inherit any land at all. It is no doubt true that some portion of Khurdpur land was held by the common ancestor Prem Singh but it has not been shown to have come by succession to Sant Singh and further Nand Singh not having acquired any portion of the land it cannot be said that it has come to Sant Singh from generation to generation.

8. I come now to deal with the legal aspect of the case. It is indisputable that a substantial portion of the non-ancestral land has got mixed up with the ancestral one. The portions of shamilat which have descended through strangers are definitely non-ancestral. The Privy Council authority having bearing on these facts is that of Atar Singh v. Thakar Singh . 42 P.R 1910.. In that case the holdings of one Dhanna Singh constituted of land which he had acquired by purchase and other portions which he got through abandonment of other persons who may have been collaterals and could thus be regarded as ancestral but there was no evidence whatever defining the boundaries of these portions respectively and it was impossible to differentiate between the portions which came from relatives and co-sharers and the portion which may have in some instances been purchased. Their Lordships of the Privy Council held that the onus of proof lay on the plaintiffs to establish that the land was ancestral and such a finding could not be given in a situation like that and the plaintiff could derive no assistance from conjectures however reasonable in place of positive proof. In a Division Bench judgment of the Lahore High Court in Labh Singh v. Mt. Jasso . A.I.R 1938 Lah. 180., it was held by Dalip Singh and Skemp JJ. that “if a Court is unable to find what proportion of land is ancestral and which is non-ancestral the whole must be held to be non ancestral.” Nobody has been able to say with any precision, in the present instance, about the proportions of ancestral and non-ancestral land and the boundaries thereof. It would thus been impossible adventure to explore which portions of the Khurdpur land under the holding of Sant Singh could be regarded as ancestral or non-ancestral. It is also difficult to premise about the valuation of the respective parcels of land which may be regarded as ancestral and non-ancestral. For a determination of this aspect of the matter Achhru Ram, J. laid down I a pragmatic test in Gurdev Singh v. Dasaundhi . A.I.R 1948 E.P 22.. He observed that in a case where ancestral and non-ancestral portions of the holding are inextricably mixed up it may still be possible to determine their proportion by a detailed investigation on the spot. Achhru Ram J. however, visualised a position where “a man gives in exchange or throws into the hotchpotch, ancestral and non-ancestral lands of different qualities and different values,” and accordingly it becomes difficult to postulate, “without an elaborate inquiry into the relative values of the two classes of land.” In such an event according to Achhru Ram J. “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 as non-ancestral.” It was also envisaged that where a portion of the non-ancestral or ancestral land is so small as to form a negligible proportion to the other, the entire land may be held to bear the character of the substantial portion.

9. The decision of the Division Bench of the Lahore High Court in Mihan Singh v. Piara Singh . 1946 48 P.L.R 536. (Abdul Rashid and Mahajan JJ.) relied upon by the counsel for the appellant is distinguishable because in that case out of a total holding of about 77 kanals, 67 kanals and 15 marlas has been established to be ancestral. In a situation where the lands are mixed up there is no rule of universal application and one is to be guided by practical considerations of the sort indicated by Achhru Ram J. in Gurdev Singh v. Dasaundhi. It is significant to observe that in the instant case no question was asked from the Moharrir Patwari who produced the excerpts about the feasibility of separation of the ancestral and non-ancestral portions of the land under the holding of Sant Singh. Indeed, this aspect of the case has been developed for the first time in second appeal to this Court and at this stage it would neither be fair nor just to direct a further inquiry into this matter when the plaintiffs themselves have not suggested any practical solution of the problem in my opinion, the judgment of the trial judge in respect, of Khurdpur land is correct and the lower appellate Court should not have embarked upon the task of separation of the ancestral and non-ancestral shares, but as, in my opinion, the cross-objections of the respondent must fail on the ground which I am shortly going to indicate, I would not disturb the finding of the learned Additional District Judge and in the result the appeal would stand dismissed.

