1. The land in dispute has admittedly been rent-free for fifty years. This is sufficient to throw upon the person demanding rent the burden of proving that rent is due.
2. The case made by the defendant (the Talukdari Settlement Officer) is that the land is service land, and that, as service is no longer required, rent must be paid. It appears to us that this is not a sufficient defence to the action.
3. In Baboo Koolodeep Narain Singh v. Mahadeo Singh 6 Cal. W.R. 199 Civ., Rul., see p. 203), Peacock, C.J., says: '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 release the services, or a portion of the services, upon which lands are holden, the tenant may hold the land free of the services; but the landlord cannot put an end to the tenure, and resume the land. Many services upon which very valuable estates are held are of little value now. The estates may be very valuable, and the services almost valueless. But some large landed proprietors would be somewhat astonished if they were told that the services have been dispensed with, and their estates are liable to be resumed. It might as well be contended that if lands are granted at a small quit-rent, the landlord might relinquish or dispense with the payment of the rent, and take back the lands. It is said in the plaintiff's written statement that the sanad was granted upon condition of rendering services. But, even if it were so, the person to whom the condition is to be performed, cannot, by dispensing with the performance of the condition, put and end to the grant. If lands were granted upon condition of paying a certain rent, the grantor or his representatives would have no right to say, when the lands are very valuable, 'I will dispense with the performance of the condition, I will exempt you from the payment of the rent, and I will take back the estate.' If he could not do so in the case of rent, why should he be able to do so in the case of services? '
4. In Forbes v. Meer Mahomed Tuquee (13 Moore Ind. Ap. 438; see p. 463), their Lordships of the Privy Council say that they cannot but express their concurrence in many of the general principles laid down by the Chief Justice in the above passage.
5. In the same case their Lordships adopt a distinction between the grant of an estate burdened with a certain service, and the grant of an office, the performance of whose duties is remunerated by the use of certain lands.
6. Of the former description of grant they say: 'Their Lordships do not dispute that it might have been so expressed as to make the continued performance of the services a condition to the continuance of the tenure. But in such a case either the continued performance of the service would be the whole motive to, and consideration for, the grant, or the instrument would, by express words, declare that the service ceasing, the tenure should determine.'
7. In the present case, if the grant was of the former description, there is no evidence whatever that it was of such a nature, or so expressed, as to make the continuance of the tenure dependent on the continuance of service. The grant may have been made as a reward for past as well as an inducement to future services. No sanad is forthcoming, so that of the terms of the grant we know nothing.
8. If the grant were of the other description, (and looking to the nature of the service--that of cook to the Durbar--it probably was so), the use of the land was merely a remuneration of the service, and prima facie the grantor would be entitled to resume the land if the service ceased. But it appears to us that the right to do so has become barred by lapse of time. The original grantee, according to defendant's statement, was Jiva Keshav. Jiva seems to have had nothing to do with the land after 1834, and it was dealt with as their own by the persons through whom the plaintiffs claim. Still it may be admitted that, as the District Judge says, the Talukdar had no occasion, so long as Jiva lived, and the service was performed, to trouble himself as to the manner in which the land was dealt with. But Jiva died in 1853, and then, at all events, if not before, the right of resumption accrued. Even in this country the office of cook can hardly be considered hereditary. Jiva's successor in the office, Morar Ganesh, is not shown to have been his heir. There must have been a fresh appointment; and if the use of the land were intended to be the remuneration of the new cook, a resumption and re-grant were necessary. Nothing of the kind is shown to have been done. It is true that, ten years after Jiva's death, the land was entered in the name of Morar Ganesh. But Morar Ganesh never had possession of the land. The plaintiffs and those through whom they claim (or their mortgagees) have had undisturbed possession for some forty years; and, at all events since Jiva's death, that possession must be regarded as adverse to the Talukdar. His right to resume or to assess the land is, consequently, barred by Act IX of 1871, Section 29, and Article 130, Schedule II.
9. For these reasons we reverse the decree of the Courts below, and allow the claim, with costs on defendants throughout.