Prankrushna Das and Others vs Keshab Maharana and Others

Ray, J.—This is a plaintiffs second appeal preferred in a suit for recovery of possession of 1.21 acres of land in mauza Anka, district Balasore, tauzi No. 3968. The plaintiffs admittedly constitute the entire body of landlords of the village in question. The ground on which they base their claim for ejectment is that the disputed lands were service-lands (jagir) of a carpenter being a village servant In the settlement record of the year 1928 the tenure of defendant 1, is described as deshata (for the benefit of the country) barhai (carpenter) jagir (service-lands). To the same effect was the description of the tenure in all the preceding settlements including that of 1898 known as Provincial Settlement. It is alleged that defendant 1 has transferred by a permanent lease the disputed lands to defendant 2, and has abandoned his residence in the village in question having gone over to a feudatory state nearby. Defendant 2, who is a non-carpenter, and, therefore, not able to serve the village community as a carpenter is wrongfully in possession of the lands. Hence, the plaintiffs as landlords of the disputed holding seek to resume the service lands on the ground that the service holder has ceased to perform the services, and to recover khas possession thereof after ejecting defendant 2.

The suit is resisted by defendant 2, and it is ex parte as against defendant 1. Both the learned Courts below have agreed in coming to a finding that defendant 1 has abandoned the village and has permanently abandoned the services of a carpenter which he was to perform to the members of the village community including the landlords and that he has, therefore, forfeited his right to hold and continue in possession of the disputed lands. The parties have presented their respective cases in this second appeal without challenging this finding which has become final for the purpose of this case.

The plaintiffs'' suit has been thrown out by the lower appellate Court on the ground that on cessation of the village services, and on consequent forfeiture of the jagir by the holder thereof, it is not the landlords who are entitled to get possession thereof as they are neither the grantors with an ultimate right of reversion in their favour, nor are they representatives of the village community, for whose benefit the lands had been dedicated and given to be held revenue-fees by the village servant. That the holding is mon transferable is clear from the provisions of Section 235, Orissa Tenancy Act, which provides that nothing in the Act shall confer a right to transfer or bequeath a service-tenure which before the commencement of this Act (1918) was not, capable of being transferred or bequeathed. That these jagir lands were not capable of being transferred or bequeathed will appear from a description of their incidents incorporated by Mr. Maddox in his report on the Provincial Settlement of Orissa, vol. I. page 232, para. 338. The following is a quotation from the said report.:

The confirmed jagirs are tenable only so long as the service for which they are granted is performed. They are by custom heritable but cannot be partitioned or transferred, though oases have been brought to light where this has been done.

On principle of general law, the lands constituting as they do emoluments for service of a public nature are inalienable as much as the office itself. That the lands are inalienable, and that defendant 2 by the transfer in his favour has acquired no interest in the disputed lands, are not contested in second appeal.

The next point for consideration is whether defendant 1''s right to hold the tenure has come to an end. On this point too there is no controversy in view of the concurrent findings of both the Courts below that defendant 1 has once for all abandoned the office, and has neither been doing any service since the transfer, nor has any intention to do. There can be no manner of doubt that his tenure as a village servant, and, therefore, his rights to hold the lands as emoluments of the office have terminated. The result, therefore, would be that the lands must, in ordinary course of events, be resumed by the person having the right to do so either for the purpose of vesting it in another village servant appointed to do the appropriate services for the emoluments of which the lands were granted, or for the purpose of being held by whosoever is entitled to hold them enfranchised from performance of any services whatsoever. Ordinarily, the holding ought to retain its character of a service tenure so long as the services for which it was meant are necessary, and the only change that would ensue from an invalid transfer by the service holder would be to vest the lands in his successor in office. Where, however, the services are no longer necessary, and the office is abolished, the lands ought to go back to the source from which they came, namely, the grantor.

From the historical review contained in the very valuable Settlement Report of Mr. Maddox, it appears that like carpenters, there were various other kinds of village servants, namely, chaukidar (village watchman), patwari (village accountant), bhandari or napit (village barber) dhobi (washerman), kamar (blacksmith), kumbhar (village potter) nayak or jyotish (astrologer), abadhan (teacher), ghat manjhi (ferry man), mehtar (sweeper) and purohit (priest) of whom five classes including the carpenters only have been in possession of jagir lands, the others more rarely. They were all the servants of the community, and besides holding jagir lands were in the habit of receiving small fixed customary payments from the villagers, besides customary fees on special occasions. Besides the above, there were a certain number of miscellaneous jagirs. This review contains how the jagir lands attached to the services which were dispensed with were treated by the Government at the Settlement; for example, the chaukidars'' jagir lands were resumed, and the jagirdars were recorded as thanis (occupancy raiyats) in respect of such lands, and they were assessed at full rates. So was the case with village patwaris. When all attempts to make use of their services by the British Government failed, the Jagirs of the patvaris were resumed and assessed at full rates. In settlement records they have been treated as thanis and ceased to render any service to the State, either to village or to zamindar. Most of the miscellaneous jagirs, which were few in number and small in extent, were also resumed at the last settlement and are recorded as jagir bazayafti (resumed) tenures. Certain jagirs of village servants were confirmed about which Mr. Maddox in his report says: "The confirmed jagirs are tenable only so long as the service for which they are granted is performed." Mr. Dalziel in his report at page 55, paragraph 188, stated that:

