1. This is a first appeal by the plaintiff Col. Chandra Jang Singh Thapa against a decree of the Civil Judge of Gorakhpur dismissing his suit. The plain, tiff is the owner of the share of 3 annas, 8 pies in mouza Jungal Ajudhya Prasad, Gorakhpur District, and he sues a number of other co-sharers in that village, one of whom defendant 1, Sitaram Lal, son of Raghunath Sahai, alone contests the suit. The plaint sets out that there has not been partition by metes and bounds although the thok of the parties and patties have been entered in the papers, that the plaintiff applied on 11th November 1932 in the Revenue Court for partition and that Sita Ram took objection that the mouza had already been partitioned and the Revenue Court directed the plaintiff under Section 111(2), Land Revenue Act; to get the point decided by the Civil Court. The plaintiff therefore asks for a declaration
to the effect that partition by metes and bounds has not been made of mouza Jangal Ajhudhya Prasad, Haveli, Pargana Haveli, District Gorakhpur and that the said mouza should be actually partitioned through the Bevenue Court.
2. The objection taken by Sita Ram was that the village in dispute had been completely partitioned long ago, that the patti and thok of the parties were quite separate and therefore that the suit should be dig-missed. The other cosharers pleaded partition. The Court below held that as the village in suit was already divided the plaintiff's suit must fall to the ground in its entirety, the Court alluded to evidence to the effect that there had been a partition of the village and that there were these three thoks or pattis and that the village was put down as 'pattidari mokammal'. The Court went on to say that because there was a division into different pattis and thoka therefore it was a perfect, partition out and out. The Court relied on an old kistwar map of mouza Jangal Ajudhya Prasad of 1853 (Ex. A) to show that the partition was of that date. This map is printed as an exhibit in the paper book but, on a reference to the original, we find, that the date which is relied on as 1853 shows signs of having been altered and whatever was previously written appears to some extent but it certainly is not a genuine map of the year 1853. There are references to various pleadings by different parties in which the year 1853 is mentioned, but none of these references state that there was any perfect partition or that the parties in the village are not responsible jointly for the land revenue of the village. The mere fact that there was 'pattidari mokammal' or perfect pattidari is not at all the same as saying that there was a perfect partition. No partition record is forthcoming but we have satisfied ourselves under the rules in Board's Circulars 18-9, Nos. 27 to 28 in the list that records for imperfect and perfect partitions are retained 'permanently or if a new Record of 'Eights has been prepared for 12 years after the completion of the record.'
3. A note states that no record of a partition actually effected should be destroyed without the special orders of the Collector who before ordering destruction should satisfy himself that the new Record of Eights embraces the whole of the partition area (e. g. the abadi). The same is contained in the Revenue Manual, Vol. 2, para. 1244, Nos. 27 and 28 at p. 65. There is no doubt from the references in the cases mentioned and from the khewat of the settlement of 1888 printed on pages 68 to 76 that the village was divided into these three thoks at a partition prior to 1888. Under the rules therefore, the partition record has long since been destroyed. But the proceeding in a partition case is that a new set of records are prepared for the patwari and those records go through the tahsil to the patwari and they replace the existing records of the patwari. The records therefore of the settlement of 1888 and the subsequent settlement show the division into three thoks as was made at the partition. Now an argument was made for Sitaram by Mr. Sanyal to the effect that prior to Act 19 of 1873 there was no such thing as imperfect partition, therefore any kind of partition must have been perfect. The provision of perfect and imperfect partition is contained in Section 107, Land Revenue Act, Act 19 of 1873, and again in the present Land Revenue Act, Act 3 of 1901, Section 106. Now Section 106 of the present Act states:
'Partition' means the division of a mahal or of a part of a mahal into two or more portions each consisting of one or more shares.
In 'imperfect partition' the several portions remain jointly responsible for the revenue assessed on the whole mahal.
In 'perfect partition' the whole mahal is divided and the several portions become separate mahals oach severally responsible for the revenue distributed thereon.
The procedure prescribed in the chapter shall be followed in all partitions whether imperfect or per-feet except where it is otherwise expressly declared.
