Padamlochan Mahapatra vs Budhram Christian and Others

Mahabir Prasad, J.—These nine appeals by the plaintiff raise the vexed question as to whether the lands in dispute held by the defendant respondents, entered in the record-of-rights as "Naukrana waste uthane bhar malikke mila hai" (service-tenure granted for carrying malik''s burden) could be resumed by the landlord, appellant when he no longer required the services for which the grants were made.

Ten title suits were brought by the same landlord against different raiyats in the village holding pieces of "Naukrana" lands, described fully in the schedule to the plaints. The defendant Mahu Uraon has not come up in second appeal. The plaintiff is the present mortgagee with possession from the khorposhdar under the Maharaja of Chota Nagpur. The plaintiff''s allegation was that the defendant-respondents had refused to render the services for which the grants had been made. He, therefore, sought to resume the lands. The suits were resisted by the raiyat defendanta on various grounds. The main defence taken on their behalf, with which we are now concerned, was that they were all the time willing to work and render the services'' for which the grants had been made but that it was the plaintiff himself who refuged to accept the services and treated them as having been dismissed. Their plea was that the grants were absolute and were not resumable except when services were refused on demand. On behalf of the plaintiff, the contention was that it was open to him to resume the tenures as they were created in lieu of wages for the performance of services, which were no longer required by him, and even if the defendants were willing to perform the services he was entitled to resume, and the question as to whether the grantee of the tenures refused to perform the services on demand did not arise.

It appears that the grants in question were made about half a century ago and were in existence at the time of the preparation of the Cadastral Survey record-of-rights. No documents about these settlements have been produced and all that we know about them is the description given of them as "Naukrana" in the record-of-rights. The question, therefore, to be decided is whether the description "Naukrana" makes it a grant of an estate burdened with a certain service, or, merely a tenure for the purpose of remunerating personal services to be rendered to the zamindar.

The learned Munsif came to the conclusion that the lands were granted in lieu of wages for services to be rendered and were resumable when the landlord decided not to avail himself of the services of the grantees. He, therefore, decreed the suits. On appeal, the learned Judicial Commissioner of Chota Nagpur held that according to the entry in the Survey Papers and the Report of the Settlement operations, the plaintiff could resume the lands only when the defendants were called upon to do the specific services but refused and not on the ground that he did not want to take the services. He further held that it was not proved that the defendants had refused to perform the services. He, therefore, set aside the Munsifs judgment and decree for eviction and dismissed the suits.

On appeal to this Court, Beevor J., before whom the appeals came up for hearing, was of the opinion that there was no clear finding by the lower appellate Court as to whether the title by which the defendant held the lands in suit was the title of a grant burdened with service or merely a grant in lieu of wages, and he, therefore, ordered the record to be sent down for a clear finding from the lower appellate Court on the question:

Do the defendants in these suits hold their land by virtue of a grant burdened with service, or do they hold the land merely in lieu of wages for services performed?

The learned Judicial Commissioner, Mr. Mukherji, who heard the matter on remand, has given his finding in these terms:

I am inclined to think that the grant in the present oase is a grant of land burdened with service of a personal nature.

On behalf of the plaintiff-appellant, it is contended that the grant of land burdened with service of a personal nature, as the finding is, is resumable either when the service is refused or when it is not required. On behalf of the appellant, we have been referred to the following observations of their Lordships of the Calcutta High Court in the case of Radha Pershad Singh v. Budhu Dusadh 22 Cal. 938:

The distinction between a grant for services of a public nature, and one for services, private or personal, to the grantor, is well understood. In the former case the zamindar is not entitled to resume, while in the latter case he may do so, when the services are not required or when the grantee refuses to perform the services.

It is argued that in the present case the service required was of a private and personal nature to the zamindar and he was, therefore, entitled to resume the grant at his will by merely asking the defendants not to perform the services, and that it was not a grant burdened with a certain service of a public nature but merely a grant where the grantee was to be remunerated by the use of the land if and when he was called upon to perform those services. In this connection, reference has also been made to the decisions in Hari Shankar Lal v. Mt. Chandu Urain AIR 1939 Pat. 862 and Chakrapani Rao v. Sri Bajah Venkatadri Appa Rao AIR 1937 Mad. 303.

For the meaning of the term "Naukrana" entered in the record-of-rights our attention has been drawn to paragraph 93, chapter VI of the Report on the Revisional Survey and Settlement Operations in the district of Ranchi (1927-35) which states that:

The incidence of such holdings, unless otherwise specified, is ordinarily that they shall continue as long as the specific service for which they are granted is performed, being resumable when it ceases to be performed.

The words "being resumable when it ceases to be performed" do not indicate whether it is, terminable at the will of the grantor, ceasing to demand the services, or oh the refusal or failure of the grantee to perform the services. The entry in the record-of-rights, therefore, offers no assistance in deciding the point that arises in this case, namely, whether the service tenures, we are concerned with, are of the class resumable at the will of the grantor, or, which cannot be resumed so long as there is no failure on the part of the grantee to perform the services required of him.

