1. It is contended by the Government Pleader that on the finding that the inams were granted before the settlement, and at the time of the settlement were exempt from the payment of any rent to the Zemindar and held on condition of doing service for him, a presumption arises that the land is lakhiraj within the meaning of Section 4 of Regulation XXV of 1802. This contention is based on Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438, There it was held, at page 457, that the land there in question being held rent free at the date of the settlement could presumably be treated as lakhiraj. But the lands in that case were held under Sanads granted by the Government, and not as here by the Zemindar. In the case before us the findings are that the inams were granted by the Zamindar Narasimha Apparow before the Permanent Settlement as reward or emoluments for private services rendered to him on condition that they should be held so long as the services continued to be rendered. We are unable to see how from these facts any presumption can arise that the land was at the Permanent Settlement exempt from the payment of public revenue. It was pointed out by the Chief Justice in Raja Nilmoney Sing v. The Government (1866) W.R. 121 that 'the Government would not have allowed any portion of their revenue in consideration of private services to be rendered to the Zemindar.' The decision in that case was affirmed by the Privy Council, and the remark I have quoted is quoted also without disapproval in the judgment of that tribunal in another case--Raja Nilmoni Singh v. Bakranath Singh (1882) 9 I.A. l04--and these dicta rather than the observations in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438 would seem to be applicable to the present case. The Courts below have, it seems to me, made a mistake by confounding the public revenue and the Zemindar's income. The District Munsif deals with the question in paragraph 9 of his judgment. The Zemindar at the time of the grant was not proprietor : therefore he could not exempt the land from payment of revenue without the concurrence of the Government. The Government can therefore reimpose full assessment, when it pleases, on land exempted by the Zemindar from payment of public revenue. The fallacy lies in the assumption that because the Zemindar allowed his peons to occupy the land free of money rent in lieu of wages, the land becomes exempt from the payment of public revenue to the Government of the day. There is no evidence that the land in question was not after its grant an inam held as security for the payment of the Government revenue by Narasimha Apparow, and there can, we think, be no presumption that the Government gave up its right merely because Narasimha Apparow wanted to provide a supply of hereditary peons for his own benefit. The District Judge holds that the lands were evidently excluded from the assets because they were held free of money rent to the Zemindar before the Permanent Settlement. He seems to have fallen into the same error, taking ' free of money rent to the Zemindar ' and 'exempt from the payment of the public revenue ' to be synonymous terms. The lands were a source of profit to the Zemindar ; he used them to pay his servants, and it seems to me the burden is on the Government to show that they were lakhiraj at the Permanent Settlement.
2. The question is one of fact with which we cannot deal in second appeal and we must call for fresh findings in the light of these observations and on the evidence on record on the questions: (1) whether the land was lakhiraj land at the date of the Permanent Settlement ;(2) if not whether the plaintiff is entitled to eject the 1st and 2nd defendants-respondents. The findings should be submitted within one month after the reopening of the District Court. Seven days will be allowed for filing objections.