1. The first five out of this group of six appeals arise out of suits filed by the holders of lands in the village of Sahijpur Bogha in Ahmedabad District against the inamdar of that village. The lands involved in these appeals arechakariatnakra, that is to say service lands free of assessment. The plaintiffs first claimed intheir plaints that they were permanent tenants of the lands in their respective possession and were not liable to be evicted by the inamdar. The inamdar contended that all the lands were service lands liable to be resumed at his pleasure. After his written statements were put in. the plaintiffs amended their plaints and admitting that the lands were theirchakariatnakra lands not liable to assessment, they contended that they and their predecessors in-title had never rendered any service, that they were no longer liable to render service and that the inamdar had no power to resume them. They, therefore, claimed a declaration that they were the absolute owners of the lands in their possession and an injunction permanently restraining the inamdar from evicting them. The inamdar contended that as the lands had been given for service, he had a right to resume them either on their refusal to render service or on their services being dispensed with. The trial Court upheld the plaintiffs' claim and declared that they were the absolute owners of the chakariat lands in their possession. The learned District Judge reversed all the decrees and dismissed the plaintiffs' suits.
2. Appeal No. 384 arises out of a suit filed by the inamdar for recovery of possession of Survey No. 342 at Sahijpur Bogha together with past and future mesne profits, on the ground that it was a ravania chakariat land, that it was resumable on discontinuance of service, that it had been resumed by the levy of double the assessment during the management of the village by the Talukdari Settlement Officer and that thereby the defendants who were in possession of the land had become his annual tenants or tenants at will. The defendants claimed that the land being chakariat inam it was not liable to be resumed, that by the levy of double the assessment the land had not ceased to be a chakariat land nor had they become the inamdar's annual tenants and that the inamdar had no right to evict them. The trial Court held that the defendants had become the annual tenants of the inamdar since double the assessment began to be levied from them and decreed the inamdar's claim. The learned District Judge took the same view and confirmed the decree of the trial Court.
3. The first question raised in all these appeals is whether the inamdar is a grantee of the soil or of only the royal share of the revenue of the village, Both the Courts below have held that he is a grantee of the soil and that finding is challenged by the landholders in these appeals. It is now well settled by the rulings of the Privy Council in Upadrashta Venkata Sastrulu v. Divi Seetharamudu Chidanibara Sivaprakasa v. Veerama Reddi Secretary of State for India in Council v. Srinwasa Chariar and Secretary of State for India in Council v. Laxmibai (1922) L.R. 50 IndAp 49 that there is no presumption of law that an inam grant of a village is prima facie a grant of the land revenue only as distinguished from the land itself. Each case must be considered by itself and the determining factors are the terms of the particular grant and the whole circumstances connected therewith. In the present case, however, it is not known when or on what terms the village was originally granted in inam. The grant was confirmed by the British Government and a sanad under the Summary Settlement Act (Bombay Act VII of 18630 was issued on August 27, 1864, in favour of the then inamdar Mirza Najaf Ali Khan Mirza Navab Saheb, reciting that he was already the registered holder of the village and declaring that he was the grantee of the whole village and that the village would be continued by the British Government as the private property of the grantee, his heirs and assigns on payment of Rs. 250 a year as fixed quit rent subject to all the pre-existing rights of others. This indicates) that what was granted was the village itself and not merely the revenue of the village. But in the absence of evidence about the terms of the original grant, the nature of the grant must be determined from the long course of conduct of the inamdar and the landholders. The circumstances indicating that the grant was of the soil of the village have been dealt with at length in the judgments of both the lower Courts. It is held proved that the inamdar used to take more than half the fruit of the mango trees in the lands of the village and to appropriate to himself the wood of all dead trees. Mr. Shah for the landholders argues that this must have been a customary right of the inamdar and it does not show that he was the grantee of the soil. No such custom was alleged in the lower Courts, but it was contended that he took the fruit for rakhvali. There is, however, no evidence to show that any watchman was ever kept by the inamdar to guard the trees. The inamdar would not be entitled to the wood of the dead trees if he was not the owner of the soil. In one of the tumors (exhibit 526) it is stated that out of the fruit of the trees the inamdar takes the soil share and the landholder takes the uchher-bhag (rearing up share). There are several documents showing that the inamdar used to sell his soil share in the fruit. This indicates that the trees were planted or reared up by the landholders on the soil belonging to the inamdar. The inamdar also relies upon the fact that earth used to be taken away from the soil only with his permission. But I do not attach much importance to this circumstance, since such permission was asked for and granted only in 1932. The inamdar claims to own wells in the village. But he is proved to be the owner of only four wells and this circumstance is inconclusive.
