JUDGMENT Tudball and Kanhaiya Lal, JJ.
1. This is an appeal by one defendant out of a large number of parties to a partition suit instituted in the Civil Court. Gobind Ram, Hari Ram and Anand Ram sued for partition of their shares in certain properties claiming a three-fifths share therein. The property consisted of house property and some zamindari and other miscellaneous properties. Among the items of properties which they sought to divide were three items, namely khata khewat No. 35, khata khewat No. 65 and khata khewat No. 66 in qasba Meerut. While the suit was pending Anand Ram died and was succeeded by his two daughters, Musammat Bhagwanti and Musammat Sita. A preliminary decree for partition was passed on the 17th of September, 1913, under which the three plaintiffs were held entitled only to a one-fifth share and not to the three-fifths that they claimed. While the suit was pending, i.e., on the 14th of February, 1912, Hari Ram and Anand Ram sold to one Ram Saran Das a two-fifths share in khata khewats Nos. 35, 65 and 66 which they claimed in the suit. This of course was prior to the preliminary decree. On the 20th of February, 1912, Gobind Ram sold his one-fifth share that is claimed in the same three properties to Ram Chandar Sahai. On the 15th of August, 1912, Ram Saran transferred to Ram Chandar Sahai the rights and interests that he had acquired from Hari Ram and Anand Ram on the 14th of February, 1912. In this way Ram Chandar Sabai purported to have acquired the whole three-fifths share claimed by Gobind Ram, Hari Ram and Anand Ram in the three khatas mentioned. On the 21st of February, 1914, i.e., after the preliminary decree, Ram Chandar Sahai sold to Kalyan Singh all the interests that he had acquired in these three khatas, He purported to sell a three-fifths share therein. On the 26th of March, 1917, Kalyan Singh transferred his rights and interests to the present appellant, Musammat Mahmud Jahan Begam. In his sale-deed he sets forth all the previous transfers made by Gobind Ram, Hari Ram and Anand Ram of a three-fifths share; the fact that they have been held to be owners only of a one-fifth share was set out plainly and simply and also that he transferred his interests to the present appellant. Up to that time no final decree ha 1 been prepared. The preliminary decree came up to 'this Court on appeal, where in was upheld, and that no doubt explains the delay in the preparation of the final decree. The present appellant was made a party to the suit on the 10th of April, 1917. On the 20th of April, 1917, all the other persons who were parties to the suit filed, a petition of compromise in the. court below in respect to what they considered as the Dan-zamindari property, setting forth certain lots and, asking that those lots might be decreed to those persons to whom they had been allotted by the compromise, As for the zamindari property it was held that it could only be divided by the Revenue Court under the terms of the Land Revenue Act. Mahmud Jahan Begam was no party to that compromise and if that compromise had dealt only with the property which was apart from the share acquired by her in khata khewats Nos. 35, 65 and 66, then she was not a necessary party to it. Her rights and interests were divisible by a partition in the Revenue Court. Mahmud Jahan Begam raised at least two objections with which we are concerned in this appeal. An examination of the plaint will show that there are attached to that plaint two or three lists of property. List A was a detail of immovable non-zamindari property, item 10 of which was a parao or an encamping ground together with thatched shops, for the sale of chaff and fuel, situated in the city of Meerut bounded as below. In list B item No. 8 was 5 bighas 12 biswas pukhta of land bearing a jama of Rs. 65, entered in the khewat aa a khata khewat No. 65 situate in the resumed Lakhiraj mahal in qasba Meerut, district Meerut. Mahmud Jahan Begam's first plea was that this parao is part and parcel of khata khewat No. 65, that the land thereof could not be divided by the Civil Court as it was part of a mahal, that it was not, therefore, divisible under the compromise and that she was entitled to a one-fifth share therein. The court below held that the parao not being assessed to Government revenue was divisible by the Civil Court and not by the Revenue Court, and secondly that Mahmud Jahao Begam had acquired no share in the parao under the sale-deeds which we have mentioned above.
