JUDGMENT

J.K. Tandon, J. - The Petitioner has been assessed by an order dated the 17th February, 1958, to agricultural income tax amounting to Rs. 3,346-12-0 under the UP Agricultural Income Tax Act, 1949, on an assessed income of Rs. 22,512-5-0. He is asking the said order to be quashed. Before commencing this petition he appealed against the order to the Commissioner Agricultural Income Tax and also went up in revision to the Board but was not successful.

2. The Petitioner owns agricultural lands in three different villages, viz. Khuchma, Parera and Akbarpore, all the three situate in the district of Rae Bareli. Prior to the order sought to be impugned he had been assessed ex-parte to a tax amounting to Rs. 1,278-1. On appeal by him against the said order the Commissioner remanded the case to the Assessing Authority for assessment afresh. On this occasion the Assessing Authority after serving the necessary notice on the Petitioner made the impugned assessment u/s ub S. (3) of Section 16 of the Act.

3. The Petitioner is challenging this assessment mainly on the grounds. The area situate in village Khuchma is partly directly under his own cultivation and partly measuring 42 bighas 11 biswas is in his cultivation through Sajhidars. So far as the other two villages are concerned his case has been that the entire area situate in those villages was in the occupation of third persons who derived benefit out of them; he neither cultivated them nor received any income from them. Thus his claim is that he should have been assessed on the income which he derived from village Khuchma only while only half of the produce received from the lands cultivated through Sajhidars should be taken account of in assessing his income. The Assessing Authority has not accepted the above contentions though it accepted that the area of 42 bighas and odd was in the cultivation of Sajhidars and the area in the other two villages was held by others, i.e. those who had been entered as Qabiz. The reasoning adopted by him is that a Sajhidar is not different from a servant and it had not been established in the case of the other two villages that no income was received from the plots held by the persons mentioned as Qabiz.

4. On an earlier date when this case happened to be heard the necessity to peruse the agreements under which the Sajhidars had been allowed to cultivate the land in village Khuchma was felt. Accordingly the learned Standing Counsel has produced the record today. On a perusal of the Sajhinamas executed by the several Sajhidars they are identical in form and language-two facts were at once clear, viz. (1) that the Sajhidars had been appointed to cultivate and raise crops on the plots by contributing in equal proportion seed and other material necessary in the operations and (2) that the Sajhidars, on the one hand, and the Petitioner, on the other, were equally entitled to share the produce or the yield. There is nothing in these documents to show that the Sajhidars had been employed to do the cultivation on wages or as employees of the Petitioner. On the contrary, the terms contained, in them are open to no other conclusion than this, viz. that the cultivation of the plots was agreed to be a joint enterprise of the Petitioner and the Sajhidars. They had to contribute also equally towards the expenses and likewise to share the yield between them. The Assessing Authority has in spite of these documents and without troubling itself to examine, them disposed of the question by holding that a Sajhidar is by its nature an employee. A Sajhidar is a partner in cultivation. He is neither a servant nor an employee on wages of the person whose Sajhidar he is. The yield which results from his cultivation is the earning jointly of the two persons. The share that the Sajhidar gets is thus his share of the produce and not a substitute for any wage payable to him. The Assessing Authority was guilty of an apparent error in holding that a Sajhidar is a servant and