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Revision No 32 of 1946‑4; decided on 8th November, 1949 from the order of Collector, Rawalpindi, dated 10:1; December, 1944. The case was referred by the Commissioner, Rawalpindi.

, S. 84 (3)‑Transfer of occu pancy rights not proved to be by a private contract‑Landlord cannot apply under S. 60 to declare the transfer void.

---The facts of this case are that Muhammad Bakhsh and Hayat Bakhsh were occupancy tenants in equal shares in holdings number 101/188 measuring 16 kanals 8 marlas and 100/182 measuring 12 kanals 1.6 marlas under Ghulam Muhammad and Sher Muhammad owners in village Mosiari, Tahsil Murree, District Rawalpindi Muhammad Bux had no issue while Hayat Bux had three sons, Muhammad Jan, Muhammad Hasham and Din Muhammad.

(2) Muhammad Bakhsh is alleged to have gifted his share to Muham mad Jan, his nephew, vide Mutation No. 102, dated 18^th September, 1911, when Sher Muhammad, one of the landlords, appeared before the Revenue Officer and admitted the gift. Muhammad Jan, however, con tinued in possession of 4 kanals and 17 marlas only out of 29 kanals 4 marlas of the tenancy. Even now he is holding this area. Thus it is clear that the gift was not acted upon as the possession of the gifted lend was handed over by the donor, Muhammad Bakhsh, to the donee, Muhammad Jan.

(3) Muhammad Jan applied for partition of land oil 4th September, 1940. His brothers objected to his title to claim two‑third of the land. The Revenue Officer ordered Muhammad Jan to bring a declaratory suit for establishment of his claim to 2/3rd and that that suit was brought in the Court of the senior sub‑Judge. Rawalpindi. Both the parties agreed to the appointment of Zatladar Said Akbar Khan as sole arbitrator, who arranged a compromise between them according to which the declaratory suit was dismissed as the parties had by common consent partitioned the land into three equal shares. The Patwari drew up the mutation No. 1353 in which he described the transaction as "sale". The landlords then insti tuted a suit under section 60 of the Tenancy Act. This was dismissed by the Assistant Collector. An appeal was then preferred to the Collector who .rejected the same. The landlords then went in revision to the Commissioner who made the present reference under section 84 (3) of tie Tenancy Act.

4. In his reference the learned Commissioner has used words which are rather indefinite. He says that " the effect of the Revenue Officer's order appears to be to transfer occupancy rights by a private contract." He does not definitely hold that there was an actual transfer of occupancy tights by private contract. He only, states that there appeared to him to be a possibility that there was such a transfer. The point for determina tion is whether a transfer of occupancy rights by private contract or other wise has actually occurred in this case.

5. It is the landlords who allege that there was actually a transfer of occupancy rights by sale or private contract. The onus lies on them to show that such a transfer actually occurred. The record of the case does not show that the landlords have discharged this onus adequately. So far as the order of the Civil Court is concerned it merely reads as follows :‑

The arbitrator has arranged the compromise between the parties according to which the plaintiff has received Rs. 360 before the Court from the defendants and according to the mutual consent the land has been divided in equal shares. The plaintiff's suit is, therefore, dismissed ". The applicant‑landlords want this Court to interpret this order to mean that this sum of Rs. 360 was paid as a consideration for the transfer of occupancy rights. The respondent‑tenants maintain that this money was not a consideration for any transfer of occu pancy rights but was for some other liabilities. To support their contention the respondent‑tenants have produced the arbitrator him self. The learned Counsel for the applicant‑landlords is enable to show me how he has discharged the onus of establishing that the interpretation of the Civil Court's order as giving by the arbitrator himself is incorrect. There is no adequate justification for holding that there was any actual transfer of occupancy rights by sale.

6. The next point for determination is whether there was any transfer of occupancy rights by private contract. In this case the alleged gift in favour of Muhammad Jan which is supposed to have increased his share from the normal 1/3rd to 2/3rd was, as explained above, never acted upon by actual delivery of possession. Till now Muhammad Jan continues to be in possession of 4 kanals and 17 marlas only. He was given a chance of obtaining a declaration from a Civil Court to the effect that his share 'hued increased to 2/3rd. This opportunity he has failed to avail of and he now, maintains that his share was only 1/3^rd. In these circumstances it cannot be held that there, was an actual transfer of occupancy rights by the alleged gift, which was subsequently altered by private contract. In my opinion no transfer of occupancy rights has actually occurred in this case which attracts the provisions of section 60 of the Tenancy Act. I see no adequate, ground for interfering, with, the unanimous findings of the k0sistant Collector and the Collector reject this application for revision.

Inform parties accordingly.

K.M.A. Revision rejected

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