Amarindra Krishna Gosh vs Lahabat Mahton and others

Fazl Ali, J.—The arguments in this appeal were confined to some 56 bighas of land known as nakhu-rekh which are set out in Sch. I of the plaint and which are situated in certain mauzas which are admittedly within the patni estate of the plaintiff. The plaintiff brought the suit out of which this appeal has arisen, for khas possession of these lands on the allegation that they were held in service tenure by the ancestors of the defendants and that as, the service which the defendants and their ancestors were liable to render was no longer rendered, the defendants were not entitled to continue in possession of those lands. It may be stated here that the plaintiff''s case was that the defendants held the lands on the condition that they would continue to repair a bundh in the village known as Dewan Bundh and that they had ceased to repair this bundh many years ago. The main plea of the defendants in the suit was that the lands were their ancestral rent-free jalsasan, lands; and in support of this plea they relied mainly upon the Record of Rights which was prepared sometime in the year 1922. The trial Court did not give the plaintiff a decree for khas possession but held that the lands in question were liable to be assessed with rent. The learned Additional District Judge on appeal dismissed the suit in its entirety. He held that the plaintiff was not entitled to get khas possession of the disputed land because in the first place the entry in the Record of Rights had not been shown to be wrong, and secondly, even assuming that the lands in dispute were held on the terms stated by the plaintiff, the suit had been brought more than 12 years after the plaintiff''s right to sue for khas possession had accrued. As to the claim that the lands were liable to be assessed with rent the learned Judge observed as follows:

The suit has not been brought with such a prayer and the defendants have not contested it. With respect to that I do not know what defence the defendants may put forward if such a prayer be made. I, therefore, think that I cannot allow such a declaration in this suit.

It may be stated here that one of the questions of fact on which the parties were not agreed was whether the Dewan Bundh belonged to the defendants or to the plaintiff and his tenants. The learned District Judge has come to the conclusion that it belonged to the defendants'' ancestors. It has also been found by both the Courts below that the bed of the tank silted up many years ago and was settled by the plaintiff with certain tenants. Upon this finding it has been urged on behalf of the defendants that even if the defendants held the disputed land on condition of repairing the Dewan Bundh, the performance of that condition has been, made impossible by the act of the plaintiff in converting the bed of the tank into agricultural lands and settling them with the tenants. It was argued on behalf of the plaintiff-appellant in this Court that the learned Additional District Judge has not been quite consistent in his findings, and it was pointed out that while on the one hand, he has found that the entry in the Record of Eights has not been rebutted, he has, on the other hand, held that the disputed lands were held "with a condition or an obligation to keep the Dewan Bundh in repair." It appears to me, however, that what the learned Judge meant was to draw a distinction between the grant of a service tenure which was liable to be determined by the grantor or his successor-in-interest at his will and a grant of land in perpetuity with a special kind of service annexed to the grant. The learned Advocate for the appellant has in arguing this case referred to the illuminating judgment of the Calcutta High Court in the case of Radho Pershad Singh v. Budhu Dushad, (1895) 22 Cal 988, in which reference has been made to various kinds of service tenures. It is stated that a grant may be made either for the purpose of some service of a public nature or for service private or personal to the grantor, and a distinction is also drawn between the grant of an estate burdened with certain services and that of an office, the performance of whose duties is remunerated by the use of certain lands. The question to be determined in this case is as to the nature of the defendant''s tenure. As I construe the judgment of the learned District Judge it appears to me that in his opinion the disputed lands had been granted in perpetuity, but the grant was subject to the burden of a service, namely the repairing of the Dewan Bundh. Such a conclusion being possible from the documents which the learned Additional District Judge had before him, I see no reason to disturb his decision in second appeal. The next question which arises is whether the defendants are liable to be ejected merely because the alleged service is no longer being rendered. In my judgment the answer to this question may be furnished in the language of Sir Barnes Peacock who while dealing with the identical point in Baboo Kooldeep Narain Singh v. Mihadeo Singh, (1866) 6 W R 199 = Beng L R Sup Vol 559 (F B)�see also Keval Kuber v. The Talukdar Settlement Officer, (1875-77) 1 Bom 586, observed:

I must say that this is the first time I have ever heard such a contention as that a landlord can dispense with the Services upon which lands are held whenever he pleases and take back the estate. It is not because the services are released or dispensed with, or become unnecessary that the estate can be resumed. If a grantor releases the services, or a portion of the services, upon which lands are holden, the tenants may hold the land free of services; but the landlord cannot put an end to the tenure and resume the land.

Besides, the learned Advocate for the appellant concedes that an occupancy right may be acquired even in service lands and the learned Additional District Judge has clearly found that the Record of Rights which describes these lands as jalsasan lands of the defendants and non-resumable has not been rebutted. The next question which has to be considered is whether the lands in dispute are liable to be assessed with rent. A similar question arose in Mahadeo Lal v. Kalanand Singh, (1914) Cal 168 = 20 I C 69 = 19 C L J 241 and Sir Ashutosh Mookerjee answered it in these words:

In the case before us, the grant is clearly one subject to a burden of service. The representative of the grantor has of his own accord dispensed with the performance of service. He cannot now turn round and claim that the land be assessed with rent.

The only difference between the present case and the case which was before the Calcutta High is that while in the latter case the landlord had of his own accord dispensed with the performance of the service, in the present case he had made the performance of the service impossible by converting the tank into agricultural lands. In my opinion however this distinction is not material and the two cases are governed by the same principle. However that may be, as the learned District Judge has pointed out, the lands cannot be declared to be liable to be assessed with rent as no such prayer was made in the plaint. In fact it appears from several documents which were produced in this case that the defendants have all along contended that the lands in dispute cannot be assessed with rent. Mr. A.B. Muherjee who appeared on behalf of the appellant asked us to allow him to amend the plaint by including a prayer as to assessment of rent, but we think that the prayer should not be granted at this stage. In my opinion therefore the appeal fails and must be dismissed with costs.

Luby, J.

I agree.