4. The learned District Judge has held it proved that when lands were acquired for the purpose of the Khari-Cut Canal the compensation was paid to the inamdar and not to those who were in possession of the lands. This is a very strong piece of evidence to support his claim to the soil of the village. It is true that in 1932 he purchased a land from a tenant, but, as pointed out by the learned District Judge, what he purchased was the permanent tenancy rights of that tenant. In that year he was already claiming to be the grantee of the soil and as such his permission was being taken for removing the earth from the soil. It is, therefore, not likely chat he would concede that the tenants were the owners of the lands.
5. After the death of Mirza Najaf Ali Khan, to whom the sanad of 1364 had been granted, his son Mirza Aftab Husain succeeded to the inam, and as he was a minor, the village was managed by the Talukdari Settlement Officer on behalf of the Court of Wards from 1903 to 1915. On attaining, majority he first leased the village to Sheth Maneklal Mansukhbhai and in 1924 he sold it to him for Rs. 55,000. The present inamdar Kuberdas purchased it from him in 1930 for Rs. 59,999. According to the sanad, the full assessment of the village was Rs. 2,002-12-8 out of which the quit rent had to be paid. It is, therefore, argued that the price paid for the village indicates that the purchaser must have expected to realise only the assessment from the village and that the price would not have been so low if the soil also was included. In view of the attitude taken up by the tenants, litigation must have been anticipated, and it is not strange that the village did not fetch an adequate price, and the low price paid cannot be attributed to the knowledge that the inamdar was a grantee of only the royal share of the revenue and not of the soil. From the other circumstances already pointed out, I hold that he is a grantee of the soil.
6. It is next contended that at any rate the inam grant did not include the chakariat nakra lands. This contention is based on the Inam Commission Sanad of 1864. In the Crop Register of that year (Samvat 1920) the total area of the lands in the village is shown as 2,015 bighas and 15 vasas, while in the sanad the area of the village is shown as 1,593 bighas and 15 vasas. But at the same time the sanad purports to confirm the grant of the ' whole village ' in inam. A look at the Crop Register shows that the total area of 2,015 bighas and 15 vasas was made up of 1,463 bighas of fully assessed lands (talpat sarkari), 132. bighas of lands paying only quit rent (or salami) and 420 bighas and 14 vasas of lands not liable to pay any assessment (nakra). This shows that the area given in the sanad does not include that of nakra lands which were wholly exempt from assessment. That does not mean that the grantor did not intend to part with the rights in those lands whatever they were, such as taking service from the holders or resuming the lands or levying full assessment on them in case of refusal to serve. The area and the assessment were mentioned in the sanad only for the purpose of showing the quit rent payable by the inamdar to Government at the rate of two annas per rupee. But what was granted to him was the entire village, and in all the Crop Registers maintained by the inamdar the nakra lands also used to be entered. It is not, therefore, correct to say that they were excluded from the grant.
