Harilal Kania, Kt., Ag. C.J.
1. These are three second appeals covered by one judgment of the District Judge at Ahmedabad. They arise out of three separate suits filed by the same plaintiffs, but against different defendants. The common question covered by the litigation was whether the plaintiffs, who were the wantias, were entitled to resume the lands from the defendants. The trial Court, after considering the evidence, both oral and documentary, held that the plaintiffs' contentions were not proved, and dismissed the suits. On appeal, the learned District Judge of Ahmedabad was of opinion that the oral evidence was not material. He considered the documentary evidence only for the purpose of determining whether the plaintiffs had established their contentions. In his view, the plaintiffs had succeeded in doing so. He, therefore, allowed the appeals and passed decrees in favour of. the plaintiffs. The defendants have filed these second appeals.
2. The material facts are these: The plaintiffs claimed that they were the wantias of the village Savlana in Viramgam Taluka and were the absolute owners of the fields and houses in the village along with defendant No, 5, who was stated to be a co-owner with them. These parties are described as jhalas. It was alleged that defendants Nos. 1 to 4 were in possession of the fields and houses as jivaidar servants and chakars of the plaintiff and defendant No. 5. They stated that the fields were granted I granted to the defendants on condition of rendering service to the wanta-wallas, and as they, defendants, were rendering services, they were permitted to enjoy the produce of the said lands. The plaintiffs contend that in case the defendants refused to do so, or the plaintiffs desired not to receive any further services, the plaintiffs could resume possession of those properties. It was stated in the plaint that the defendants had wrongfully refused to render services and set up title as absolute owners of the properties. In paragraph 8 of the plaint, it was stated that plaintiffs and defendant No. 5, and H. H. Shree Ghanshamsinghjee Saheb Bahadur of Dhrangadhra State were equal sharers in the said lands and that the Dhrangadhra Durbar had got as much interest in the said properties as that of the plaintiffs. Just as the defendants had been rendering services to the plaintiffs, similarly they were bound to render such services to the Dhrangadhra State and had been doing so. The plaintiffs referred to a document passed on April 15, 1913, in favour of the Dhrangadhra State. The plaintiffs claimed that they had filed the suit without joining the Dhrangadhra Durbar as a party, because the sanad of the wanta of Savlana was granted to them alone and in the Government records the lands stood in their name. The prayers were for possession of the lands mentioned in the plaint. The defendants' contention was that these lands were given to them for services already rendered several decades ago and they were the owners of the lands. The plaintiffs had no right to demand services. The defendants alleged that the reference to Dhrangadhra state was irrelevant as the Dhrangadhra State had no interest or right in the lands mentioned in the plaint. The parties went to a hearing with the result I have mentioned above.
3. As these are second appeals, we are bound by the findings of fact of the lower appellate Court. In the present case, however, there is no difficulty on that point, because the learned District Judge has expressly stated that for his conclusion he has not relied on any oral evidence. At the end of paragraph 24 of his judgment, he has stated as follows:-.But in my opinion this matter must be decided not on oral evidence but on the documentary evidence in the case...
In our opinion, he was right because, as summarised by him, only one witness had mentioned relevant facts on behalf of the plaintiffs. The District Judge had considered the evidence of four witnesses called on behalf of the defendants and found that the case must be decided on documentary evidence. The conclusion drawn by the learned District Judge is thus on a perusal of the documents and the proper inference to be drawn from the contents thereof. The same is a question of law, and we have, therefore, to consider whether the conclusion is correct.
4. The law on the point is clear. In respect of lands held under such circumstances, the Judicial Committee of the Privy Council had occasion to consider the point in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438. Their Lordships stated as follows (headnote):--
Where the sannads created a service tenure and the lands were granted pro servitis im-pensis etimpendendis, ie., 'for the services, partly as a reward for past, and partly as an inducement for future, they grantees, though liable to forfeit the lands, if they wilfully failed in the performance of the duties imposed by the sannads, were not liable to have such lands resumed, on the ground that there was no longer occasion for the performance of the particular services required.