The cases relied upon by the appellant, mentioned above, also do not help us to decide this point. In the case reported in Hari Shankar Lal Sahu and Others Vs. Mt. Chandu Urain, the plaintiff alleged that during his lifetime one Chanku rendered services to the landlord as dhangar and enjoyed the land free of rent as a service tenure which was entered in the record-of-rights as nokrana. The defendant, on the other hand, asserted that the entry was wrong and she claimed the land as a raiyati holding in which her husband Manna and her husband''s father Chanku and before him their ancestors held as raiyats since 1869 on payment of rent to the landlords.'' In the alternative, the defendant asserted that even if the holding was held to be nokrana, she had ob tained the rights of a permanent tenant as a result of her being in possession continuously as a tenant from a very long time. The final Court of fact had disbelieved the case of the defendant and had held that the land in suit was ''Nokrana'' and that she had failed to prove that it was a raiyati land. Manohar Lall J. sitting singly, held that, on the finding that the grant was service-tenure, the onus was on the defendant to prove that she, who was allowed to be in possession of the land as a service-tenure, had acquired a right to hold it adversely to the plaintiff in her own independent right and that it was for her to establish that title by producing acceptable evidence in that behalf. The defendant having failed to establish her alternative case, his Lordship held that she was liable "to be ejected without notice. The question as to whether the tenure was a grant of an estate burdened with a certain service or, merely a grant in lieu of wages did not arise in that case and at any rate, was not considered. In the other case reported in Adivikolanu Chakrapani Rao and Others Vs. Sri Rajah Venkatadri Appa Rao Bahadur Zamindar, which is also a decision of a single Judge, the question really was as to whether lands granted in lieu of lavajamas would be service inam lands granted by the proprietor within the meaning of Section 17(2) of Madras Article II of 1894. The decision did not concern itself with the question as to whether lands granted burdened with a certain service can be resumed at the will of the grantor.

Adverting once again to the case in Radha Pershad Singh v. Budhu Dusadh 22 Cal. 938, relied on, on behalf of the plaintiff-appellant, it will be seen that their Lordships after the observations quoted above went on to say:

A distinction also exists between the grant of an estate burdened with a certain service, and that of an office, the performance of whose duties is remunerated by the use of certain lands. In the former case it would seem that the zemindar is not ordinarily entitled to resume, even if the service is not required, it the grantee is willing and able to perform the services, while in the other case he may do when the office is terminated.

In thus drawing up the distinction it will be seen a two fold classification of these service-tenures is made. First, between a grant for service of a public nature and a grant for service of a private nature. In the former the zemindar cannot resume, while in the latter case he may; secondly, it is said that there is a distinction between grants of an estate burdened with a certain service and those made in lieu of wages. What is to be borne in mind is that this two-fold classification of grants is not mutually exclusive. These may be classified as (1) grants of an estate burdened with service of (a) public or (b) private or personal nature and (2) grants of an office to be remunerated by the use of land, in other words, in lieu of wages, the service required being of (a) public or (b) private nature. These service tenures if they fall in the category of class (1) whether of description (a) or description (b) they are not prima facie resumable. In the case of grants falling in category (2) where there is no grant of land but only that of an office to be remunerated by the use of land, in other words, where the land is held in lieu of wages for services to be rendered, they would be resumable by the zemindar if the services to be performed are private or personal to him, and by the State if the services to be performed are of public nature, when the services are not required or when the grantee refuses to perform the services.

To determine whether a grant is resumable or not at the sweet will of the grantor what has to be found is the nature of the tenure, Was the grant made in lieu of wages for services, or was it an absolute grant subject to the condition of performance of certain services? So far as grants of the former description are concerned, the relation between the grantor and the grantee is that of master and servant--instead of remunerating the service by wages he grants land treating the rent payable as equivalent to wages and makes remission of the rent. The contract between the parties is in essence one of service and, as the master can on terminating the employment, cease to pay wages, in like manner he may resume the grant on dispensing with the service. As the servant cannot compel his master to continue to employ him on the score that he is willing and able to serve, in the case of such grants the grantee cannot claim as a matter of right to continue in the enjoyment of the tenures granted if the grantor wants to dispense with the services and does so.

Turning to the second description of grants, those burdened with services, the position seems to be that although there is no absolute grant there is undoubtedly a grant of an estate with a condition annexed to it, on the breach of which alone the grant may be resumed, that condition being the rendering of service. If the grantee refuses to perform the services, the grantor certainly becomes entitled to resume the grant. The mere fact that the grantor no longer requires service will not give him the right to resume the grant. In other words, whether the grantor requires the service or not, is immaterial to the grantee. The only question is whether there has been any default on the part of the grantee. It may, however, be stated that in the case of a grant burdened with service it may be made a condition of the grant that it should cease when the services are no longer required; but when there is a grant burdened with service of the kind just mentioned, in the absence of any provision to that effect, it is prima facie not resumable at the option of the grantor. In this connection reference may be made to the decision of their Lordships of the Judicial Committee in the case of AIR 1931 157 (Privy Council) . Their Lordships observed:

The distinction to be borne in mind is between the grant of an office to be remunerated by the use of land and the grant of land burdened with service. In the former case the land will prima facie be resumable; in the latter case prima facie it will not: but the terms of the grant or the circumstances in which it was made may establish a condition of the grant that it was resumable. The onus will be upon the grantor to make out such a condition.

