Kumaraswami Sastri, J.
1. This appeal arises out of a suit filed by the trustee to the Vizianagram Estate under a trust deed, dated the 28th October, 1912, to eject the defendants from the properties mentioned in the plaint and to direct payment of past mesne profits amounting to Rs. 1,500 and future mesne profits at Rs. 750 a month till delivery of possession.
2. The case of the plaintiff as set out in the plaint was that the village referred to in the plaint formed part of the mal assets of the Vizianagram Zamindari which is subject to a permanent peishcush, that some time after the Permanent Settlement the revenues, of the suit village were from time to time granted by the former Zamindars of Vizianagram to the ancestors of defendants 1 to 6 as remuneration in lieu of cash allowance for rendering private and personal services to the Zamindar and subject to the payment of kattubadi of Rs. 37-8-0 and without any rights of alienation, that the grant was resumable at the will and pleasure of the grantor or his heirs, that the services for the remuneration whereof the grant was made consisted in the grantee or grantees maintaining a certain number of peons for the purpose of the grantees and their peons escorting the Zamindar in his trips and shooting and hunting expeditions, attending the annual Dasara Durbars at Vizianagram and rendering such other services as may be ordered from time to time which services were all of a purely personal and private nature, that the village was on several occasions resumed and kept under the management of the Zamindar and regranted at the request of the service-holders subject to the same conditions of service as before, that in 1872 the village was last resumed by the late Zamindar and regranted to defendants 1 and 2 and the father of defendants 3 to 6 on the same conditions of service and resumability, etc., as before and they executed a registered agreement, dated the 26th of December, 1873, that defendants 1 to 6 were rendering their services properly whenever called upon to do so till about 3 years before the date of the plaint and since 'then have neglected to render the service, that the defendants have colluded together and brought about some fraudulent mortgages, sales and other documents mala fide and without consideration, that some or all of the defendants 7 to 108 are in possession of the suit village, that the alienations are not valid and binding upon the plaintiff, that the plaintiff has no desire or necessity to continue the services of the defendants or permit them to enjoy the revenues of the village, that notice was given to the defendants on the 28th of December, 1910, terminating their services and calling upon them to vacate and surrender the suit properties, that the defendants have all combined together and failed to do so, and that the defendants have denied the title of the plaintiff setting up an adverse claim in themselves and have forfeited their tenure by reason of the denial and the alienations.
3. Defendants 7 to 69 were impleaded as they belonged to the family of defendants 1 to 6 and were unlawfully in possession of the suit properties and the other defendants were added as they were collusively in possession under defendants 1 to 6.
4. The contesting defendants filed written statements. They pleaded that the suit village and not merely its revenues was ' granted about 200 years prior to the Permanent Settlement to the ancestors of the present holders by the then local Chief of Sringavarapukotta, that it is not true that the grant was made as remuneration in lieu of cash allowance for rendering services private and personal to the Zamindar, that if the suit village was to be regarded as granted on a tenure connected with service, the grant was an absolute grant conferring an hereditary estate on the grantees for past services rendered and burdened with future services, that the grant is not, therefore, resumable at the will and pleasure of the grantor or of his heirs, that the services connected with the tenure of the suit village were not of the nature set out in the plaint, that the services rendered before the grant were of a public nature being help given in keeping the country in a tranquil condition in those days of trouble and disturbance, that the future services expected of the grantee were similar in character if required and if not they were merely nominal services such as attending Dasara, that the village was not on several occasions, as alleged in the plaint, resumed and kept under the management of the Zamindar and regranted at the request of the holders, that the holders have been enjoying the village hereditarily with full power of alienation, that the instrument, dated the 26th December, 1873, referred to in the plaint was executed on account of undue influence and without any consideration for it under a misconception of the rights of the executants and under an erroneous view of the law, that the holders of the village had been rendering certain merely nominal services and that the defendants are still willing to render the usual nominal services. The defendants deny any collusion. They state that the plaintiff has no right to call on them to vacate the properties. They state that they never denied the title of the Zamindar or set up any adverse rights. They state that even assuming that the plaintiff has a right to resume, they are the cultivating ryots of the village and are the owners of the kudivaram and that the plaintiff has at best a right to resume the melwaram only and has no right to eject them. They state that the mesne profits claimed are excessive, that the suit is barred by limitation in the case of the alienees and that the plaintiff is entitled to no relief.