7. As regards the inamdar's right to resume service lands, the distinction between the grant of lands burdened with service and the grant of an office to which lands are annexed by way of remuneration is well recognised.' In the former case the lands are prima facie not resumable, though the terras of the grant and the circumstances in which it was made may render them resumable; and the onus of proving this lies on the grantor; while in the latter case the lands are resumable in the absence of some provision to the contrary [Lakhamgavda v. Keshav Annaji I.L.R. (1901) 28 Bom. 305 Lakhamgouda v. Baswantrao : (1931)33BOMLR974 . and Sakharam v. PoornanandSaraswmi Swam : AIR1933Bom377 . Both the Courts below have referred to these cases and stated the rule correctly. The trial Court threw the burden of proof on the inamdar and held that he had failed to prove that the grant fell within the latter class or that there was a condition at the time of the grant that the lands were to be resumable. The learned District Judge, however, thought that the onus of proving that the grant was of lands burdened with service initially lay on the landholders and if they succeeded in discharging it, then the onus shifted to the inamdar to prove that they were resumable. He, therefore observed :
As the plaintiffs have not made out a prima facie case that the land was burdened with service, the burden is not shifted to the inamdar to prove the condition by which the grant would be resumable.
8. All the grants are admittedly ancient, and as there is no evidence to prove the terms of those grants, the question of the burden of proof is of vital importance-As observed by Mr. Justice Heaton in Yellava Sakreppa v.Bhimappa Gireppa I.L.R. (1914) 39 Bom. 68 in this Province the trend of decisions has always been in the direction of, within reason, protecting the rights of the occupants of lands and not increasing and exaggerating the rights of the inamdar or zamindar or whatever he may be termed, and the Bombay cases do undoubtedly disclose a reluctance to presume a right to resume lands where resumption involves ejectment. He further observed (p. 71) :-.I find myself entirely unable to presume that in this Presidency where there is a grant of land even for personal services, it) is at the option of the grantor to determine the services and thereupon td resume the land. It seems to me that if a grantor takes up that position' and claims that as his right, he must show either that the terms of the grant give him that right or if the terms of the grant, as here, are unknown that the proved circumstances justify an inference that he has that right.
9. This principle was even more expressly enunciated in Chandrappa v. Bhima bin Dassappa I.L.R. (1918) 43 Bom. 37 where Mr. Justice Beaman after referring to the two classes of grants observed (p. 41) :-.in every case the burden of proof must necessarily be upon the grantor seeking to resume to show that either the grant was of a kind falling under the. second category, or, if a grant of the kind falling under the first category, that It was specially conditioned.
10. The learned District Judge has, therefore, gone wrong in throwing the burden of proof on the plaintiffs. He should have started with the presumption that the lands are not resumable and then proceeded to consider whether the inamdar has succeeded in proving that they are.
11. The land involved in Appeal No. 384 is Survey No. 342, a part of old Survey No. 125 and is said to be ravania chakariat nakra. : Ravania is a village watchman. The lands involved in the other five appeals are all in one and the same family and are said to be garasia chakariat nakra. ' Garas ', according to Wilson's Glossary, is ' land given for maintenance'. There is no satisfactory evidence about the duties of these garasias. According to the inamdar their service was to keep a watch at the inamdar's haveli at Ahmedabad during his absence at Cambay, to escort the inamdar between Ahmedabad and the village while coming and going, to attend on him at the chora when he camped at the village and to assist the karbhari and talati in the village work at the chora. Thus they are more or less the personal servants of the inamdar. In Radha Pershad Singh v. Budha Dashad I.L.R. (1895) Cal. 938 it was held that where there was a grant of land for personal service, the grantor had, under the common law of the country, the right to dispense with the service and resume the lands. But, as pointed out in Yellava Sakreppa v. Bhimappa Gireppa, this distinction between grants for private service and public service is not observed in this Presidency and in either case the grantor must establish that he possesses the right of resumption.