the authorities of the last settlement operation came across some deshheta jagir lands alienated to persons who did not perform the services for which they were held rent-free by the previous holders. A suggestion was made to ignore the transfers as those had been made in contravention of Section 235, Orissa Tenancy Act, and to restore the lands to the village servants but the Board of Revenue turned down the proposal and under the Government orders those lands were recorded in the name of the alienees and assessed to rent at the village rate.

The historical treatment of the precedents by Mr. Maddox and Mr. Dalziel leads unmistakably to the conclusion that in no instances either during the Provincial Settlement of 1898 or during the Revisional Settlement of 1922-32 the zamindars of the mahals within which the lands were included ever advanced any claim either to khas possession or to power of disposition in respect of lands of the jagirdars whose services had either fallen into disuse or were not performed, and the lands alienated to unprofessional people. The matter was considered to be completely at the disposal of the State.

The real question in dispute in this case is if the plaintiff-landlords are entitled to recover khas possession of the holding as I have indicated above; so long as the village service in question is necessary in the interest of the village community, it cannot be said that the purpose of the grant has spent itself up. Nor is there anything to indicate that the village community do not want to utilise the lands for the purpose of their services. Under the circumstances, I am not willing to hold that the service lands in dispute should be treated as completely enfranchised from the services for which they were dedicated. In case it be assumed that the lands can now be disposed of independently of the services, the question arises whether the landlord has got the power of disposition. The landlord would have it if they, by which I mean his predecessor-in-interest, were the grantors, it being the acknowledged principle of law that when any endowment or grant expires on account of its purpose having failed, the property dedicated comes back to the source from which it flowed. But the, plaintiffs have in this case proved nothing to establish that the lands were granted by the proprietors for the time being. It is hardly in dispute that these lands are revenue-free. In this connection my attention has been invited by the learned Counsel for the respondents to page 73 of Dalziel''s Settlement Report wherein deshheta jagir as the present jagir is described in the following terms:

Land held rent-free by village servants in return for the services of the community. Held to be not terminable at the will of the landlord. Exempted in temporarily settled estates from payment of land revenue.

The estate in which the disputed land lies is admittedly a temporarily settled estate. Its revenue free character indicates that the land must have been granted by a sovereign authority as distinguished from an authority with a proprietary right. Its exclusion from assessment of revenue indicates that the holding is not included in the assets on the basis of which the estate has been settled with the landlord and its revenue fixed. If it were otherwise, it was quite open to the landlord to have proved the contrary by production of evidence available to show what and how much the lands are in respect of which the revenue has been assessed and a settlement concluded with the proprietor by the Government. They have refrained from doing so. Mr. Sen Gupta appearing for the appellants seeks to contend that the record of rights showing that the lands are included in tauzi No. 3968 in mauza Anka of which the plaintiffs are recorded as proprietors should carry the presumption that the lands notwithstanding its revenue-free character were settled with them. I do not accede to this contention at all. Such a contention is not only incompatible with the precedents deducible from instances of resumption of jagir lands at the two previous settlements but also with the fact found mentioned in Mr. Dalziel''s report namely, that in order to prevent the landlords from resuming the holdings at their sweet will, they were recorded as deshheta jagir. In any view, even if they had any sort of right in these lands, their being recorded as deshheta jagir lands, and their right of resumption having been denied for a great length of time, for more than statutory period of 12 years, it cannot now be predicated that the right, if any, still subsists. At any rate no presumption can be made in favour of the landlord as contended for by the learned Counsel for the appellant. Sovereign power of the country is the ultimate owner of all the lands, and any right claimed by any subordinate tenure-holder, be he a proprietor or tenure-holder, or a raiyat, is derived from that power. It is also common ground that the sovereign authority is the custodian of public rights. Therefore, every presumtion should be made that until the contrary is proved, it is the sovereign power that can resume and recover possession of the service lands. Mr. Sen Gupta contends that this is not a suit for resumption, but it is a suit for recovery of possession of the lands from a trespasser. If, I have understood him aright, he means to contend that it may be that the landlord is not entitled to resume but when the lands are abandoned by the service tenure-holder, he is the person to get possession. I find no difference between the two. The very ground on which he has not the right of resumption will be sufficient to defeat his claim for recovery of khas possession. It may be and in all probability it will be if the sovereign authority restores possession, the lands may be included within the mahal of the plaintiffs and may be settled with them. To allow the landlord to recover khas possession would amount to deny the Government its part of the revenue and to confer the same on the landlord who obviously enough is not entitled to that part of the revenue which is due to the Government. The Government has settled the temporarily settled estates for a term of 30 years during which the landlord is not liable to pay any more revenue than what is assessed at the settlement howsoever and whatsoever his income from the estate might be. If it be held that the landlord is entitled to recover possession of this land, it would amount to making a revenue-free grant to the landlord and to take the lands away from the village community for whose benefit they were granted to the village servant, and that for no consideration.

