JUDGMENT
1. This is an appeal by one defendant out of a large number of parties to a partition suit instituted in the Civil Court. Govind 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 Musamma 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 Govind Ram sold his one fifth share that he claimed in the same three properties to Ram Chandar Sahai. On the 15th of August 1912 Ram Saran transferred to Ram Chander Sahai the rights and interest that he had acquired from Hari Ram and Anand Ram on the 14th of February 1912. In this way, Ram Chandar Sahai purported to have acquired the whole three-fifths share claimed by Govind Ram, Hari Ram and Anand Ram in the three Khatas mentioned. On the 21st February 1914, i.e., after the preliminary decree, Ram Chandar Sahai sold to Kalyan Singh all the interests that be bad 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 Govind 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 had been prepared. The preliminary decree came up to this Court on appeal, where it was upheld, and that, no doubt, explains the delay in the preparation of the final decree. The present appallant was made a party to the suit on the 10th of April 1917. On the 20th of April 1917 all the other parsons who were parties to the suit filed a petition of compromise in the Court below in respect to what they considered as the non Zamindari property, setting forth certain lots and asking that those lots might be decreed to these 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 (SIC) non-Zamindari property, item No. 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 as 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 Jahan 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 not 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 or 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 classes (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 Pattas 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 rates fixed by the Board of Revenue if a Zemindar 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 Zemindars 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 by it beyond a shadow of doubt that this Parao actually bears Khasra No. 952, that 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 affect 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 of 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. There remains the question whether the appellant has any share whatsoever in this Parao. The lower Court has come to the conclusion that, because the Parao is mentioned in list A of the plaint and Khata Khewat No. 65 is mentioned in list B of the plaint, therefore, Hari Ram, Govind Ram and Anand Ram were treating the Parao as a separate entity, and that when they purported to transfer their shares in Khata Khewat No. 65 they did not intend to transfer any share in the Parao. The area of Khata Khewat No. 65 is 5 bighas, 12 biswas. In the sale deed which these persons executed they distinctly stated that they sold the shares which they claimed, i.e., two fifths in the one sale-deed and one-fifth in the second sale-deed out of the total area of 5 bighas, 12 biswas of this Khata. They similarly mentioned the areas of the other two Khatas which they also sold. Now, this area 5 bighas, 12 biswas, being the area of the whole Khata, includes the area of the Parao. There is nothing in the sale deeds to show that the Parao was exempted in any way. Thus, in all the various transfers which bring us down to the deed in favour of the appellant, the same description has been used, the total area of each Khata has been given and the areas of the shares transferred have also been given. In Kalyan Singh's sale deed in favour of the appellant he merely purports to transfer the one-fifth share without specifying the area of the one fifth share. On the basis of these sale-deeds it is impossible to say that Mahmud Jahan Begam is not the owner of a one-fifth share in every portion of Khata Khewat No. 65 which includes the Parao. If Hari Ram, Govind Ram and Anand Ram wished to exempt this Parao from their sale-deed it was very simple, indeed, for them to have done so and, in fact, if they had done so they would have distinctly stated that the area of the shares which they were selling was the total area of the Khata minus the area of the Parao. Bat the very fact that they specified the full area goes to show that they did not wish to exempt any area of the Khata from the sale. So far as the Parao land of this Khata is concerned, the plaintiff ought to get her one-fifth share therein. We would like to point out here that the learned Subordinate Judge has been guilty of some exaggeration when he says that the Parao is an encamping ground in the heart of the City of Meerut, and that it is studded with shops (SIC) and pucca. The Parao, as a matter of fact, lies on the edge of the city and not within the heart of it. In one direction it is bounded by cultivated land. The map on the file shows that the portion on which the shops stand is very minute, as compared to the area of 1 bigha, 4 biswas; only 4 biswas of the Parao is covered with house property, the rest of it is waste land. The learned Subordinate Judge was also of opinion that the assessment of Municipal taxation upon the houses, (i.e., the Municipal house-tax) is also a solid proof that the land is not part and parcel of the Mahal. When he has had more experience of revenue matters he will find that it is not an infrequent occurrence that there are many portions of (SIC) Mahal which not only pay Government revenue but also Municipal taxation. One would think that in the town of Meerut one would find innumerable instances of this. 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.