12. There is not an into of evidence to prove that the offices of garasias and ravanias were first created with lands annexed to them for remuneration and that the ancestors of the present holders were appointed to those offices. To cite an instance in point, the tumor (exhibit 194) shows that one service land was granted to a mochi (shoe-maker) and the service he had to render was to make and mend shoes for the inamdar. It cannot be said that the office of a mochi was created and the land was set apart for the remuneration of the office. InChandrappa v. Bhima bin Dassappa the service to be rendered by the grantee was that of a peon or attendant of the grantor, similar to that of the garasias in these appeals, and in the absence of evidence regarding the terms of the grant it was held to be a grant of lands burdened with service and that the lands were irresumable. Mr. Justice Beaman observed (p. 42) :-
It is in the first instance extremely improbable that an Inamdar or a Durbar would create and grant a State office of peon, annexing thereto State lands by way of salary. On the other hand, it is extremely probable that the grantors here did in those remote days grant certain lands so that the grantees and their descendants should, when called upon, render to the grantorsthe services of peons.
13. These observations equally apply to garasia chakriat lands, and I will deal with the case of ravaniai chakariat lands separately.
14. The village was surveyed in 1857 prior to the issue of the sanad of 1864 and tipans from the field book of that year have been produced. In the tipans regarding these garasia chakariat nakra lands the letter (sic) was significantly added to show that the holders were 'maliks' or owners of those lands. In his written statements in all these suits the inamdar stated that the lands had been given to the garasias for service, and not that they had been annexed to the offices of garasias, and even in the memo, of appeal in the lower appellate Court it was not suggested that any such offices had been created toy the inamdar and that the lands had been assigned as remuneration of those offices.
15. The inamdar relies upon two statements made by some of the garasias in 1903 (exhibit 411) and 1913 (exhibit 105) admitting that the lands had been given to them for service, that they had been rendering service and that they were willing to render service in future. These statements were made when, during the minority of the then inamdar, the Talukdari Settlement Officer was managing the estate on behalf of the Court of Wards. It is possible that he was taking steps to resume the lands as the garasias were not rendering any service and in those circumstances the garasias, being afraid of losing their lands, may have been advised to express their willingness to render service. Their statements, however, do not carry the case any further. There is no doubt that the lands were granted for service and the grantees are bound to render the service for the purpose of which those lands were granted lo them. It is true that one of the garasia plaintiffs (exhibit 103) says that two or three years ago the inamdar had sent for all the garasias, calling upon them to render service and that none of them went as they were not liable to render any service. But it must be noted that the statement was made in March, 1937, so that the incident referred to must have taken place after the institution of these suits in 1934 and, therefore, whatever the inamdar did during the pendency of the suits cannot affect the rights of the landholders as they existed at the date of the institution of the suits. I may also refer to another similar incident mentioned by the inamdar in his cross-examination. He says that in about February or March, 1932, he had called upon the garasias to render service by keeping a watch at the marriage mandap put up at his place in Ahmedabad and that the garasias refused to serve saying that it was below their dignity. In his written statement the inamdar does not say that the garasias were liable to render such service to him and it cannot be said that the garasias refused to render the service for the performance of which the lands had been granted to them,
16. It is true that in some instances the garasia chakariat nakra lands were resumed by the inamdar as no service was being rendered, but they were subsequently returned to the garasias on their agreeing to render service. They do not establish the right of the inamdar to resume the lands. As he restored them, there was no occasion to put his right to test in a Court of law.
