1. In this case the plaintiff sued to recover possession of certain lands. It has now been established as a fact in the case that the lands belonged to the Deshgat Watan of the plaintiff's family and were granted to the defendant's family for service, and it has further been found by the Court of first appeal that, if I understand the judgment aright, this grant must, in all probability, have been made sometime subsequent to the year 1853. The first Court came to the conclusion that the plaintiff, the Inamdar, had no right to resume the lands in the circumstances appearing in this case and it rejected the claim with costs. On appeal, the District Judge came to the conclusion that the plaintiff had the right to dispense with the services and to resume the lands.
2. The case has been fully argued. The facts, such as they are, have been found by the Court of first appeal and we have to deal with these facts as the basis of an inference. But, first of all, I will deal with a question which has been a good deal argued in the case and it is this. It is said that where, as here, there is a grant of land for services and where those services are, as here, personal services, then the grantor has, under, what may be called, the common law of the country, the right to dispense with the services and resume the lands. We have no authority to this effect in any Bombay case to which we have been referred, but, as to the law in Bengal, we have the case of Radha Pershad Singh v. Budhu Dashad I.L.R. (1895) 22 Cal. 938 and possibly the law is the same also in Madras. But whilst it appears that in Bengal the distinction between a grant for services of a public nature and one for services, private or personal, to the grantor, is well understood; and though in the case of these private or personal services there is in Bengal presumably a right to dispense with the services and resume the land, it does not follow that it is so in Bombay. In our Presidency the trend of decisions, and what I may describe as the tone of thought in this Court, 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 Zemindar 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. The tendency is to require that it should be an inference from facts proved in the case and not a mere presumption arising out of the circumstance that there is a grant and that the grant is for personal services. Moreover, the judgment in the Calcutta case itself shows that even there the Judges considered very carefully the circumstances of that particular case and that the presumption which they mentioned was used not as a conclusive way of deciding the case but rather as an aid to them in dealing with the circumstances which were proved. 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. 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. That is the principle which, I think, ought to be applied here. This is the view which the District Judge took, as I understand his judgment, and very properly took. But where he went wrong, and I think he did go wrong, was in coming to the conclusion that the proved circumstances do justify the inference that there is a right to resume.
3. In dealing with the proved circumstances-and they are very clearly set out in the District Judge's judgment-we have to remember that there are two alternative theories. The first is the theory of the plaintiff which, put in common every day language, is this that the grantor in giving the lands to the grantee said : 'You may hold these lands so long as I require service from you.' The other theory-that which is set up by the defendant grantee-is this that what the grantor said was 'these lands are yours, but so long as I require them of you, you must render me these services.' We have to decide, or rather the District Judge had to decide, whether the proved circumstances did definitely favour one theory rather than the other. The circumstances are that there was a grant for service, but in all probability the grant was made subsequent to 1853. There is no written record of the grant; there is apparently no entry anywhere in the village books which evidences it; the lands have been held continuously since the grant by the grantee or his successors; services of a purely personal, indeed of a domestic, nature have been rendered. Those, I think, are all the circumstances which have been proved. What the Judge asked himself was this : 'do they indicate a grant burdened with services or a mere grant in lieu of wages.' Even taking that as the question rather than the one which I myself have stated, I should say that the proved circumstances do not in any way whatever suggest that it was a grant in lieu of wages rather than a grant burdened with services. And where that is the state of things, where the circumstances do not, in any way in any perceptible degree, incline to one theory rather than the other, then, I say that there is no evidence of either theory. This is a case, therefore, which in my judgment the District Judge has decided on no evidence. That being so, as a matter of law, we are bound to set aside his decision. It comes to this, therefore. We know that there was a grant for service and we know now in the view of the law which I have stated that the plaintiff has not a right to resume these lands merely because he chooses to dispense with the services.
4. There then remains the question : Has the defendant in fact refused to render service. On this point there is no finding by the District Judge, for he deemed it unnecessary to find on it. Therefore, under the law as it now stands, because we think it was incumbent on the District Judge to find on this issue, it is for us to look into the evidence and to Come to a finding on it for ourselves. We have looked into the evidence and we are satisfied that it cannot be said that it is proved that the defendant in fact refused to render service.
5. Therefore the plaintiff has failed to make out any just or legal ground for ejecting the defendant from these lands. Consequently, the decree of the Court of first appeal must be reversed and that of the Court of first instance restored.
6. The appellant here should have her costs in the Court of first appeal and in this Court.
7. I concur.