1. These are five connected appeals brought by a plaintiff against the judgment of a learned single Judge of this Court dismissing the suit of the plaintiff which was for assessment of rant and in the alternative for assessment of the share of Government revenue on the plots held by the defendants who were entered as muafidars. The lower Courts have also dismissed the suit of the plaintiff. It was claimed by the learned counsel on behalf of the appellant-plaintiff, that his case came under Section 156, Act 2 of 1901. Section 150 lays down that the proprietor of a mahal or part of a mahal may sue to resume possession of on have rent assessed on any lands situated in such mahal or part of a mahal purporting to be held rent free or to have the holder thereof declared to be liable to pay revenue on it. Section 154 lays down the cases in which land held rent free is 1930 A' 45 & 46 liable to resumption. Section 158 lays down the case of land which is not liable to resumption under Section 151 and which has been held rent free for fifty years and by two successors to the original grantee... Section 156 lays down that land not liable to resumption under Section 154 and to which the provisions of Section 158 do not apply, shall be liable to assessment of rent.
2. It is claimed by the learned counsel that Sections 154 and 158 do not apply and therefore that rent should be assessed; under Section 156. The finding of the lower appellate Court is that Section 158 does apply because the land has been held rent free for more than fifty years and by two successors to the original grantee Accordingly, under that section the land shall be deemed to be held in proprietary right. That section continues:
and the Court shall declare the holder o such land to be the proprietor thereof, and to be liable to pay the revenue thereon, and shall determine the revenue payable by him.
3. This section enables a Court to assess revenue if there is revenue payable on the land in question. The learned counsel for the appellant referred to the provisions of Section 58, Land Revenue Act, to the effect that revenue might be assessed on this land, but the question before us is not whether revenue might be assessed at some future date on this land but whether there is in fact revenue assessed on the land at present The finding of the lower appellate. Court is that there is no revenue at present assessed on this land.
4. A reference to the khewats of 1289 F shows that this fact is undoubtedly correct. There are two khewats, one for mouza Chaksari Kalan and the other for mouza Chaksari Khuld. But the khewats are similar and are briefly as follows: In each mahal the khewat has a number of khatas, 6 in one case and 7 in the other Khewat 1 is entered for the plaintiff appellant as the sole owner and is stated to be 16 annas of khalsa land Below this khewat 1 (and in the case of one mahal below) an entry of a small area as public roads come the remaining khatas under the heading 'muafi lekhiraj' i.e. free from payment of revenue. These following khatas contain the names of the defendants' predecessors with their small areas o muafi land. Now, the first point that is apparent from this khata is that the revenue of the village is assessed solely on khata 1. No revenue is assessed on any of the khatas in suit and accordingly as there is no revenue payable on these plots so no revenue can be assessed on the plots under Section 158.
5. The next point which is apparent is that the land of the defendants does not lie within the land owned by the plaintiff. The 16 annas of the mahal owned by the plaintiff is entirely separate from the areas of muafi land owned by the defendants. Accordingly therefore the plaintiff cannot come under Chap. 10, because Section 150 only refers to suits by the proprietor of a mahal or part of a mahal for assessment of rent on any land situated in such mahal or part of a mahal.' The land of the defendants not being situated in the mahal or part of the mahal owned by the plaintiff, the plaintiff cannot get relief under the chapter.
6. In fact, the suit of the plaintiff has been entirely misconceived. Such a suit as the present will only lie by a proprietor of a khewat for land which is entered in the khatauni as appertaining to the khewat khatas of the plaintiff. The mere fact that the defendants are entered themselves in the khewat shows that no suit under Chap. 10 could lie against them. It is only in the case of persons who are not entered in the khewat that suits will lie under this chapter. Accordingly we dismiss these five appeals brought by the plaintiff, with costs