2. The lower court's finding, on both these points have been contested before us. So far as the liability of the site of the parao to be divided by the Civil Court is concerned we have to see whether or not it is a part and parcel of a mahal as defined in the Land Revenue Act. The evidence of the patwari, Ishwari Prasad, is to the effect that the parao has a khasra No. 952 and that it is included in the khata khewat No. 65. He says that this parao has nob been assessed to revenue and the rest of the khata khewat No. 65 is assessed to revenue. The lower court has held that it is liable to be partitioned by the Civil Court because it is not assessed to Government revenue and because it is abadi land with which the revenue courts have no concern. It says that a mahal is a revenue-paying unit and since the parao is not assessed to revenue it is not part of the mahal and therefore Section 233(k) of the Land Revenue Act is not a bar to the partitioning of abadi land by the Civil Court. With this decision of the learned Subordinate Judge we are unable to agree. The word "mahal" as defined in Section 4 of the Land Revenue Act is (a) any local area held under a separate engagement for the payment of land revenue provided that if such area consists of a single village or portion of a village, a separate record of rights has been framed for such village or portion, a mahal also includes (b) any revenue free area for which a separate record of rights has been framed. With class (c) and (d) of the definition we are not concerned. Ordinarily speaking in a mahal there are many plots of land which, speaking colloquially, are not assessed to revenue, i.e., there is no income derived from them which is to be taken into consideration at the time of the assessment of revenue. Roadways, uncultivated plots and even abadi sites of villages are all within the boundaries of a mahal, although no income may be derivable from them. The total income of the mahal is taken into consideration at the time of settlement, and on that, as a basis, revenue is fixed upon the whole mahal and the whole mahal is held under one engagement for the payment of revenue. A mahal may be, and frequently is, divided and sub-divided into many different pattis and khatas and the revenue is distributed over these sub-divisions. Each of these sub-divisions may contain land which is waste like the present parao land and the income from which may or may not have been taken into consideration in the fixing of the revenue. But the fact remains that all areas within the mahal are primarily responsible for the revenue of the mahal. Equally so in the case of a khata, which is but a sub-division of a mahal. In former days, under the rules fixed by the Board of Revenue, if a zamindar planted trees upon cultivated land in his mahal, when the grove was well established Government used to reduce the revenue of the area planted with trees. That was done as an inducement to zamindars to plant groves; the area thus granted, though free in a way from Government revenue, yet was part and parcel of the mahal and the whole mahal remained responsible to Government for the revenue assessed upon it. In the present case the patwari's evidence leaves it beyond a shadow of doubt that this parao actually bears Khasra No. 952, that it is within khata No. 65, and though it may be that revenue was not fixed upon it still it remained a part and parcel of the khata and therefore responsible to Government for the total revenue fixed upon that khata. There can be no doubt that if the revenue was not paid Government would be within its right if it attached and sold this parao land for the purpose of recovering the revenue. This parao (i.e., the site and not the houses that may be standing upon it) is therefore part and parcel of the mahal and as such is divisible by a partition suit in the Revenue Court. In so far, therefore, as the decree by the lower court purports to divide up the area of this parao is concerned it is bad and we must set it aside. It must be carefully noted that this does not aSect the division of the house property standing upon it. House property is property which cannot be divided or partitioned by a Revenue Court. It is only the site of these houses in so far as they are part and parcel of the mahal that a Revenue Court can divide. We would like to point out to the court below that partition of sites, i.e., abadi land in similar circumstances is done every day by those courts and the power of Revenue Courts to divide up the abadi land has never yet been questioned.
3. There remains the question whether the appellant has any share whatsoever in this parao.
4. On the evidence it was held that the appellant had a one-fifth share in the parao.
5. We, therefore, allow this appeal. We set aside the decree of the court below in so far as it operates on the land of the parao. So far as it has divided the house and other properties standing upon the parao the decree will stand. We also declare that the land of this parao is part and parcel of khata khewats Nos. 65 and 66 and that Mahmud Jahan Begam is entitled to a one-fifth share therein and that this property is divisible only by a partition under the Land Revenue Act.