17. The very description of the lands as chakariat lands does indicate that some sort of service has to be rendered by the garasias, but the nature of the service is somewhat vague and uncertain. The inamdar claims four specific kinds of service from them, viz. (1) to keep a watch at the inamdar's haveli at Ahmedabad during his absence at Cambay, (2) to escort the inamdar between Ahmedabad and the village, (3) to attend on him at the chora when he camped at the village and (4) to assist the karbhari and the talati in the village work at the chora. The inamdar says in his statement that he has got nothing to show that the garasias did in fact serve in the past and it is not proved that they ever assisted or were bound to assist the karbhari and the talati in the village work at the chora. But in 1913 Daji Halji, father of one of the plaintiffs, made a statement on behalf of himself and other garasias that they were watching the inamdar's house at Ahmedabad when he went to Cambay and that they used to escort him to the village. It naturlly follows that after escorting him to the village they must have been attending on him in the chora. Thus the claim to the first three kinds of services may be held to be proved by this admission. It is true that there are many garasias to whom service lands have been granted, and, to quote from Lakhamgowda Basavaprabhu v. Appanna (1928) L.R. 56 IndAp 44 the explanation would appear to be that the position of the inamdar, in old times rendered it necessary for them, according to the custom of the country, to have a large retinue of peons and attenders in their service It is quite likely that of late these garasias might not have had any occasion to render any such service as none was necessary on account of modern facilities and the change in the ideas of dignity. Moreover, the present inamdar is a recent purchaser of the inam village and it is not known whether he has purchased also the inamdar's haveli at Ahmedabad and whether it is now necessary to have it guarded by the garasias, nor is it known whether he has any occasion to go to Cambay, so that during his absence in Cambay his haveli might be guarded by them. However, when the occasion for service arises they will have to render it, as held in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438. In that case lands had been granted for the past services of the grantees whereby the incursions of elephants upon cultivated lands in the village had been prevented and the grant was expressly made as a reward for such past and future services in order that the cultivation might become extended and the ryots thereof be protected by the grantees. In course of time the incursions of wild elephants became scarce and a matter of tradition, so that the services for the performance of which the land had been granted became obsolete and yet those lands were allowed by the zamindar to continue undisturbed in the possession of the grantees and the lands were held to be irresumable on the ground that the services were no longer required but the grantees were bound to perform the services if and when required. The same view was taken in Lakhamgowda Basavaprabhu v. Appanna (supra). Hence although the plaintiffs are entitled to the declaration and injunction prayed for by them, a clause will have to be added regarding their liability to render service as in that case.
18. The relations between the inamdar and the garasias appear to have been strained and unless they improve, it will be difficult for the inamdar to take service from such unwilling servants. He will be well advised if he comes to some settlement with them and frees them from liability to serve on receiving some payment in cash, as he has done in the case of some of the holders of ravania chakariat lands.
19. He has done so in the case of the land involved in Second Appeal No. 384 of 1940, but the Courts below have held that thereby the holders became annual tenants and decreed the inamdafs claim to evict them. That land is Survey No. 342 which was a part of old No. 125. Before 1878 it was held by one Juma Malji. In the tipan of 1857 (exhibit 429) the description given is ' Ma. Chakariat-Juma Malji', thus showing that Juma was its malik or owner subject to the liability to render service. In the crop registers of the inamdar the land was described as chakariat nakra. In 1878 Juma Malji and his son Jesing Juma, claiming to be the absolute owners of the land, sold it to Purshottam Hirachand. Purshottam's widow Bai Mahakore sold it to Shankar Naran in 1893. It appears that Shankar leased out the land to Jesing Juma and obtained from him a rent-note in the same year. Shankar Naran sold it to Gordhan Laxmichand in 1901. The appellants are the sons and widow of Gordhan Laxmichand. After Shankar sold the land to Gordhan he gave an intimation in writing to Mehtaji Mansukhrarn to enter Gordhan's name in the inamdar's records as the holder of the land. It appears that the land was originally given to Juma Malji for rendering the service of a ravania or a village watchman. But at least from 1878 when the land was sold by Juma Malji and his son to Purshottam Hirachand no such service was rendered by the holders of the land. In the village records, the tipans, the kayam khardas, and the crop registers the land continued to be shown as a chakariat nakra land, and, although the land was transferred to strangers in 1878, Juma Malji's name continued to be shown in the crop