Stanley Batchelor, Kt., Acting C.J.
1. The plaintiffs are the Vatandar Desai Inamdars of Tallur in the Belgaum District, and they brought this suit, as the transcript of the plaint sets out, to recover possession of certain lands from the defendants on the footing that those lands had been, by the plaintiffs' ancestors, granted to the defendants' ancestors for the performance of certain services, which services the plaintiffs no longer required of the defendants. It was stated in the plaint that ' the services not being required in the present times, and the lands being resumable, the plaintiffs are entitled to recover them.' And it was then set forth that a notice to quit was served on the head of the defendants' family, and that the defendants had refused to surrender. Therefore this suit was brought.
2. The present appeal is by the defendants whose ancestors were grantees of the lands in suit from the plaintiffs' ancestors. The main question involved in the appeal is whether, assuming that the lands were granted in respect of service, they are resumable merely by reason of the fact that the services are no longer rendered because no longer required. The decision of this question appears to turn on the character of the services for which the grant was made, and a distinction has to be drawn between a grant made for services rendered and to be rendered, and a grant made as remuneration for or in lieu of wages or service. In the case of this latter grant, and not in the case of the former grant, the lands would be resumable on the discontinuance of the service. But the burden of proving that the case falls within the category of lands resumable on the discontinuance of service plainly falls upon the plaintiff who seeks to resume them: see the decisions of this Court in Lakhamgavda v. Keshav Annaji I.L.R. (1901) Bom. 305, which followed the Privy Council judgment in Forbes v. Meer Mahomed Tuquee (1869) 13 M. I. A. 438, and Yellava Sakreppa v. Bhimappa Gireppa I.L.R. (1914) Bom. 68, 17 Bom. L.R. 128.
3. Now the plaintiffs in this case must, in my opinion, fail because they failed to show that the grant made by them or their ancestors was a grant on terms that the lands should be resumable if the services ceased. 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 learned Assistant Judge says' that he is satisfied ' that this land was granted by the Desais for future service.' It is clear, however, that there is no evidence to support this finding, if it is to be read in the full rigour of the words; for the only documents upon which the plaintiffs relied in this connection were Exhts. 20 A and 56, which go no further than to show that the defendants' ancestors held as Nisbatdars under the plaintiffs' ancestors. That phrase, however, would only mean that the defendants' ancestors held either in relation to or under the plaintiffs, and that would be perfectly consistent with the case which the defendants now make. Since the plaintiffs are unable to show that the grant was such that the lands became resumable on the discontinuance of the service, the appellant-defendants must on this point succeed.
4. But then it was contended by Mr. Strangman that his clients, the plaintiffs, are entitled to judgment inasmuch as they were the defendants' lessors, and the defendants, prior to the institution of this suit, denied their title. Therefore, it is argued, a forfeiture of the holding has been incurred. Assuming for the purposes of the argument that the plaintiffs may be correctly described as the defendants' lessors, I am yet of opinion that the plaintiffs cannot save their position upon this ground. For, first, it is in my judgment clear that the whole suit up to this Court of Second Appeal has been fought out between the parties without reference to any such claim as this. As I understand the judgment and proceedings in the Court below, the plaintiffs' claim to recover the land was grounded only on this, that the grant was for service and the service had been discontinued. I can find nothing to warrant the idea that up till this moment the defendants ever had a fair opportunity of meeting the case that they must surrender the land because they have denied the plaintiffs' title. That being so, it is unnecessary to consider whether, if they had to meet such a case, they would be able to meet it successfully. But we have allowed Mr. Jayakar to discuss before us the documents upon which the case for the plaintiffs upon this point was mainly rested, and 1 am satisfied that in these documents there is no such repudiation of the plaintiffs' title as would work a forfeiture of the holding.
5. These being the only points mentioned in the argument, I am of opinion that the appeal must be allowed and the plaintiff's suit must be dismissed. It should be mentioned that although in the pleadings the defendants have, as is usual in the moffusil, overstated their case, and claimed that they were entitled to hold the land without rendering service, they now undertake through their counsel Mr, Jayaker to perform the accustomed services, should they ever be asked to do so.
6. In view of the fact that both sides have steadily overstated their real positions, we think that the proper order will be that each party should bear his own costs throughout.
7. I agree.