Where there is a grant in writing and it is produced, on a construction of it will, certainly, depend the nature of the tenure, as to whether it was made in lieu of wages or was burdened with service. In Forbes v. Meer Mohammed Tuquee 13 M.I.A. 438 their Lordships of the Judicial Committee remarked:

The conclusion which they would draw from the decided cases, as well as from the reason of the thing, is, that in every case the right to resume must depend in a great measure upon the nature of the particular tenure, or the terms of the particular grant.

In the present case, where the original grant is not forthcoming and is not before the Court, the nature of the tenure can be determined only from the circumstances disclosed in the evidence. The final Court of fact on a consideration of such evidence as was available on the record has come to the finding that these tenures are in the nature of grants burdened with service of a personal nature. The finding being one of fact the appellant has not contested this finding, and has relied on it for asking us to hold that such tenures are prima facie resumable at the option of the grantor, the contention being as already stated, that inasmuch as the services required to be performed being personal to the grantor such tenures are prima facie resumable unless the grantee proves to the contrary. We are asked to draw the presumption that since the services required are personal to the grantor, the grants have the same incidence as those made in lieu of wages. This contention obviously ignores the fact that the finding of the Court below is that it was a grant of land burdened with service and that, as already stated, the nature of the service to be rendered in such cases is immaterial, as also that as held by their Lordships of the Judicial Committee in the case just mentioned AIR 1931 157 (Privy Council) , the onus is cast upon the grantor to rebut the presumption that such grants are not resumable,

It may be profitable to review shortly some of the judical pronouncements on this point. Forbes v. Meer Mohommed Tuquee 13 M.I.A. 438 is one of the earliest and most authoritative decision. Their Lordships having held that the jagir concerned in that case was inoluded in the Zamindari, proceeded to ask the question "But is it a necessary consequence of this finding that the appellant (the grantor) is entitled to resume these Jagir Lands?," and observed that his right to do so must depend upon the nature of the tenure. They distinguished between the two categories of grants and concluded that the grant before them was one burdened with service. In the course of the discussion they observed that the grantees they were dealing with were not. the private servants of the zamindar, but they did not anywhere say that if the services were private or personal there would arise a presumption that the grant was made in lieu of wages. On the contrary, their Lordships remarked:

It emphatically lay upon the appellant, who is seeking to dispossess,...to make out a clear title to resumption. In their Lordships'' opinion he has failed to do so; and, therefore, though: they dissent from the particular grounds on which the High Court has dismissed the suit, they think its dismissal was right and ought to be affirmed.

That case, therefore, did not recognise any rule of presumption as contended for on behalf of the appellant.

In the case reported in Baslingappa Virbhadrappa Huddar Vs. Chandrappa Basawantrao Desai, a contention similar to the one advanced in this case was rejected by the learned Judges with the observation:

In truth we know nothing whatever of the terms of the grant upon this vital point. The grant itself is not forthcoming, and the fragmentary evidence as to its nature goes no further than this that the grant was made for services. The presumption would be that those services were services rendered in the past and to be rendered in the future, and there is nothing in the evidence to repel that presumption or to establish the case which it is necessary for the plaintiffs to establish." The question again arose in Chandrappa Basawantrao Desai Vs. Bhima Dassappa Manikeri, and the learned Judges refused to recognise any such distinction between public and private services in cases of grants burdened with service and drew the presumption that such grants were not resumable. In the case of Sri Raja Venkata Narasimha Appa Rao Bahadur Zemindar Garu v. Sri Raja Sobhanadri Appa Rao Bahadur Zemindar 33 I.A. 46 their Lordships of the Judicial Committee held:

A zemindar has no right to resume grants of land which have been made subject to a burden of service, so long as the grantees or holders are willing and able to perform the services incident to their tenure, whether they are required or not.

It seems, therefore, well established that a zamindar has no right to resume grants of land made subject to burden of service so long as the grantee is willing and able to perform such service as is incident to the tenure, whether required or not, unless the grantor by proof of the terms of the grant establishes such a right.

On the findings, therefore, that the tenures involved in these appeals are grants of land burdened with service, although of a personal nature to the grantor, and that the defendants have committed no default and are willing to perform the services and the plaintiff landlord not having proved the terms of the grant, giving him such a right, we come unhesitatingly to the conclusion that these tenures are not resumable and that the plaintiff landlord has no cause of action. In the result the appeals are dismissed with costs.

Sinha J.

I entirely agree.