5. In Lakhamgavda v. Keshav Annaji I.L.R. (1901) Bom. 305: S.C. 6 Bom. L.R. 364, the Court laid down the following propositions in respect of lands held under such circumstances (headnote)i:-
The combination of an interest in land and an obligation as to service may fall under three heads viz.: (1) there may be a grant of land burdened with service, (2) there may be a grant in consideration of past and future service, and (3) there may be the grant of an office the services attached to which are remunerated by an interest in land. In either of the first two classes of grants it may be made a condition that the interest in the land should cease when the services are no longer required, but in the absence of a provision to that effect lands held under those grants are not resumable at will.
' Where a plaintiff Inamdar asserts that he has a right to resume, he has to establish that the combination is such as permits of resumption and where there has been long and undisturbed possession enjoyed by the defendant and his predecessors, it will require strong evidence on plaintiff's part to make out his case.
6. The matter came again to be considered by the Privy Council in Veticata Narastmha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur I.L.R. (1905) Mad. 52: 8 Bom. L.R. 1. The head-note correctly sets out the material conclusion of their Lordships. It runs as follows:-
Where a grant of land is subject to a burden of service, and is not a mere grant in lieu of wages, the grantor has no right to put an end to the tenure whether the services are performed or not, as long as the grantees are willing and able to perform the services.
At p. 57, their Lordships observed as follows:-
Without altogether adopting the further reasons adduced by the learned Judges in support of their view, their Lordships are of opinion that the considerations above stated are sufficient to establish that the grant in this case was a grant subject to a burden of service, -and was not a mere grant in lieu of wages. This disposes of the case, for it is well settled that where lands are held upon such a grant, ' as long as the holders of those grants are willing and able to perform the services, the zamindar has no right to put an end to the tenure whether; the services are required or not.
7. In Yellava Sakreppa v. Bhimappa Gireppa I.L.R. (1914) Bom. 68: 17 Bom. L.R. 128 it was held that in the Bombay Presidency where deshgat vatan lands are granted for the performance of personal services, no presumption can be made that the grantor has the option to determine the services and to resume the lands. If a grantor takes up that position and claims that as his fight, he must show either that the terms of the grant give him that right or if the terms of the grant are unknown, that the proved circumstances justify an inference that lie has that right. Mr. Justice Heaton observed as follows (p. 70):-
In our Presidency the trend of decisions and what I may describe as the tone of thought in this Court, have 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 zatnindar or whatever he may be termed. I think that the Bombay cases do undoubtedly disclose a reluctance to presume a right to resume lands where resumption involves ejectment...
8. A little later, the same learned Judge observed as follows:-
For the reasons that I have given, 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 to resume the land.
9. In Chandrappa v. Bhima bin Dassappa I.L.R. (1918) Bom. 37:: 20 Bom. L.R. 779 Mr. Justice Beaman, in delivering the judgment, considered that heads (1) and (2) formulated in Lakhamgavda's case really fell under one head and the question in each case was, whether the land was granted, with the obligation to render service or whether there was the creation of an office and the lands were given as remuneration for performing the services attached to the office.
10. The last relevant decision which deserves notice in the present case is Lakhamgouda v. Baswantrao : (1931)33BOMLR974 In that case the Judicial Committee of the Privy Council held that in the case of a grant of an office to be remunerated by the use of land, the land will prima facie be resumable. On the other hand, in the case of a grant of land burdened, with service prima facie it will not be resumable; but the terms of the grant or the circumstances in which it was made may establish a condition of the grant that it was resumable. The onus is on the grantor to make out such a condition.
11. The learned District Judge has noticed all these relevant cases. At the end of paragraph 6 of his judgment he formulated the following proposition of law:-. .On a consideration of these authorities it seems to me to be clear that where there is a grant of an office, the services of which are remunerated by grant of land, the lands are resumable at the option of the grantor; but where there is a grant of land burdened with service, the lands can be resumed (i) if there is a default on the part of the grantee in the performance of service or (ii) if there is a condition express, or to be inferred from the circumstances c the case, authorising the grantor to resume the same at will.