5. The alienees filed written statements denying that the plaintiff has any right against them.
6. The Subordinate Judge dismissed the plaintiff's suit. He held that the evidence adduced by the plaintiff was too meagre to sustain any finding in his favour, that there was no record to show that the assets of the village were included in the mal assets on which peishcush was settled, that there was no record to show that the Vizianagram Zamindar granted the revenue only on land and only after the Permanent Settlement with the Government, that there was no evidence to show the resumptions of the land or revenue and control of the village by the Zamindar before the regrants were made and that the evidence did not support the case of the plaintiff that the grant was only a grant made in lieu of remuneration for services. He says that there is no evidence that the Dasara Durbar was ever held for the past 20 years or that the defendants refused to attend either as huntsmen or as Dasara attendants with their muskets and that the notice terminated the defendants' services without giving them an opportunity to do the services required. He then discusses the evidence oral and documentary and dismisses the plaintiff's suit.
7. An appeal was filed and it came on before Venkatasubba Rao and Srinivasa Aiyangar, JJ. The learned Judges differed in their opinion. Venkatasubba Rao, J., agreed with the Subordinate Judge and held that the plaintiff was not entitled to eject the defendants. Srinivasa Aiyangar, J., took the opposite view. The result was that the judgment of the Subordinate Judge was confirmed under Section 98 of the Civil Procedure Code and the appeal was dismissed with costs.
8. Owing to the difference of opinion this Letters Patent Appeal has been filed.
9. Although in the plaint it was alleged that the grant was made after the Permanent Settlement by the Zamindar of Vizianagram, the claim made in the plaint to eject the defendants and that the village should be put in possession of the plaintiff was abandoned. It is also conceded that the averment in the plaint that the grant was made subsequent to the Permanent Settlement is not true. It was admitted that the grantor was not a member of the present dynasty but was a previous Zamindar who held Vizianagram before the ancestors of the present Zamindar's family acquired it. In fact, we find from Exhibit VII, which is dated the 26th September, 1852, that the grant was made about 100 years prior to it and that it was made by Srimuki Kasipathi Raju. Both the learned Judges agreed that although there is no evidence that the properties claimed were included in the Permanent Settlement as alleged by the plaintiff and although the plaintiff has not produced all the papers regarding the Permanent Settlement it can be inferred from the subsequent conduct of the Zamindar as well as the grantees that the village was included and that the Government did not at any time put forward any claim to the village. The important question on which the learned Judges differed was whether the grant was a grant of land burdened with service or whether the land was granted merely in lieu of wages and so resumable at pleasure.
10. The original grant has not been produced by the plaintiff nor has he filed the papers in connection with the Permanent Settlement which would throw much light on the matter as to services. As a matter of fact the plaintiff started with the, case that the grant was after the Permanent Settlement. The case was obviously not correct and was contradicted by the evidence on record. As that case was given up at the trial in the High Court, it is not necessary to proceed with the matter further than to state that it is impossible to see how the claim for ejectment made in the plaint can be supported in the absence of any proof as to the terms of the grant or the nature of the service at the time the original grant was made.
11. No satisfactory explanation has been given why these important records have not been produced or how it came about that the definite allegations in paragraph 3 (a) of the plaint were made.
12. The leading case on the subject of resumption is Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438. Their Lordships of the Privy Council after observing that it was a very material issue whether in point of fact the lands claimed were on the occasion of the settlement treated as mal assets of the Zamindari in . which case only their Lordships were of opinion that' the question of any resumption would arise proceeded to deal with the question as regards the right of resumption assuming that they were included in the mal assets. After dealing with the various decided cases their Lordships observed:
The conclusion which they would draw from the decided cases, as well as from the reason of the thing, is, that in every case that right to resume must depend in a great measure upon the nature of the particular tenure, or the terms of the particular grant. They agree with the observation of Mr. Justice Jackson, Baboo Koolodeep Narain Singh v. Mahadeo Singh and Ors. (1866) 6 W.R. 199 9 that there is a clear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain lands ' at p. 464.
13. After dealing with the facts, their Lordships conclude as follows:
It emphaticallyslay upon the appellant, who is seeking to dispossess, or to rack-rent, the respondents, who by themselves, or their ancestors, have brought those lands into cultivation, and enjoyed them for so long a period ; who must have been permitted by former Zamindars to continue undisturbed in such enjoyment long after the incursion of wild elephants had become mere matter of tradition, to make out a clear title to resumption'--at p. 466.
14. The documents in question and the facts in the case have been dealt with in great detail both by the Trial Judge and by Venkatasubba Rao and Srinivasa Aiyangar, JJ., in appeal and we think it unnecessary to repeat what was already been said.