In Alexander John Forbes v. Meer Mahomed (70) 13 M.I.A. 438, the appellant, the owner of the zamindari right in pergana Sultanpore, district Purnea, wanted to eject the respondents from 9000 bighas of lands held by them upon service-tenure. It was a hereditary? jagir tenure lying geographically within the'' ambits of the zamindari. The services on which they were held being no longer required or performed, the zamindar wanted to resume them. The basis of his claim was that the lands were within the limits of his zamindary settled in 1802 as is contended here and that as between the Government and the zamindar they were then treated as mal or revenue paying lands and a revenue assessed upon them. Their Lordship ships of the Privy Council in deciding if the zamindar had established his case paid attention to as to how the lands were dealt with on the occasion of the settlement, and finding that they were then unquestionably held rent-free and being treated as lakhiraj, their Lordships observed that in that case no revenue would be assessed upon them, nor would the zamidar acquire any right to question the validity of the title on which the lakhiraj land to that extent was held. Their Lordships observed:

It is, therefore, a very material issue whether, in point of fact, these lands were, on the occasion of the settlement, treated as part of the mal assets of the zamindary.

After considering the evidence, their Lordships expressed an opinion in the following terms: "Their Lordships are not prepared to say that the appellant has established the affirmative of this issue beyond reasonable doubt." Under the circumstances their Lordships held: "Their right whatever it be, was derived not from any zamidar, but from the Supreme authority in the State." In this view of the matter, their Lordships held that the appellant, zamidar, had failed to make out a clear title to resumption. As I have indicated above, in the absence of any evidence to show that the disputed lands were included within the mal assets of the zamindar at the time of the settlement, it cannot be said that he has the ultimate right of reversion and right of khas possession.

In Nilmoney Singh Deo v. The Government (72) 18 W.R. 321 the zamindar''s right of resumption of certain jagir lands came up for consideration before their Lordships of the Privy Council. The grant, it appeared, emanated from the Government of India and was issued with the sanction of the Rajah (the zamindar), but did not appear to be a grant by the Rajah. Their Lordships observed that in order to be entitled to resume this land, the Rajah ought to have established that the tenure was a tenure of service by which personal services only to the Rajah were to be performed by the jagirdar. The evidence showed that the services were of a public nature and not absolutely private or personal. Their Lordships held in the following words:

It must be admitted that, if the former (public and not solely private or personal) was the nature of the services, the Rajah cannot resume the land.

This case establishes two propositions, namely, that in order to entitle the zamindar to resume, it must be shown either that the grant was made by him, or that the tenure was a tenure of service by which personal services only to the zamindar were to be performed by the jagirdar. In this particular case, it has been found that the services are of a public nature, and that the jagir was confirmed by the Government and was recorded as deshheta jagir in order to prevent the zamindar resuming it at his sweet will.

In Radha Pershad v. Brudhu Dashad (95) 22 Cal. 938 it was observed by the Calcutta High Court that:

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 zemindar is not entitled to resume, while in the latter case he may do so, when the services are not required or when the grantee refused to perform the services.

The learned Counsel for the appellants, while conceding that the plaintiffs have no right of resumption, urges strenuously that their right to khas possession is distinct from the right to resume and arises when the service lands are abandoned by the service-holders, the land being a part of the mahal lands settled with him. As I have already observed he has placed absolutely no materials to show that the lands constituted a part of the mal assets of the mahal at the settlement. I have given reasons to show that the contrary is the presumption arising from the circumstances indicated above. To resume means to take the lands away from the purpose for which they were granted that is to free them from service-tenure. Until that is done by a person having authority to do so, question of khas possession does not arise.

In the result, the plaintiffs have failed to make out a clear title to recover possession of the disputed lands. Therefore, the appeal having no merit is dismissed with costs.

Meredith, J.

I entirely agree.