I must point out for clarity that the condition which is supposed to exist must be a condition found in the grant, either on looking at the grant or by reason of the user. But it has to be a condition of the original grant,
12. On a consideration of the documents, both the lower Courts came to the conclusion that in the present case it cannot be held that the original grantors created an office,, which was remunerated by the income of these lands. It was pointed out that there was no creation of a recognised office, such as the office of a Mukhi, Patel, Desai, Karkun, or Killedar. We agree with the conclusion of both the lower Courts that, in the present case, there was no creation of office which was remunerated by the income of the lands in suits. The plaintiffs have, therefore, to establish that the lands were granted by their predecessors-in-title to the predecessors-in-title of the defendants, burdened with services, and with a condition that if the services were not rendered, the lands were liable to be resumed. In the present case, we are not concerned with the question whether the lands were resumable at will, because a demand was made on the defendants to perform the services. In the notice (exhibit 48) the plaintiffs complained that the defendants were very irregular in their service and had shown hostility in performing their duties. For that reason the plaintiffs desired to' resume the lands. We do not think it is also necessary to consider whether the defendants had established their title to the lands, as claimed in their written statement. The plaintiffs having brought the suits, it is their duty to establish their title first before the defendants could be called upon to enter on their defence. It is common ground that these lands were originally granted to the defendants' predecessors 200 or 300 years ago, and have remained in possession of the defendants and their ancestors for that time. In the course of evidence it appears to be stated that the Dhrangadhra Durbar came to have an interest in half the share of the wanta as a mortgagee or assignee about 125 years ago. That is noted by the learned District Judge in para. 11 of his judgment. It must, however, be noted that plaintiff No. 2, in giving evidence, stated as follows:-
There are seventy Parajas in our wanta. We have passed a kachha document in favour of Dhrangadhra State. I have seen this document. I have got a copy of this document. The original is with the State. Ten Prajas of Brahmins have not been mentioned in this document. The ten Darajas of our charkhed have also not been mentioned in this document. The suit lands which are in possession of the defendants have also not been included in this document.
It is, therefore, clear that in order to establish the plaintiffs' right to resume the lands in suit, they have got to establish that these lands were burdened with the obligation to render services, and there was a condition attached to the grant that if the services were not rendered, the lands were liable to be resumed. This point is material to be considered, because considerable evidence of the acts and omissions in respect of lands under the control of the Dhrangadhra Durbar has been adduced. Principally, it is on that evidence that the learned District Judge came to his conclusion in favour of the plaintiffs. I shall consider that evidence presently.
13. Starting on the footing that the plaintiffs have to establish their title and right to resume the lands the best evidence would be of the plaintiffs' and their predecessors' acts, and the acts of the defendants and their predecessors, in respect of the lands in suit, or, in any event, in respect of the lands in the possession of (he plaintiffs. Evidence in respect of lands under the control of the Dhrangadhra Durbar is not direct evidence regarding the lands in suit. The plaintiffs themselves have not given evidence to show that the defendants or their predecessors were bound to render any service, or, that the plaintiffs had a right to resume possession of the lands. They have also not produced any document to support either of these two aspects of the matter. The result is that if the evidence led in connection with lands held by the Dhrangadhra Durbar is excluded, neither the oral, nor documentary evidence of the plaintiffs, can support the judgment of the lower appellate Court. The question, therefore, is whether the documents produced by witnesses of the Dhrangadhra Durbar support the plaintiffs' claim in respect of the lands in suit, when, as I have pointed out, the Dhrangadhra Durbar has nothing to do with the lands in suit. The learned District Judge has considered this evidence in different paragraphs of his judgment and for convenience I shall deal with the same in that order.
