1. This is one of a fairly common and always interesting class of cases. Where ancient grants in this country are brought into controversy at the suit of the grantor seeking to resume, the law has in this Presidency at any rate been clear, simple and invariable ever since I have had any practical knowledge of it. All grants of that kind for the purpose of applying this law fall into two main categories: grants of lands burdened with service, and grants of office to which lands are annexed by way of remuneration instead of or along with cash. The former grants are always irresumable, unless the grantor can show that they have been specially conditioned so as to enable him to resume for failure to perform these services, or at his own will to discontinue the services and resume the lands. Grants under the second category are always resumable, unless the grantee can show that they have been specially conditioned otherwise so as to prevent their resumability. The first category has been sub-divided, though I think quite unnecessarily, for the purpose of discussing the broad principles of law in the case of Lakhamyavda v. Keshav Annaji I.L.R. (1901) Bom. 305 : 6 Bom. L.R. 364, into (a) grants burdened with service; (b) grants for services rendered in the past and to be rendered in the future, or, as we find in the older cases, pro sevvitiis impensis et impendendis. For the purpose of ascertaining the grantor's right to resume, this sub-division seems to me to have no relevance and to be of no assistance. Thus in every case of the kind it is always a question of fact and nothing more to determine whether the grant in suit falls within the first or the second category. If it be found to fall within the first category, it is always prim a facie irresumable. If it be found to fall within the second category, it is always prima facie resumable. And 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. Once these principles are clearly understood, I cannot see how there can ever be any difficulty in deciding cases of the kind we are dealing with beyond of course the always extreme difficulty of ascertaining what the actual facts were in the case of very ancient grants, where the actual deed, if ever there was a deed, has long since been lost.
2. Here, I gather that the learned Judge of first appeal really meant to find that this grant was a grant of land burdened with services. He has referred to a very recent decision in the case of Yellava Sakreppa v. Bhimappa Gireppa I.L.R. (1914) Bom. 68 : 17 Bom. L.R. 128 which, again, has been followed and approved in the case of Baslingappa v. Chandrappa : AIR1916Bom197 , as though this decision introduced some new element into the law. I do not think that it either did or was intended to. The reason why, as I understand it, the discussion was longer than is common in such cases to-day, was to rule out the rather vicious distinction drawn in a Calcutta case between 'public' and 'private' services. That distinction never has been recognised as far as I know in this High Court; and a very little reflection will show that in dealing with these ancient grants it would be virtually impossible to maintain such distinctions between the kind of services with which the lands were at the time the grant was made intended to be burdened. Nor in principle can the kinds of service so distinguished be of any value as affecting the application of the perfectly well-settled law. The most that could be said in favour of even noticing terms of this kind is that although the grants might have been in the first instance burdenod with services and so irresumable, special conditions might be sought to be proved, and then it might become a question whether the grantor would be permitted under those conditions to dispense with services in the performance of which the public indirectly had an interest. I think, however, that going into nice refinements of that kind only complicates this simple branch of the law quite unnecessarily and with very little likelihood of helping us in its practical administration.
3. Now, looking to the nature of this grant which is admittedly nearer two centurs than one century old, I see no reason whatever to doubt but that on the facts before them the Courts below have come to the right conclusion. 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 grantors the services of peons. However that may be, the only facts found here, and the only facts which could be found, are that the grantees have been in continuous possession rent-free for about one hundred and sixty years; and there is absolutely nothing known of the actual terras, if any terms there were, of the original grant. In my opinion, therefore, only one inference was possible and that is, the inference which the Courts below have drawn, viz., that this was a grant of lands burdened with services. As such the lands were irresumable.
4. In my opinion the decision of the Courts below is right and this appeal (and the other sixteen companion appeals) ought to be dismissed with all costs.
5. In this case the first Court found what were the proved circumstances concerning the relations between the plaintiff, the Inamdar, and the defendant, who was grantee under him, and from those circumstances, undoubtedly correctly, inferred that the grant was not resumable. The same conclusion was reached by the Court of first appeal. In that Court, I gather from the judgment that the circumstances were not disputed and the only matter which the Court had to decide was whether, that being so, the lower Court was wrong in holding that the grant could not be resumed. The first appellate Court decided, I think rightly, that the trial Court was not wrong. That is enough for the purpose of deciding this appeal. But some allusion has been made to a judgment of my own in the case of Yellava Sakreppa v. Bhimappa Gireppa I.L.R.(1914) Bom. 68 : 17 Bom. L.R. 138. It has been suggested in argument that this judgment is misunderstood, but I do not myself find any particular reason for supposing that it is. The only general importance of that judgment lay in the fact that we were declining to follow a decision which had been come to by the High Court of Calcutta. In every other particular it is merely a decision on the particular circumstances of that case ; and though the decision may have been of the highest importance to the parties, it was not, excepting in the one matter I have mentioned, of any general importance.
6. I agree that this appeal should be dismissed with costs.