1. It is defendants appeal in a suit for ejectment by the respondent-landlord. The disputed lands had been divided into two different schedules 'Ka' and 'Kha. 'Ka' schedule, lands were recorded in the revisional settlement survey as patadoraghena. In the column for rent, Rs. 4-7-11 pies were stated to be the rent, but down below IB as. 11 pies were indicated to be the ghenanjama. The selfsame holding came to be recorded in what is known as current, settlement record of rights as occupancy holding of defendant 1 and widow of his brother, deceased Ghana Ear. The rent payable in respect of this holding was shown at Rs. 4-8-0 substantially the same as the rent shown in the. rentcolumn of the revisional survey. The local case in the current settlement was shown as 2 as. 3 pies. The area of this holding is 3 acres and 66 decimals Schedule 'Kha' land has been recorded in both the settlements as 'madhyasa-twadhikari' (tenure). In the revisional survey, there were the additional words 'patadoraghenan under the column 'status.' In the current settlement, the latter words had been completely given up. In the revisional survey, there was entry of rent under the column for rent along with that of one Chintamoni Panda. In the current settlement, the status is the same as 'madhyasatwadhikari' and with regard to 'jama' it is stated 'istama-rarichirasthaijama. The defendants-appellanta resisted the suit on the ground that they were never service-tenure-holders. They had right of tenancy in the lands and as a matter of fact they had never performed any services. The plaintiff, however, should contend that they were all the while service-tenure-holders and the current settlement entry to the contrary is wrong,
2. Both the Courts below have decreed the plaintiff's suit. Hence this second appeal.
3. The learned Courts below have substantially come to the conclusion that the current, settlement entry must stand rebutted by the entry in the preceding survey, namely, revisional. The mode of reasoning, employed by them, is that both the settlement entries are to-be presumed to be correct at the time when they were finally published. In that view, they maintained that in order to support the correctness of-the current settlement entry which differed from that of the revisional settlement, the party-relying on it must prove that there had occurred some alterations since after revisional settlement. The learned Subordinate Judge has mad& a reference to a large number of decisions not a. single one of which had to deal with Section 117, Orissa Tenancy Act, in support of the view that, they have taken. The mere reading of Section 117, Orissa Tenancy Act, would afford a smashing reply to such a contention. According to this section, the latest settlement entry will have the statutory, presumption of correctness until the contrary is established or until it is shown to be incorrect. With regard to the previous survey entries, the section says that they shall be pieces of evidence of the facts as they existed at the time. Reading these two parts of the section together, it means that the previous survey entry is no evidence of the state of things that existed at the time of the later entry, and further that the party challenging the correctness of the latest entry will have to establish that it is incorrect. The section does not mean to provide that the previous settlement entry shall be taken to be the conclusive evidence of the state of things then existing. Notwithstanding, the Courts below have said or at any rate have acted under the impression that the revisional survey entry in the present case shall be taken to be an established fact and if anybody wants to rely upon subsequent settlement entry or upon any other evidence connoting with the revisional settlement entry he will have to establish the correctness of the same. This I should say is to fly in the face of the statute. Besides, the theory that the party relying on a later settlement entry will have to show that the change indicated by such entry so far as it differs from. the earlier entry had taken place between the dates of the two settlements entries has long been exploded.-My learned brother and myself the other day decided a case being Second Appeal No. 178/45 in which we have dealt with the fallacy of this theory at a great length and while doing so we have referred to the Pull Bench decision of the Patna High Court. Under the circumstances, I do not propose to reiterate the self-same reasonings over again.
4. There seems to be some wrong notion with regard to the meaning of the word 'jaigir.' If that word, in relation to its legal implications, is properly understood, very many litigations will seldom arise. Mr. Mohanty in course of his argument conceded that 'the jaigir' can be of two kinds; (i) one in which the lands have been granted in lieu of services with the condition that on cessation or non-rendition of services by the servant or necessity for such services no longer existing, the lands shall revert to the grantor; and (ii) the second class is one where the service, tenure-holder has his right of tenancy either superior or inferior in the lands but in consideration of his rendering certain services either the whole or a part of the rent is remitted. He could not point out in vernacular if there is any other term or terms by which these two kinds of service lands may be appropriately described for the purpose of discrimination. The services rendered in lieu of rent is nothing but rent. Rent is defined in the Orissa Tenancy Act in Section 3(16) as whatever is lawfully payable or deliverable to the landlord on account of the use or occupation of the land held by the tenant;, and 'tenant' has been defined to mean a person who holds land under another person, and is, but for a special contract would be, liable to pay rent for that land to that person. In the latter class of jaigir lands, but for the special contract; of service, the holder is liable to pay rent. Therefore, though for want of any other defining; word, he may be described as jaigirdar, he may in fact be a tenant who on account of a special contract between himself and the landlord has been rendering services but in default of such. service would be liable to pay rent for that land to his landlord within the meaning of Section 3 Clause (23), Orissa Tenancy Act. Keeping this in mind, if you, read the revisional settlement entries, they do not at all come in conflict with the entries in the current settlement records. The revisional settlement records do indicate definitely that the defendants' ancestors were paying rent and were liable to pay higher rent but on account of a special contracts which must be implicit in. proper reading of the entry itself, were to pay much lower rent, the rest being remitted on, account of certain services. If any change might, have occurred since after the revisional survey, it must have been, as it appears from the later survey entry that this special condition for suspension of a part of the land must have ceased to exist. The current settlement entry shows that the entire rent with local cess was payable. In this connexion all the rent receipts filed by the'defendants which were subsequent to the I, current settlement survey should be taken into consideration. The learned lower appellate Court in ruling out these documents from consideration' with the observation that they are irrelevant is wholly in error. These documents show not only that since then the lands had been assessed at full rent which was being realised but also the so-called jaigirdars were being' described as 'Praja' (tenants). Here I should refer to the observation of Mr. Dalziel in his settlement report of the current settlement quoted in the judgment of the lower appellate Court. These observations have not been properly appreciated' by that learned Court, They are to the effect: that the proprietor was very keen and careful in getting 'the jaigirdars'' recorded as such. The tenants were rather shy and seldom came forward to oppose. The department made thorough enquiries and recorded such subjects as had status of tenants as such. In this view, the current settlement entry cannot be lightly brushed aside as it has been done in the Courts below.