14. In paragraph 11 of his judgment he dealt With a copy of a notice which was prepared under the direction of the Dhrangadhra State authorities and which was to be served on the defendants' predecessors. That was in 1912, The record contains no document before that year suggesting that there was any right to claim service from the defendants or their predecessors-in-title. The evidence further shows that although this notice was prepared, it was not accepted by the addressees. The result is that the notice remained as a document only in the file of the Dhrangadhra State. The contents of that notice are not brought home to the defendants and the statements contained, therein cannot therefore bind the defendants. The learned District Judge has thought that although the notice was not served and accepted by the defendants, this notice showed that they were bound to render service, and if they refused to render service, they were liable to have their lands resumed. We are unable to agree with that conclusion of the lower appellate Court. If a document is not served on the other side and the contents thereof are not brought to the opponent's notice, merely because the claimant wrote something in his handwriting, which, supported his own right or claim, and kept a copy in his file, that cannot in any way prejudice or affect the defendants' rights. We are unable to agree with the conclusion of the learned District Judge as to the effect of the copy of this notice being, found in the file of the Dhrangadhra Durbar.
15. The next document in order of time is a statement signed by Vaghela Jijibhai and Vaghela Bheravsang. The signature of Prabhatsang Sardarji is made by Bheravsang Tejabhai on behalf of Prabhatsang. In that document it is stated that the wanta lands of Savlana were mortgaged with the Dhrangadhra Durbar and out of these lands about 15 Parajaa were in the possession of the signatories from the beginning, in such a way that they used to do the work of Savlana wanta and used to keep the produce thereof. It further recites that as disputes may not arise in future with regard to the work to be done by them, a compromise agreement had been arrived at between the two parties. Under the terms of that compromise the signatories were to do certain work, e.g. of watching the crops, protection of the wanta and its rights, watching the threshing floors, to take Darbari cash and crops if so ordered to do from Savlana to Dhrangadhra and to carry messages. . After this document was signed, a declaration was made before the Revenue Commissioner of the Dhrangadhra Durbar on the same date (April 5, 191&). That document is also signed in the same way as the other one. In that document also there are recitals of the same nature as mentioned above. Towards the end of the first paragraph it is stated: ' As we have passed a document with regard to the work to be done by us as stated in this application, in anticipation of the permission of the Huzur Office, you will be pleased to allow us to remove cotton-pods.' At the end of that document it is stated: ' As per above agreement, we agree to pass a document on a British stamp-paper and according to the rules and regulations of the Zilla, if we are ordered to do so.' The learned District Judge very strongly relied on these two documents for his conclusion in favour of the plaintiffs. The pedigree of the family which is found in the judgment of the trial Court shows that Bheravsang was the father of Nanubha, defendant No. 2 in suit No. 19 of 1935. That pedigree shows that there were over half a dozen other members of the family, who, though related, could not consider Bheravsang as manager of the joint family. Prabhatsang, on whose behalf Bheravsang put his signature is defendant No. 1 in suit No. 20 of 1935. The pedigree also shows that there were numerous other members of the family, in respect of whom it could not be contended that Prabhatsang was the manager. In the same way Jijibhai, the third signatory, is the grandfather of defendants Nos. 1 and 2 in suit No. 21 of 1935. Other members of his family were also alive, and there is nothing to show that Jijibhai was the manager of the joint family at the time of this writing. The contents of these documents clearly show that the cotton pods of the signatories were kept in detention by the Revenue Commissioner of the Dhrangadhra State and permission was asked for their removal as the document was signed. Without going into the question of coercion, this fact 'is very significant. The evidence does not show what jurisdiction or authority the Dhrangadhra State had in Savlana village. The village is included in British India. We do not know under what authority the cotton pods of the signatories were detained by or under the order of the Revenue Commissioner of the Dhrangadhra State. These documents, to put at their highest, could amount only to admissions of the nature of the tenure by the signatories. As 1 have pointed out, in fact, there were two signatories only. Prabhatsang, who is defendant No. 1 in suit No. 20 of 1935, was examined as a witness before the trial Court, and he was not asked whether he had authorised Bheravsang to sign on his behalf. He was asked generally whether Bheravsang and Jijibhai would let him down, and he frankly stated that they would