JUDGMENT

1. This is an appeal against an order or decree of the District Judge of Saharanpur awarding to the appellants 22/40 and to the respondent Mrs. Powell 28/40 of the sum of Rs. 7,768-8 awarded by the Superintendent of Dehra Dun as compensation for certain land taken up under the Land Acquisition Act for public purposes. It is not now disputed that Rs. 7,768-8 represent the fair value of the property taken up, and the only question for decision now is how this sum should be divided between the appellants and the respondent Mrs. Powell. The Superintendent proposed to award to the appellants the whole of the above sum except Rs. 144 which he considered to be the value of Mrs. Powell's interests in the land. She objected to this and the Superintendent referred the matter to the District Judge. Mrs. Powell's case was that she was virtually the zemindir of the land and that the appellants were only nominally zemindars and were entitled at best to cmpensation calculated on the amount of rent paid by her to them. That rent was Rs. 12 per annum, and her suggestion was that the zemindars should be awarded Rs. 144 only. The reference by the Superintendent was made to the District Judge early in 1910. A date was fixed for the hearing of she case in Jane 1910 and it was decided that the case should be taken up at Dshra Dun. On same day in June, the exact date is not clear, it seems to have occurred to some one that the appellants were interested in the case as, of course, they were, and on June the 13fch notice was issued to the appellant Hirdey Narain that the case would be taken up on the following day. Notice was served upon Hirdey Narain on the 13th of June at 9 P.M. He appeared before the Court on the following day and as the Judge observes, very reasonably asked for time. On that day two witnesses only were examined for Mrs. Powell, and the case was adjourned to June the 22nd to be heard at Mussoorie. It was taken up on June the 25th. Witnesses were examined on that day and on the 26th, one witness only being produced by Hirdey Narain. Here we may mention that although Maharaj Narain seems to have a share in the property no notice was issued to him. But this is not made a ground of complaint here and for present purposes Maharaj Narain may be disregarded. The object of Mrs. Powell seems to have been to prove that occupancy tenants like herself were entitled to build upon their land and also to transfer it to whomsoever they pleased. An extract from the Wajib-ul-arz of the village was put is and several witnesses were called and questioned as to the rights of occupancy-tenants in the village in question and in the adjoining villages. It is unnecessary for us to examine this evidence in detail. The wijib-ul-arz does not lay down that occupancy-tenants can transfer their rights. It says only that certain kashtakars can build houses without the permission of the Landlord. The oral evidence on the point is quite worthless. The District Judge has arrived at the conclusion, as we understand his judgment that occupancy-tenants in the suburbs of the town of Dehra Dun which include the village in question are practically sub-proprietors who are entitled to transfer their rights and need only pay a quit-rent to the zemindars. In arriving at this conclusion he made use of some remarks made by Mr. Dampier in a Rent Rate Report for the Dehra suburb circle. It is not contended here that these remarks are admissible in evidence. They ought to have been excluded, and even if they are admitted, we consider that they are not sufficient to show that Mrs. Powell is entitled to transfer her rights in the land. She is recorded, or rather the person through whom she claims is recorded, as occupancy-tenant of the land.

2. According to the present law, she is not entitled to transfer her rights. No issues were fixed in the case. The point which the District Judge had to decide was how the sum awarded by the Collector as compensation for the land was to b