1. The plaintiffs, one of whom is a lambardar, Habibur-Rahman Khan, sued the defendants under Section 160 of the Tenancy Act of 1901, for recovery of arrears of revenue paid by them on account of the defendants. The defence was that the defendants were no co sharers to whom the provisions of Section 160 would apply, and that they were not liable to pay any revenue whatsoever, because at the time of the last settlement the liability was fixed on the holders of the khalsa land. The defendants are plot proprietors, that is, they hold specific plots which are assessed to revenue. It appears to have been the opinion of the Board of Revenue previously that such proprietors were not included in the term 'co-sharer' as used in Section 159 and the following sections of the Tenancy Act of 1901 This view, however, has been corrected subsequently after the decision by this Court in Murli Dhar v. Babu Ram 55 Ind. Cas. 74 : 18 A.L.J. 121 : 2 U.P.L.R (A.) 41 : 42 A. 311; see Umri Kuar v. Bijay Bahadur Unpub Dec. of the Board of Revenue Vol, 4 p. 358,.] The Revenue Court, therefore, had jurisdiction to try the suit.
2. The term of the wajib-ul-arz whose protection the defendants seek may be translated as below:
3. 'Whatever revenue has been fixed on the part of the Government on haqiyat mutafarriqa' (that is, separate plots of land), 'the liability for its payment shall lie on the proprietors of the khalsa land.'
4. This clause does not give an indication that the plot-proprietors were to hold land free of revenue. It is obvious that the Government did not desire to undertake the trouble and responsibility of collecting small amounts from plot-proprietors and made the proprietors of the khalsa land responsible for the payment of the amount. That, however, did not absolve the plot-proprietors from the liability of paying revenue and of refunding to the owners of khalsa land the amount of revenue paid by them on behalf of the plot-proprietors. If an argument like this based on conditions of a wajib-ul-arz framed for the convenience of Government were entertained, it may with equal propriety be argued that a lambardar, who is compelled to pay revenue to Government on behalf of all the co-sharers, cannot recover the amount paid by him on behalf of the other co sharers. The position was considered by the Board of Revenue in the case of Gulzari Lal v. Munta Kunwar Unpub. Dec. of the Board of Revenue, Vol. 1 p. 115 a case which came from the District of Etah like the one before me in second appeal. The members of the Board pointed out that, although the Wajib-ul-arz makes the recorded co-sharers of a mahal primarily liable for the payment of the revenue assessed at the last Settlement by the Settlement Officer on the arazi muta-farriqa, it nowhere does away with the right of the lambardar to recover it from the persons on whose land it is assessed. 1 am satisfied that the arrangement was made for the convenience of Government, so that the Government may recover these small amounts quickly from the big proprietors of the khalsa land leaving it to those proprietors to collect the small amounts from the plot-proprietors. It is clear that the lambardar or co-sharer of the khalsa land would be entitled to a refund of the amount of the revenue paid by him on behalf of the plot-proprietor. In my opinion it is incorrect to say, as is alleged in the first ground of appeal, that the condition laid down in the wajib-ul-arz is 'as to nonliability of revenue,' Nothing is said in the wajib ul-arz to absolve the plot-proprietors from the payment of revenue. On the other hand, it is definitely stated that the Government has fixed revenue on the plot-proprietors.
5. It was suggested that the lady-plaintiff had not paid any revenue and was not entitled to sue. That, however, need make no difference, because the other plaintiff is lambardar, and there can be no doubt of his having paid money payable by the defendants.
6. The appeal fails and is dismissed with costs.