5. These cases of 'Jagir' I notice seldom' receive proper attention in the Courts below. They should remember that it is a question of grant. Whether the grant is of land or of revenue or rent, as the case may be, is the hard core of the reasoning on which the decision has to be based. If it is a case of lost grant, as Mr. Mohanty wants to put it, then due inference should be made from the long course of conduct between the parties and various other circum-stances circumscribing it. The circumstances in this particulur case are that the lands had been handed down from generation to generation. In the settlement entries, rent payable and rent to be paid have also been noted. As between co-tenants shares have been specified. These are circumstances which are more in consonance with their having some interest in the land than that they were mere service-holders. Add to this, the nature of the service that is required of them. The service is that they should give some Thakur some silken threads on ceremonial occasions. The value of this service has to be compared with the extent of the grant, in other words, with the return for it. In cases where the grant is much in excess of the return for the services it would be more probable to think that it was not a resumable service land but was some interest in the land burdened with services which being omitted the liability to rent arises There is another misleading feature being equivocal in its nature which leads to erroneous decisions. In every class of service tenure, the right of resumption is in the grantor or in the proprietor but very seldom the meaning of the word is understood in the Courts below. In the place of quit rent if a holding is assessed to full rent on account of cessation of services that also is called resumption. To get back the ' lands also means resumption.
6. In fact the question decided is a question of fact. The error committed in the findings by the Courts below was due to their misconception as to the law that governs the law of relationship of so-called Jaigirdar and the proprietor or [grantor, as the case may be. In my view, both the Courts below have erred in giving the plain-tiff a decree. In my judgment the plaintiff has failed to rebut the presumption of the latest settlement entry and has failed to establish that the grant was such that he could re-enter into lands to the exclusion of the defendants on the mere incident that they decline to render services or that services were not necessary. It is quite open to the plaintiff to reassess the rents if he considers that they are below what fairly rents for the holdings should be. I have, however, no doubt that he is not entitled to eject.
7. In the result, the appeal is allowed and the suit dismissed with costs throughout.
8. I am of the same opinion. It appears to me that the word 'Jaigir' has been loosely used and its precise meaning has sometimes been overlooked. 'Jaigir' etymologically means 'Jai' a place and 'gir' holding and implies a tenure created by Mohammedan Government in favour of its servants whereby public revenue was assigned in lieu of services. It may be an assignment of revenue alone or it may comprise land also. But the mere use of the word 'Jaigir' in the absence of other evidence does not connote that Jaigirdar was granted the land which constituted the Jaigir. In this case more than once it has come to my notice that a landlord sues for ejectment of Jaigir-lands and rests content with mere production of an earlier settlement entry wherein either the land is described as Jaigir or the holder is described as Jaigirdar. On the basis of such an entry alone, claim is made to eject a holder on the presumption that the word 'Jaigir' itself implies a grant of lands. This is wholly misconceived. In the present case, even if I were to accept the argument of the earned Counsel on behalf of the landlord, I find no difficulty in agreeing with the conclusion arrived at by my Lord to set aside the decision of the Courts below. Even if the current settlement entries were to be ignored and had the revisional settlement entries stood alone, I would find extreme difficulty to grant a decree to the plain, tiff because there is no evidence other than the entry in the revisional 'settlement papers. The revisional settlement entry shows that against the status of the ryots, jaigir is entered and the quit rent is also entered It may be conceded having regard to the nature of the services that the landlord is unquestionably entitled to resume the grant either because he has dispensed with the services or because the grantee is not inclined to continue performance of the services. The right to resume being conceded what follows The landlord can resume nothing more than what he granted. If he fails to prove that what he granted was the land itself he could only be entitled to resume the quit rent, in other words, he will be entitled to the full assessment of the rent. In this view of the matter, I am of the opinion that the plaintiff has failed to prove that he granted the land to the defendants at the inception of the tenure and is, therefore, entitled to take it back. Mr. Mohanty's argument is that because the grant emanated from landlord, it must be presumed to be of the land. There is no such presumption in fact or law that I know of. Every case should be decided on its own merits and there can be no presumption of law or reasonable inference from the mere fact that the grantor was the landlord and the grantee a tenant of his estate and that the grant as described was a jaigir, I, therefore, agree with the order proposed that the suit be dismissed with costs throughout.