1. These are four appeals against four judgments and decrees, dated 16th September 1940, of the Additional Civil Judge of Moradabad by which he reversed four judgments and decrees, dated 19th January 1940, of an Assistant Collector, First Class, Bijnor, in four suits under Section 221, Agra Tenancy Act (3 of 1926) brought by a lam-bardar for recovery of arrears of revenue against certain cosharers. The plaintiff, Murari Lal, is the lambardar of mahal Surkh 4 biswas of village Gangunagla and appertaining to this mahal is khewat No. 1 which has an area of 97 bighas and 10 biswas and is assessed to a revenue of Rs. 195. The defendants represent four families of butchers in the said village, who on 6th October 1922 purchased two specific plots No. 336 and 334 comprising an area of 5 bighas and 17 biswas. The sale in their favour was made by the then proprietor Benarsi Das for a sum of Rs. 2000. In the settlement of the village, which took place after the sale but before the suit, the plots purchased by the defendants were described as Nos. 803, 306 and 307 as khudkasht and No. 308 as parti jadid. In this settlement the total area of khewat No. 1 to which the plots mentioned above appertained was found to be 97 bighas and 10 biswas and its revenue was assessed at Rs. 195. The settlement officer in making the assessment had taken into consideration an area of 83. bighas only in the said khewat and had excluded from assessment an area of 14 bighas appertaining to this khewat, and the reason for this exclusion is thus stated by the settlement officer in the mahalwar assessment statement, dated 16th March 1932:
Assessment--Circle rates are suitable. A good mahal. Of the cultivated area of the year of record 14 bighas of Geohra II and Siwai I in excess of normal cultivation are excluded from assessment by deduction at valuation from assets of the khudkasht, statutory and enhanced occupancy areas.... Net assets are Rs. 495. This is a very moderate valuation based on the normal cultivated area. I consider that a round 40 per cent, of the assets is a fair demand and propose accordingly a jama of Rs. 195, an increase of less than three per cent.
2. It has been found by the Courts below that the land held by the defendants in the said khewat is a portion of the land which was thus excluded from the assessment by the settlement officer. The land held by the defendants, however, was not exempted from the payment of Government revenue at the settlement and the defendants are recorded in the khewat as cosharers in possession of a definite area just as other cosharers are recorded in possession of their areas, the tenure prevailing in the khewat being what is popularly called a 'bigha dham tenure.' On 30th April 1939, Murari Lal, the plaintiff, who is the lambardar of the mahal to which khewat No. 1 appertains, raised four actions in the Court of the Assistant Collector, First Class, Bijnor, under Section 221, Agra Tenancy Act (3 of 1926) for recovery of small sums of money as due from the defendants for arrears of revenue payable to the Government through the lambardar by the defendants as cosharers in the khewat. The main defence to these actions was that the property in possession of the defendants was part of the property which was excluded from assessment at the time of the settlement and con-sequently the demand could not be sustained against them. The trial Court overruled the defence and passed a decree for a small sum of money in each case for the revenue falling on the share of the defendants with reference to the property held by them. Against these decrees in four suits the defendants made four appeals and the Additional Civil Judge of Moradabad holding on appeal that the defendants were not liable to pay the revenue dismissed all the four claims. Against the dismissal of these claims the plaintiff has made these four appeals.
3. Under Section 221, Agra Tenancy Act (3 of 1926), a lambardar is entitled to sue a cosharer for arrears of revenue payable to the Government through the lambardar by such cosharer. under Section 142, U. P. Land Eevenue Act (3of 1901), all the proprietors of a mahal, are jointly and severally responsible to Government for the revenue for the time being assessed thereon, and under Section 144, U. P. Land Eevenue Act, the revenue shall be paid through the lambardar. It is, therefore, manifest that if the defendants can be regarded as cosharers they are liable to pay revenue and the actions of the plaintiff are justified.
4. The defendants' contention is that they are not liable to pay revenue because the land in their possession was excluded from assessment at the time of the settlement. We have already stated that the land in possession of the defendants was not exempted from any assessment though it is true that it was not taken into consideration in making the assessment of the mahal. The settlement officer also did not under Section 67 (a)., Land Revenue Act, distribute the revenue assessed on the mahal over the several properties recorded separately in the khewat or over the property in possession of the defendants, and the entire khewat was treated by the settlement officer as a joint khewat and a joint sum of Rs. 195 was assessed upon it. under Section 142, Land Revenue Act, the responsibility for the payment of the revenue is laid jointly and severally on all the proprietors of the mahal, and under the statute the liability for the payment of the revenue does not depend upon the question whether in making the assessment any particular property was excluded in the assessment or included in it. It is hardly necessary to observe that not taking any particular property into consideration for the purpose of assessment and exempting the property from payment of Government revenue are two entirely different kinds of proceedings with different legal results.
5. It was further contended that since their purchase in 1922 the defendants have been in possession of the property without payment of Government revenue, that they are not liable to pay Government revenue because they are only plot proprietors in the mahal and as such they are not cosharers in the khewat and further that they are not liable to pay Government revenue also on the ground because the land in their possession comprises a graveyard, a tank and abadi land and this kind of property is exempt from payment of Government revenue. These questions have not been discussed in judgments of the Courts below and as they involve consideration of controversial questions of fact they cannot be determined at this stage and we express no opinion about them. In the result we allow these appeals, set aside the decrees of the lower appellate Court and restore those of the Court of first instance with costs to the plaintiff in all the Courts.