C.J. Shillingford vs Gena Tatma

James, J.—This appeal arises out of a suit which was instituted for the ejectment of a dismissed gorait from land which according to the plaintiff formed the goraiti jagir. The land in question is situated partly in mauza Bhamaraili and partly in village Hamsaili. The lower Appellate Court has found that each of these parcels of land was granted as service tenure to an ancestor of the defendant, and that the land in Hamsaili was definitely granted as remuneration for the office of gorait; that is to say, with regard to the land in Hamsaili, there was the grant of the office of gorait, the services of which were remunerated by this land, so that the grant of the office entitled the gorait to enter on the land.

As regards the land held by the gorait in Bhamaraili, the lower Appellate Court has been unable to find that it is land of this nature, considering that the tenure may represent a grant of land burdened with services or it may have been a grant in consideration of past services. The learned Subordinate Judge has found that the services in remuneration for which the land in Hamsaili was held are not of a public nature but are private and personal to the plaintiff. He has further found that the grant when made was of a permanent nature; that is to say, a hereditary right was created in the defendant''s family to occupy this land rendering in return for it the services of gorait to the zamindar.

Mr. Upadhya on behalf of the plaintiff appellant argues that the lower Appellate Court was not justified in finding that there was any hereditary right in the defendant''s family to succeed to the office of gorait, such as would give him a permanent right in the jagir except on proof of the actual misconduct or refusal to perform the duties of gorait. The plaintiff had issued a notice bringing to an end the gorait''s term of office which the lower Appellate Court found was properly served; but the learned Subordinate Judge considered that before the gorait could be dismissed and his jagir resumed, it was necessary definitely to prove that he had not been willing properly to perform the duties of his office.

These chakrana jagirs when they are granted in lieu of remuneration for zamindari service differ essentially from those jagirs which may be granted as rewards for past services or grants of land burdened with some formal service; and there does not appear to be any particular reason; why an office of which the remuneration is given in this way by the grant of chakrana lands should be distinguished from; an office of which remuneration is given in any other way, in cash or in kind.

Mr. Upadhya cites the decision in Radha Pershad Singh v. Budhu Dashad 22 Cal. 938 wherein the Maharaja of Dumraon sought to eject a gorait who had failed to perform his service. The Subordinate Judge in that case inferred that the office was permanent and hereditary, because the jagir had been allowed to devolve from father to son, and the tenure had been granted very many years before and in recent years the zamindar had not availed himself of the services of the gorait, but had allowed him to hold on in possession of the jagir. The Calcutta High Court pointed out that neither of these facts, nor all of them taken together, could legitimately lead to the inference that the grant, which was in lieu of personal services to be rendered to the zamindar, was of a permanent character, so that the zamindar should not be entitled to resume, though the grantee may refuse to perform the services, or the services may no longer be required.

In the case with which we are concerned, the Subordinate Judge bases his finding that the office of gorait is hereditary and permanent on facts similar to those which were formed the basis of the decision of the Subordinate Judge in Radha Pershad Singh''s case 22 Cal. 938; and none of these facts appear to warrant the assumption that the zamindar when he appointed the first gorait and assigned for his remuneration the goraiti jagir in Hamsaili village deprived himself thereby of the right to dismiss this servant and appoint another in his place if he should please, or of the right to take the jagir away and substitute for it remuneration in cash or kind. There appears to be no warrant for the assumption that the zamindar is not entitled to dismiss at his pleasure a servant of this kind, whose services are private and personal to the zamindar, merely because the remuneration of his office consists of the enjoyment of certain land.

In Radha Pershad Singh''s case 22 Cal. 938, the Calcutta High Court pointed out that it was necessary that notice should issue to the gorait; but in the present case it has been found that there was proper service of notice, so that it should have been found that the services of the gorait had terminated and that the goraiti jagir was liable to resumption to be enjoyed by the person who succeeded the defendant in the office of gorait. The defendant was on the findings liable to ejectment from the land in Hamsaili.

As regards the land in Bhamaraili the learned Subordinate Judge has found that the plaintiff failed to prove that the land held in Bhamaraili is of this class, granted as remuneration for an office, or to prove that it was not granted as reward for past services, or that it would be liable to resumption on the termination of the office of gorait.

In a suit for ejectment, the plaintiff must prove his title. Mr. Upadhya points out that the grant would be presumed to be a grant for life; this is true; but the successor of the first holder would in that view of the matter begin to prescribe against the grantor on entry. On this finding of fact the plaintiff cannot obtain a decree for ejectment of the defendant from that land; but for the service tenure in Hamsaili, he must be held entitled to a decree.

To this extent the appeal is allowed, the decree of the lower Courts will be set aside and the plaintiff''s suit will be decreed with proportionate costs throughout.