1. The respondent purchased by a sale-deed dated October 13, 1910, the land in suit, from one Fakirappa and brought this action against the appellant who was in possession. Both the lower Courts have decreed the claim. Mr. Desai on behalf of the appellant has advanced two contentions : (1) that the land in suit is a 'Khushbhas Inam' which is inalienable and (2) the respondent's claim is time-barred.
2. The appellant is the Inamdar, His case is that the land is of a service Inam tenure granted by the Inamdar to one Irappa. On the death of Irappa his son Fakirappa agreed to render the service attached to the tenure and so succeeded to the land. In the year 1911 Fakirappa being no longer willing to render the service imposed by the tenure surrendered the land to the Inamdar.
3. To take the second point first: Both the lower Courts have held that the appellant went into possession of the land in the year 1911 and that his adverse possession did not commence until July or August 1911. The suit was brought in 1922 within the period of twelve years required for the perfection of a title by adverse possession. Mr. Desai has argued that Fakirappa did not pay the assessment on this land since 1904 and in the year 1912 the appellant paid the arrears of assessment from 1905 to 1912. From that circumstance he wants us to infer that Fakirappa was not in possession of the land from 1905 and that the appellant's possession began, in 1905. In view of the admission made by the appellant before the trial Court and the concurrent finding of the two Courts, that the appellant entered into possession of the land in 1911 only we do not agree with Mr. Dasai contention that the appellant must be deemed to be in possession since 1905 and to have acquired a good title to the land by adverse possession. The non-payment of assessment by Fakirappa from 1905 does not necessarily prove that he was then dispossessed by the appellant. The point of limitation taken by Mr. Desai, in our opinion, fails.
4. With regard to the first point, the land is described in the accounts of the Inamdar for 1857-62-65 and 68 as 'Khushbhas Inam.' That appears under the sub-heading 'Bakshis Inam to those who render service.' That sub-heading is under the main heading 'lands in the possession of those who do not render service.' The meaning to be attached to the term 'Khushbhas Inam' is discussed at length in the judgments of both the Courts. Our attention has been called to the meaning of 'Khushbhas' appearing in Wilson's glossary of Judicial and Revenue Terms 1855. There 'Khushbhas' is said usually to mean in the Deccan and in other places 'a cultivator holding land at an easy or quit rent'. Khushbhas evidently is a corruption of this word 'Khushbhas'. It is clear from this description that no service is attached to the tenure. The lower appellate Court has thus stated the point:-
Whatever the true meaning of the word may be, it appears reasonably clear from the main bending that the land was never burdened with service.
5. In its opinion the sub-heading 'Bakshis Inam to those who render service' is very probably a later unauthorised addition; we concur in that opinion. The burden of proof is on the appellant to show that the land is inalienable. The appellant has failed to discharge that burden. The appeal, in our opinion, should be dismissed with costs.
6. I would only add a few words. Assuming that originally this land was service land, to the extent that the holder had to render certain service to the Inamdar, and that accordingly under the ordinary rule of lands assigned for service to State, they might originally have been inalienable, still the use of the word 'khushbhas,' as explained by my learned brother, points to the fact that any such service was subsequently commuted for a quit rent. Accordingly, as laid down in the Privy Council case of Rajah Mahendra Singh v. Jokha Singh (1873) 19 W.R. 211, p.c. (which relates to a similar case where service had been commuted for quit rent) that fact alters the tenure from service to rent, as long as the donee's descendants continue to pay rent. This case is referred to by this Court in Brendon v. Sundrabai (1913) 16 Bom. L.R. 164, p.c. and the view that this Court adopted in that case about the alienable nature of the land there in suit was approved by the Privy Council in Sunderabai v. Collector of Belgawm (1918) 21 Bom. L.R. 1148 p.c.