not. That, however, does not make the admissions contained in these documents binding on Prabhatsang. The other two signatories are dead. We have therefore nothing on record to show the circumstances under which these documents were signed by the signatories. It is clear that the documents were written out by or under the direction of the Dhrangadhra State officer and these signatories, whose cotton pods had been in fact (rightly or wrongly) detained, signed them. It is difficult to give full weight to admissions alleged to b& found in documents which came into existence under such circumstances. But apart from that, it is clear that these documents are not helpful to the plaintiffs to the extent contended by them. There is nothing on record to show that the signatories were managers of their respective joint families. There is nothing to show that they were authorised agents or representatives of the other members of the joint families. To put at its highest, the admissions contained in these two documents, therefore, could only bind the signatories and no one else. If so, they cannot prove that the other defendants admitted the nature of the tenure of these lands as contended by the plaintiffs and suggested to be spelt out by the admissions found in these documents. The learned District Judge appears to have lost sight of this aspect of the admissions and their infirmity. In our opinion, these documents cannot be considered as binding admissions on the defendants. As the nature of the tenure is one and indivisible, they cannot help the plaintiffs in coming to the conclusion that these lands were of the tenure contended by them. Besides, this last document was attempted to be registered, and the signatories were repeatedly called to Dhrangadhra for the purpose, but in spite of repeated attempts nothing was done. The document was not registered.
16. The next document relied upon is summarised in para. 15 of the judgment of the learned District Judge. It is a report made by the Havaldar in 1917, and endorsements made thereon by the Dhrangadhra State officers. It is relied upon as an instance where the right to enforce service was asserted and acquiesced in. The three Vaghelas Jijibhai, Bheravsang and Prabhatsang signed the endorsement agreeing to sleep on the threshing floor to protect the crop which was being kept there. As I have already pointed out to put at its highest, this endorsement may amount to an admission of the signatories, and not of all the members of the family and cannot bind the defendants as a body. It may also be noticed that all these documents refer to a compromise arrived at between the parties after the defendants' predecessors had disputed their liability to render service. It is not admitted as a condition of the grant at its initial stage. This is material because the Court has to determine whether when the lands were granted there was a condition entitling the plaintiffs to resume possession if services were refused.
17. The next document is considered in para. 16 of the judgment. It is an application made on January 1, 1918, by two ladies to resume possession of certain lands. The two ladies stated that the lands were given to the Vaghelas, when the two ladies' predecessors-in-title were in affluent circumstances. As the ladies had become poor, they requested that the lands be taken back from the Vaghelas and given to them so that they might secure their maintenance from the produce. We fail to see how this document can establish the plaintiffs' title against the defendants. It does not appear to have been brought to the notice of the defendants. It does not appear that on this application steps were taken to resume possession. The record does not show what was the result of the application. In our opinion, therefore, this application does not support the plaintiffs' claim.
18. The next set of documents are considered in para. 17 of the judgment and consists of what had passed between the revenue authorities of the Dhrangadhra State. It is pointed out by the different revenue authorities of the Dhrangadhra State that the Vaghelas were not performing service and therefore something should be done. Although they were informed many times to appear before the vahivatdar they had failed to go on one pretext or another. Towards the end of their inquiry it is stated: 'In case the crops of Vaghelas are to be stopped, they would not stop them on being merely asked to do so, The crops would be stopped only if there are sufficient men.' It indicates that the Vaghelas had resisted the claim of the Dhrangadhra Revenue .authorities to enforce service and the authorities found themselves helpless, unless they resorted to force. The file goes on further to state that under the circumstances the pleaders should be consulted as to what should be done. Nothing came out of it, and the file ends with that endorsement. We fail to see how these statements, made in communications exchanged between the different revenue officers of the Dhrangadhra State, can affect the title of the defendants. The defendants were not parties to those communications and none of them is signed by them. We, therefore, think that the learned District Judge was in error in relying on the documents and in holding that they supported the plaintiffs' claim as formulated in the plaint.