10. I now come to deal with the cross-objections. Mr. Gujral, the learned counsel for the appellants, submits by way of demurrer that the memorandum of cross-objections bearing court-fee stamp of Rs. 12/12/- cannot be entertained. The court-fee on the plaint and also the appeal has been computed at ten times the land revenue. On this calculation the court-fee on the memorandum of appeal is Rs. 80/- and it is not challenged that the court-fee of Rs. 12/12/- on the cross-objections on this basis of computation is also correct. It is, however, urged that the court-fee on cross-objections must be on an ad valorem basis under Article 1, Schedule I of the Court-fees Act and it matters not if the memorandum of appeal could have been filed on a court-fee of much lesser value. It may be somewhat strange that while the defendant's appeal with respect to the portion of the land decreed against her would have been quite valid on a court-fee of Rs. 12/12/-, full ad valorem court-fee of much greater value than even the court-fee which was affixed in the plaint has to be paid for the cross-objections. In matters of court-fee, however, we have to deal not with anomalies but with the realities of the law. The Courts cannot apply the touch-stone of logic or reason to the contents of the provisions relating to court-fee. As there was some conflict of authority this matter was referred to a Division Bench of this Court and it has been held by Tek Chand and P.C Pandit JJ. in Civil Miscellaneous No. 894-C of 1958 in R.F.A No. 60 of 1958 decided on 19th of October, 1960, that ad valorem court-fee has to be paid on cross-objections.

11. Even on merits there is no force in the cross-objections in respect of the Kan and land. It has not been controverted that the owner of this land was a Muslim who migrated to Pakistan on partition. Normally, under the Punjab Occupancy Tenants (Vesting of Propriety Rights) Act, 1952 (Punjab Act No. VIII of 1953), the rights in this land would have vested in the occupancy tenant by virtue of section 3 which declares that “all rights, title and interest ……of the landlord in the land held under him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant……” Section 9 of the Act, however, excludes evacuee property from the operation of the Act. That the landlord who was an evacuee had an interest in the land admits of no doubt. In fact it was his right which was to be extinguished under section 3 of the Act and even though the occupancy tenant who was to be made a proprietor was a resident of India, the subject matter of the transfer was owned by an evacuee and must, therefore, be treated as “evacuee property.” Sant Singh died on 16th of June, 1952, while the legislation which vested the rights of a proprietor in an occupancy tenant was enforced with effect from 15th of June, 1952. Under section 59 of the Punjab Tenancy Act, the rights of an occupancy tenant devolve on his male lineal descendants, who are the plaintiffs in this case. The plaintiffs, therefore, became occupancy tenants after the death of Sant Singh as the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act excluded from its purview evacuee lands. It is argued by Mr. Nayar, the learned counsel for the respondent, that any transfer made of a right of occupancy in contravention of the foregoing provisions is voidable only at the instance of the landlord under section 60 of the Punjab Tenancy Act. The transfer having been made by Sant Singh in favour of his daughter could have been avoided at the instance of the landlord and he not having done so it has become unchallengeable. In my opinion, this argument cannot be sustained. It would be noticed that the deed of gift has been challenged in the present litigation and it has been concurrently found by the Courts below that the transfer was void. This finding has not been questioned in second appeal. There was no landlord to challenge this gift, he having migrated to Pakistan. In effect, therefore, the occupancy rights in Karyana land continued to vest in the plaintiffs and the respondent cannot derive any benefit even by the subsequent legislation embodied in the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Amendment Act, 1958, under which an occupancy tenant of a landlord who became an evacuee would hold the land as a proprietor but not with any retrospective effect. The subsequent amendment could, therefore, benefit the plaintiffs and not the defendant. I would accordingly dismiss the cross-objections also.

12. Thus, both the appeal and the cross-objections are dismissed but I would make no order as to costs.

13. Appeal dismissed.