4. This clearly indicates that where there is imperfect partition there remains the single mahal but in it the rights of the different parties are divided up. This is what appears in the khewat as it now stands and as it stood in the settlement of the year 1888. In Col. 14 of pp. 68 to 75 there are certain jamabandi numbers given for each holder of an anna pie share in each patti. Thus the plaintiff Gajraj Singh on p. 73 is shown to have assigned to him for his three anna eight pie share the jamabandi or khatauni numbers of holdings 275 to 323. He also has along with the other holders of shares in that patti certain shamlat numbers but there is no shamlat for the village and this is why this particular khewat is one which is headed 'of perfect pattidari'. In the case of perfect pattidari there would be certain 'shamlat deh' which would be jointly held by the owners of the different patties. Here there is no such 'shamlat deh' jointly held by the different patties. Now we are not satisfied that it has been shown that the partition was made prior to the Revenue Act of 1873. No documents prior to that date alluding to the partition have been shown to us. Mere expressions of opinion by persons drafting the pleadings at a much later date are of no value. We consider therefore that the partition was made under Act 19 of 1873 and was an ordinary case of imperfect partition as laid down in that Act. Now the application which was made by the plaintiff to the Revenue Court was for partition of the village and his counsel now explains that what was desired was an assignment to the plaintiff of a portion of sir and khudkasht land proportionate to his three anna eight pie share in the village. The plaintiff however is shown in the khewats as the possessor of certain numbers appertaining to his thok and he has no interest outside his thok. In the Land Revenue Act, Section 117 makes provision for the allotment to the applicant of such lands as are held by him as his sir or in severalty
and then so much of the lands held in common (if any) as shall give him, as far as may be, a portion of the mahal proportionate in value to his share therein.
5. It is this section of the Act on which the plaintiff relies for allotment to him of some portion from the thoks of the other cosharers. We are of opinion that the plaintiff is not the holder of land in common with the owners of other thoks and there, fore he cannot have any division of land between him and the owners of other thoks. That matter of the division of land held by the owners of different shares in the village has been settled in our opinion by the previous partition case and that result is embodied in the khewat of the settlement of 1888. The khewat is prima facie evidence under Section 44, Land Revenue Act, and the correctness of the khewat shall be presumed until the contrary is proved. There is no evidence before us to the effect that the khewat is wrong or that the applicant-plaintiff has any rights out-side his own thok. Therefore the contention of Sita Ram is correct to this extent that owing to the previous partition the plaintiff cannot get any share of any lands recorded in the other two thoks. But the object which the plaintiff set out of desiring to be separately responsible for his land revenue can be attained by the plaintiff and also the division of the lands which are held as shamlat or in common between himself and the other co-sharers in his own thok. As regards land revenue considerable argument WSB made that the plaintiff was not jointly responsible with other pattidars for land revenue but that each thok was separately responsible. The land revenue Act in Section 4(4) defines a mahal as 'any local area held under a separate engagement for the payment of the land revenue' that is, the area is held sunder one engagement for the payment of land revenue and not under several separate engagements. Here for example the settlement of 1888 shows on p. 75 that the total land revenue of the village is Rs. 747 and that was the amount of land revenue for which the co-sharers in the village and mahal undertook responsibility on ip. 76. One of those co-sharers was Raghunath Sahai by his special attorney Durga Narain and this Raghunath Sahai is the father of Sita Ram, defendant 1, who raised the objection. Under Section 142, Land Revenue Act,
all the proprietors of a mahal are jointly and severally responsible to Government for the revenue for the time being assessed thereon.
6. We are of opinion that this clause is one which is imperative and that under the present Act the definition of a mahal and Section 142 imply that there should be joint responsibility for the payment of the land revenue of the mahal. Learned Counsel for the respondent failed to show that there ever had been a system under the Revenue Act previous to 1873 by which there could be a perfect partition in which the parties would be retained within one revenue paying unit or mahal. Similarly Section 146(a) states that an arrear of revenue may be recovered by a writ of demand or citation to appear on any of the defaulters, etc. We consider therefore that there is no doubt that the plaintiff is entitled to bring his suit for partition in the Revenue Court within the limits which we have indicated. His own land revenue fulfils the condition of Rs. 100 or over required for a perfect partition. Accordingly we allow this appeal and grant the plaintiff a declaration that he is entitled to bring a suit for perfect partition of his share in the thok, Gajraj Singh in mouza Jangal Ajudhya Prasad Tappa Haveli pargana Haveli, Gorakhpur, and for its formation into a separate mahal of the plaintiff alone but that in that suit he has no right to any share in the numbers assigned in the khewat to the other two thoks. The parties shall bear their own costs throughout. Let a copy of this finding be returned to the Revenue Court.