19. In para. 18 of his judgment the learned District Judge has considered certain receipts for bhatta paid to the Vaghelas when they took grain to Dhrangadhra on certain dates. We must, however, point out that this is very slender evidence. The contents of the receipts do not show under what circumstances the grain was taken to Dhrangadhra. There is nothing to show on the face of the receipts that they were taken in performance of the services which the Dhrangadhra State was entitled to claim.
20. In para. 19 of his judgment, the learned District Judge relied on an order addressed to the Havaldar by the vahivatdar of Nethan, The learned District Judge had recognised that the defendants were not parties to it. But he relied on this because in the order the Vaghelas were described as Pasayta Chakariat. We agree with the learned District Judge that by itself this order cannot be considered as evidence against the defendants at all. We are, however, unable to agree with his conclusion that this document helps the plaintiffs. If interested parties described the defendants as Pasayta Chakariat, the same should not be considered binding on the defendants and the title of the defendants cannot be adversely affected because of their description in this order. The State authorities, by this time, were keen on establishing their right or title, and statements made by them in their own documents cannot affect the right of the defendants. They cannot be considered admissions of the defendants and as statements made by the Dhrangadhra authorities they cannot help the plaintiffs, because those statements were admittedly in the interests of the Dhrangadhra authorities themselves.
21. That, in substance, is the whole documentary evidence found from the Dhrangadhra Durbar files on which the learned District Judge has relied. That documentary evidence falls into two parts. It consists either of documents of the State itself to which the defendants or their predecessors were not parties. They were written behind the back of the defendants and their predecessors. It is obvious that statements found in such documents about the obligation of defendants to render service cannot be evidence against the defendants. The rest of the documents are urged as admissions. As we have pointed out, the alleged admissions are made by two persons and they cannot bind the defendants as the signatories were not, in law, authorised to make any admission on behalf of the defendants. The documents relied upon can only be 'put forth as instances in which the right to claim service was put forth and accepted or admitted. As we have pointed out, the evidence is of a nature which does not support this contention.
22. The plaintiffs also relied on the sanad which was issued to them. That, however, does not materially help the plaintiffs because by itself it is only a decision in respect, of the liability to pay revenue between the plaintiffs and the Government. It does not decide the title to land, much less the liability of the defendants to render service to the plaintiffs. It was urged that no portion of the land was sold at any time by the defendants or their predecessors. That again is not evidence from which an agreement to render service could be spelt out. In our opinion, the documents relied upon by the plaintiffs do not establish the plaintiffs' claim. They do not relate to the lands in suit. Moreover, we have no evidence of the terms on which the Dhrangadhra Durbar obtained possession of these properties from the Jhalas several years ago. It appears to be arguable that on every transfer by the Jhalas, the Vaghelas are not bound to perform services claimed by the transferees. The proposition which is pressed on us is this: Suppose the Jhalas transferred one acre of land out of this wanta to a different party, and in that way fifty different owners residing in fifty different towns in India acquired the rights as transferees of the Jhalas, would the Vaghelas be bound to render the services claimed in these fifty different towns because the original Jhalas had transferred the land to these fifty different parties In this case it is not necessary to decide the question, and therefore, we express no opinion on the point. We should also point out that in the present case the plaintiffs had formulated in exhibit 52 the nature of services which the defendants had to render under the terms of the grant, That is, on the face of it, a grossly exaggerated list and there is no evidence to support the contention that at any time the condition was to perform the services stated in exhibit 52. The services which as a result of the compromise the three signatories agreed to perform under exhibit 138 are of a far more limited nature. Having regard to our conclusion on the main point, it is not necessary to consider whether it is open to the plaintiffs to rely on proof of certain services rendered to the Dhrangadhra Durbar only to establish their claim to extract services as claimed in exhibit 52 in respect of the lands in suit and contend that the lands were granted to the defendants with the burden of rendering service and on condition that on failure to render the service, the lands were resumable. We think that the appeals should be allowed. The decree of the lower appellate Court is set aside and the decree of the trial Judge in each of the three suits is restored. The respondents will pay the costs of these appeals and the costs of the lower appellate Court.