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Reference made to Financial Commissioner under section 16 (3) of the Punjab Land Revenue Act by the Commissioner, Rawalpindi Division in partition proceedings. Case remanded on 27th April, 1948.

, S. 16 (3)-Material irregularity committed under S. 117-Interference by financial Commissioner justified. The failure on the part of the officer conducting the partition to decide the question of title in the manner required by law is a material irregularity and interference is justified.

, S. 117-Officer should decide the question of title according to law.

The Assistant Collector did not de al with the question of title in the manner prescribed by section 117 of the Punjab Land Revenue Act, 1887, read with paragraphs 18'8 and 18'9, Chapter i8 of the Punjab Land Records Manual. 1916 P R 6 ; 1932 L L T 43 and 1932 L L T 61, relied on Mahmud Ali for Petitioners.

Muhammad Amin Khan for Respondents.

This case has been sent up by the Commissioner, Rawalpindi Division, under section 16 (3) of Punjab Land Revenue Act, 1887, with the recommendation that I should interfere in the order, dated 3rd July 1943, passed by the Collector, Gujrat, whereby he confirmed the order, dated 11th January 1943, of the Assistant Collector, 1st Grade, Phalia.

Briefly the facts are that respondent No. 1 applied for partition of certain proprietary land in village Wara Alam Shah. Tahsil Phalia, which wag jointly owned by him with others including the petitioners. The petitioners objected to the partition urging inter alia that respondent No. 1 had never been in cultivating possession of any part of the land desired to be partitioned and was not competent to apply for its partition until he got his title to do so determined by a competent Court. The Assistant Collector, 1st Grade, overruled these objections on the main ground that Salihon, respon dent, being recorded in the jamabandi as a joint owner of the land in dispute, could claim its partition without recourse to a competent Court. The Collector, on appeal, upheld the order of the Assistant Collector remarking that Salihon being one of the several co-sharers of the land was, according to the entries in the jamabandi of-1937-38, in possession of a part of the land and that it was unjust to disallow a co-sharer to claim, for partition simply because the other co-sharers were in possession of a major part of the land.

Counsel on both sides have been heard. It is clear that in the 1amabandi of 1937-38 respondent No. 1 is recorded as a co-sharer. But it is only against khasra No. 706 (consisting of 4 kanals 4 marlas of which 1 kanal 4 marlas is described as chhabri and 3 kanals as Banjar qadim) that he is shown in possession, the possession being probably more in the nature constructive possession than actual. It is interesting that in the previous jamabandi the whole of this khasra No. was recorded as chhabri. It is not known how this khasra No. has been shown in the subsequent records prepared in connection with the consolidation of holdings, which was in progress when the application for partition was made. The Assistant Collector did not deal with the question of title, in the manner prescribed by section 117 of the Punjab Land Revenue Act, 1887, read with paragraphs 18'8 and 18'9, Chapter 18 of the Punjabi Land Records' Manual. That he should have done so is clear from 1983 P R 6. As held in 1933 L L T 43 and 1.932 L L T 61 failure on the part of the officer conducting the partition to decide the question of title, in the manner required by law, is a material irregularity justifying interference in revision Agreeing with the learned Commissioner, therefore. I set aside the order, dated 3rd July 1943, passed by the Collector, Gujrat, as well as the order, dated the 11th January 1943, of the Assistant Collector, 1st Grade, and return the case to the Assistant Collector concerned for proceedings afresh in accordance with law.

K. M. A. Case remanded

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