Harish Chandra, J.
1. This is a defendants' appeal from the judgment and decree of the learned civil Judge of Banaras decreeing the plaintiff-respondent's suit for a one-fourth share of the sale price of a house situated in the city of Banaras in Ahaia Bohila in Mahal Sheo Narain Puri of village Bhadaini on the basis of custom. The trial Court had dismissed the suit. But the lower appellate Court allowed the appeal and setting aside the judgment and decree of the trial Court decreed the plaintiff's suit.
2. The existence of a custom by which zar-e-chaharum is paid to the zamindar whenever any house property is sold in this mahal by a parjawatdar was admitted on behalf of the appellants. The only question that arose was whether the respondent was or was not a zamindar. The respondent is recorded in the khewat as the proprietor of haqiyat-i-mutafarriqa. It is said that he is, therefore, merely a plot-proprietor and is not entitled to the benefit of this custom. But the proprietor of a specific area is also a proprietor or a zamindar and Section 32, U.P. Land Revenue Act, 1901 (U. P. Act No. III of 1901) provides for the preparation of a
register of all the proprietors in the mahal, including the proprietors of specific areas, specifying the nature and extent of the interest of each.
A certified copy of the entire khewat is not on the record. But the original khewat was sent for by the lower appellate Court at the instance of the appellants for perusal and a certified copy of it has been shown to us by learned Counsel for the appellants. According to the khewat Sheo Narain Puri is recorded as the lambardar of the mahal owning a sixteen anna share in the mahal. The area owned by him as well as the land revenue payable by him is also entered in the khewat. Thereafter, a number of other persons are recorded as pattidars or cosharers. The actual areas owned by them are noted against their names and in the column provided for the entries of the amounts of land revenue paid by the various cosharers the words 'shamil malguzari' are entered. The intention clearly is that these proprietors are not assessed separately to land revenue and that the land revenue payable by them is included in the amount of land revenue shown against the name of Sheo Narain Puri lambardar. There is thus no reason to suppose that the respondent is not a proprietor or cosharer in the mahal although he is the owner of a specified area in that mahal. Learned Counsel for the appellants is unable to give us any other reasonable explanation of the words 'shamil malguzari' as noted against the names of the owners of haqiyat-i-matafarriqa as given in this khewat. At one stage it was actually suggested that these words had been interpolated and did not exist in the original khewat and that led to the lower appellate Court to send for the original khewat. The lower appellate Court was, on a perusal of the original khewat satisfied that the words 'shamil malguzari' were in fact recorded against the names of these owners of haqiyat-i-mutafarriqa. There is therefore no reason why the respondent should not be regarded as a zamindar and entitled to the benefit of the custom which admittedly exists in the mahal in which the house in dispute is [situated. Admittedly the land over which the house is situated belongs to the respondent and it is also admitted that it is parjawat land, the rent of which is paid to the respondent. It would therefore be very unreasonable to hold that some other cosharer would be entitled to the benefit of the custom by which haq-e-chaharum is paid to the zamindar. The actual words used in the wajib-ul-arz are: 'Parjawatdar amla apne makan ka farokht kare ya-lejawe to uski qimat ke haqdar chaharum ke ham zamindar hain.' Our attention has been drawn to the fact that the wajib-ul-arz is signed by Sheo, Narain Puri alone. But that does not mean that the other cosharers in the mahal are not bound by what is said in the wajib-ul-arz. According to Section 65, Land Revenue Act when there are two or more proprietors the settlement is to be made with the lambardar 'unless for special reasons the Settlement officer decides to make the settlement with all the proprietors.' It was apparently in accordance with this provision or a similar provision existing in the Land Revenue Act in force at the time that the settlement was made with Sheo Narain Puri alone. Sheo Narain Puri as lambardar was apparently acting on behalf of all the zamindars and all the cosharers in the mahal are obviously entitled to the benefit of the said custom.
3. Our attention has been drawn to the Letters Patent Appeal of Gajadhar Shukul v. Bhikhu Nonia and Ors. l.P.A. No. 13 of 1932, 1 D/- 4th August 1933 in which the plaintiff was not held to be a zamindar of the mahal on the ground that he was a plot-proprietor. The judgment is a very short one. But it appears to us that the facts of that case were entirely different. It appeared that the plaintiff in that case was recorded as the full proprietor of a specific plot of land by the settlement officer; but it was found that it was not a separate mahal inasmuch as no separate record-of-rights had been prepared with respect to it. It would appear that according to Sub-section (3) of Section 4 of the said Revenue Act, 1901, it is necessary for a mahal to have a separate record-of-rights framed with respect to it. If there is no such separate record-of-rights, a local area cannot be described as a mahal. There was also no separate assessment of land revenue. These were apparently the reasons why it was held that the plaintiff in that case was not a zamindar of the mahal at all. Moreover, it appeared that no custom of haq-e-chaharum had been established with respect to the so-called mahal in which the plaintiff's name was recorded. There is nothing ' therefore in that case to show that a plot proprietor can, in no circumstances, be treated as a zamindar entitled to the benefit of the customs recorded in the record-of-rights of the mahal in which he may be a proprietor. We accordingly dismiss the appeal with costs.