Authored By : Henry Thoby Princep, S.C. Ghose

Henry Thoby Princep and S.C. Ghose, JJ.

1. This was a suit by the Maharajah of Doomraon for recoveryof possession of corbain lands. The lands form part of his zamindari, and theaction was based upon the allegation that the lands had been granted to oneKangali Dashad, father and ancestor of the defendants, as a jagir in lieu ofservices as a gorait; that he died in the year 1294 (F.S.), and the defendantshaving failed to perform the service, their services were dispensed with in1296; that the lands were then settled with one Raja Koeri, the plaintiff No.2; that he raised crops thereupon, but was dispossessed by the defendants inJuly 1890 (1297). The suit was defended by the defendant No. 1, Budhu Dashad,upon the ground that the land had not been granted in lieu of service toKangali, the father of defendant No. 2, but that since before the accession ofthe British Government, his ancestors and he had been holding the same asgoraits jagir under a sanad (not produced) granted by a Mahomedan Emperor;that no service had ever been rendered to the plaintiff, the Maharajah ofDoomraon, or to his ancestor, in lieu of holding possession of the lands inquestion, though he had been performing certain quasi-public service; and thatin fact, the land did not belong to the Maharajahs zamindari. He also pleadedthat the claim was barred by limitation.

2. As regards these two last pleas, it is sufficient to saythat they were negatived by the Courts below; and no question has been raisedbefore us with reference thereto.

3. Both the Courts below have dismissed the suit. The LowerAppellate Court, with reference to the question of the incidents of the defendantstenure, has found that it was not a "public grant," but a servicetenure created in favour of the contending defendants ancestor "longupwards of twelve years ago" for the performance of private work of thezemindar, but that he (the zemindar) did not avail of the contendingdefendants services "of late," and yet the latter continued to be inpossession; and that the tenure descended from father to son. Upon these factsthe Subordinate Judge holds, and as he says "in the absence of satisfactoryevidence as to the terms of the grant or contrary," that it was of apermanent and hereditary character and cannot be resumed by the zemindar at hiswill, more particularly when the tenure-holder is "capable andwilling" to render services.

4. The distinction between a grant for services of a publicnature, and one for services, private or personal, to the grantor, is wellunderstood. In the former case the zemindar is not entitled to resume, while inthe latter case he may do so, when the services are not required or when thegrantee refuses to perform the services. [See Sanniyasi v. Salur ZemindarI.L.R. Mad. 268; Harrogobind Raha v. Ramrutno Bey I.L.R. Cal. 67; SreeshChunder Rae v. Madhub Mochee S.D.A. 1857, p. 1772; Nilmoney Singh Deo v.Government 18 W.R. 321; Unide Rajaha Raje Bammarauze Bahadur v. PemmasamyVenkatadry Naidoo 7 Moo. I.A. 128.] A distinction also exists between the grantof an estate burdened with a certain service, and that of an office, theperformance of whose duties is remunerated by the use of certain lands. In theformer case it would seem that the zemindar is not ordinarily entitled toresume, even if the service is not required, if the grantee is willing and ableto perform the services, while in the other case he may do so when the officeis terminated. [See Forbes v. Meer Mahomed Tukee 13 Moo. I.A. 438 : see alsoLilanand Singh v. Munorunjun Singh 13 B.L.R. 124 [LQ/PC/1873/3] : IL.R. All 181.

5. The Subordinate Judge has found that the service tenureheld by the defendant was created for the purpose of doing the private work ofthe zemindar, and that the grant was not for performance of any public service.And there is nothing to shew that the grant was a grant of an estate burdenedwith the performance of certain services.

6. The question then arises whether the circumstances reliedupon by the Subordinate Judge justify the inference (for it is only aninference as we understand his judgment) that the grant was of a permanentcharacter. It seems to us that neither the fact that the land has been allowedto devolve from father to son, nor the fact that the tenure was created verymany years ago, nor the circumstance that of late the zemindar did not availhimself of the services but still allowed the defendant to hold on, or allthese facts taken together, could legitimately lead to the inference that thegrant, which was purely in lieu of personal services to be rendered to thezemindar, was of a permanent character, such that the zemindar is not entitledto resume, though the grantee may refuse to perform the services, or theservices may be no longer required.

7. The service grant having been created by the zemindar forpersonal services to be rendered, he has, we think, a prima facie right toresume the grant when such services are dispensed with [see Sanniyasi v. SalurZemindar I.L.R. Mad. 268; Mahadevi v. Vikrama I.L.R. Mad. 365]. The defendanthas not produced his sanad, nor has he proved that the grant was a grant of anestate burdened with certain services, but he is content with relying upon thecircumstances referred to in the judgment of the Subordinate Judge, which inour opinion do not justify the inference that the grant was of a permanent andheritable character.

8. But then it seems to us that the plaintiff is notentitled to resume the grant before he gives to the grantee notice dispensingwith his services. The allegation in the plaint is that the defendants weredischarged from the office of gorait; but it would appear upon the evidenceadduced by the plaintiff that the services of defendant No. 2 were dispensedwith because he expressed his inability to perform the services as gorait, andthat the defendant No. 1, the real holder of the service tenure, had no noticeof the determination of the service, or of the action on the part of thezemindar in settling the lands with plaintiff No. 2.

9. It seems to us, therefore, that the plaintiff cannotrecover possession in this action, for he can only do so by determining theservice tenure held by the defendant No. 1. Upon the judgments of the Courtsbelow, and upon the case of the plaintiff himself, that tenure has not yet beendetermined; the plaintiff has not given to the contending defendant any noticeto quit, nor is there any allegation, much less evidence on his part, that thedefendant has declined to perform the services for which the tenure wascreated; though no doubt the defendant by his written statement has clearlyindicated that he is not willing to render any services to the plaintiff. Inthis view of the matter, we are of opinion that the claim for ejectment fails.We, however, think that, as the question of the character of the tenure held bythe defendant No. 1 was raised in issue between the parties and dealt with bythe Courts below, it may be declared, as has already been expressed, that thetenure in question is a service tenure created in lieu of private services tobe rendered to the zemindar, and that the tenure is not of a permanentcharacter.

10. Each party will bear his own costs throughout thislitigation.

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Radha Pershad Singh vs. Budhu Dashad and Ors. (19.06.1895 -CALHC)