registers as its holder till Samvat 1959 and thereafter his son's name was entered as the holder up to Samvat 1963. The name of Gordhan came to be entered in the crop registers only after Shankar Naran gave an intimation of the sale-deed in his favour in 1902. About that time the village went under the management of the Talukdari Settlement Officer, and when it was discovered that some chakariat lands had gone into the possession of strangers who were rendering no service proceedings were started and the talati was asked to report about the lands on June 1906. The talati reported that the ravanias who held the land were quarrelsome and did not perform any service. The Mamlatdar then issued a summons to Jesing Juma and Bapu Juma, the sons of Juma Malji, and recorded their statements on October 25, 1906. They expressed their inability to serve and also to relinquish the land or to pay assessment for the same. Then in December, 11906, Lila Jesha and Vira Patha made a statement agreeing to work as ravanias if the ravania service lands in the village were given to them. The statements of Jesing Juma and Bapu Juma recorded in those proceedings cannot in any way affect the rights of those who were then in actual occupation of the lands. It appears that in 1909 the names of the new ravanias Lila and Vira were entered against the land and the talati reported that the land was actually held by Gordhan. The talati also stated that Gordhan who was in possession of the land was not willing either to vacate the land or to pay the assessment for the remuneration of the new ravanias. Thereupon a notice was issued to Gordhan and eventually Gordhan was asked to pay double the assessment presumably for the remuneration of those who had to serve as ravanias. On June 16, 1930, Gordhan made a statement (exhibit 62) to the effect that he wanted to be allowed to retain the land with him as a permanent tenant and that as it was a chakariat' land he was willing to pay one and half times assessment, Rs. 10. He requested that the notice issued to him should be cancelled on that understanding. The trial Court has misread this statement and understood it as Gordhan's expressing a willingness to be treated as an ' ordinary tenant'. The learned District Judge has corrected that mistake and stated that what Gordhan wanted was that he should be treated as a permanent tenant. But the Mamlatdar recommended that all the strangers who were in possession of ravania chakariat lands should be allowed to retain them on payment of double the assessment and that the amount thus recovered should be paid to the ravanias engaged in rendering the service. This recommendation was accepted by the Talukdaii 'Settlement Officer. But it appears from exhibit 16 that in the case of all the strangers who held ravania service lands, except Gordhan, only the assessment and not double the assessment came to be recovered since Samvat 1971. But in the case of Gordhan he was called upon to pay double the assessment and that amount is being paid every year since then. From this the trial Court has come to the conclusion that though at first the village ravanias enjoyed the lands as remuneration for service, on the lands being alienated by them, double the assessment began to be recovered from the purchasers at first, and later on more assessment used to be recovered from them and that thereby their tenure was converted into a tenancy at will. Agreeing with that view, the learned District Judge has observed that on Gordhan's agreeing to pay double the assessment every year the land ceased to be chakariat nakra land and Gordhan became an ordinary tenant liable to be evicted on a proper notice being given.
20. I am unable to agree with this view, both because Gordhan agreed to pay the assessment on condition that he should be retained as a permanent tenant of the land, and, secondly, because the amount of double the assessment was recovered as the price of exemption from liability to render service. That does not mean that the nature of the tenure was thereby altered.
21. In Lakhamgouda v. Baswantrao : (1931)33BOMLR974 . land in dispute had been granted for service as shiledar or mounted follower. But since about 1868 the holders of the land had been paying to the inamdar an amount equal to assessment as nokrianska or an yearly payment in lieu of service and it was held that the inamdar had no right to resume the land so long as service or its equivalent in money was forthcoming. So, too, in the present case by electing to accept double the assessment in lieu of service, the inamdar relieved the holders of the land of their liability to serve and allowed them to remain in possession as absolute owners on payment of that annual amount. Their tenure, therefore, did not thereby become annual tenancy and they are not liable to be evicted. The inamdar's suit for possession must, therefore, fail.
22. I, therefore, allow Second Appeals Nos. 735, 736, 748, 787 and 788, set aside the decrees of the lower appellate Court and pass a decree declaring that the plaintiffs are the absolute owners of the lands in their respective suits, subject to the liability to render service, and restraining the defendant inamdar from interfering with their possession so long as the said service is forthcoming. I also allow Second Appeal No. 384 of 1940 and dismiss the suit of the plaintiff inamdar. The appellants shall recover their costs from the inamdar in all the appeals throughout.