15. The following facts emerge as to which there can in our opinion be no possible dispute.
16. The grantees were hillmen and the lands are lands situate in hills. The grant was made about 1752 or earlier long before the present Zamindar acquired the villages. According to Exhibit VII the grant was made in 1752 and there could be no doubt on the evidence that the defendants and their predeces-sors-in-title have been in possession of the lands for over 250 years, and that they have brought the land under cultivation, the lands have been descending from father to son and they have been alienating the lands without question. The documents relating to alienation filed in this case take us back to 1844. On these facts we think the onus is very heavy on the plaintiff to show that the grant was merely a grant in lieu of wages resumable at will and not a grant burdened with service in which case it could not be resumed without at least showing that the services were required to be done and were refused. As we have already said, the grant has not been produced nor have the accounts and proceedings in connection with the Permanent Settlement which might have thrown much light on the terms under which the lands were granted been produced. It is not suggested that they were not available and it seems to us that the plaintiff has utterly failed on the main allegation made in the plaint that the grant was made after the Permanent Settlement or was merely a grant in lieu of wages, for personal services.
17. As regards the services in respect of which the grant was originally made, the Subordinate Judge in dealing with the third issue which related to the persons who made the grant to the defendants observed that it was clear that the Mukhi family made the grant to the Dorais about 200 years ago on the only condition inferrable of rendering military aid and to quell disturbances within or quarrel with a neighbour. He disbelieves the plaintiff's case as to the services. We agree with the Subordinate Judge in thinking that the plaintiff has not proved that the grant was made for the performance of the private and personal services referred to by the plaintiff in the plaint. We are of opinion that the plaintiff has failed to prove that the grant was a grant made to the ancestors of the defendants merely in lieu of remuneration for personal services.
18. A great deal of argument was addressed to us on the presumptions which ought to be raised in cases of grants made for services. We are of opinion that where a Zamindar wants to resume lands granted before the Permanent Settlement and held by the grantees from father to son the onus is always on the plaintiff. We think the observations of their Lordships, of the Privy Council in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438 which we have already referred to, arc clearly to that effect.
19. In Lakhamgavda v. Keshav Annaji I.L.R.(1901) B. 305 Sir Lawrence Jenkins, C.J., states that the combination of an interest in land and an obligation as to service may fall under three heads, vis.: (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; that 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. The learned Chief Justice held that in cases 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 for eviction.
20. We agree with the observations of Venkatasubba Rao, J., in Thiruvenkatacharlu v. Shark Altoo Sahib (1925) 50 M.L.J. 251 that where the question is as to the class to which a specified grant involving service belongs there is no presumption one way or the other.
21. A great deal of reliance has been placed by the Advocate for the appellant on Exhibit A, which was executed by the defendants 1 and 2 and by the father of defendants, 3 to 6 in favour of the then Zamindar on the 26th of December, 1873. It appears, from Exhibit M (1), dated the 4th of July, 1872, that the inhabitants of certain villages belonging to the Zamindar petitioned the Raja stating that the persons referred to therein had mortgaged three-fourths portions of their holdings to certain persons and because of their not being able to earn their living upon the remaining portion were committing acts of trespass and mischief referred to therein and they prayed that the Zamindar would put a stop to this by attaching the villages and warning the holders of the land not to commit any mischief. Upon this, the Amin sent a report, Exhibit M (2), on the 6th of July, 1872, stating that those people were holding' lands at favourable assessment, that they had mortgaged their holdings and were carrying away the crops of other people, that a complaint was made to him, that there was a balance of Rs. 22-13-6 payable by them to the Estate, and that they had not appeared even when summoned many times and he prayed for permission to attach the village. Upon this, the order Exhibit K was passed on the 11th of October, 1872, by the Raja of Vizianagram asking the Amin to collect the sum of Rs. 22-13-6 at once. There is nothing in the order authorising any attachment as prayed although Exhibit K is a reply to Exhibit M (2), dated the 6th of July, 1872.
22. On the 12th of October, 1872, the Mirasdar of Relli wrote Exhibit Q to the Amin of Pedagadi Tana stating that one Pandraju, the holder of a sixth share in a village, died leaving no male issue except a foster-son, that the d(SIC)eased was keeping a woman of low caste and a male child was born to her and that both of them were quarrelling as regards the share. The petitioner prayed that the share may be attached till the succession was settled.
23. Exhibit Q (1), dated the 21st of October, 1872, is a communication from the Amin to the Raja requesting orders on the petition Exhibit Q.
24. On the 8th of November, 1872, the order Ex. L was passed stating that the one-sixth share of the deceased and the remaining five-sixths share in respect of which cist was not paid should be attached and leased out and that the rents should be collected. We may point out that the land was never actually taken out of their possession of the grantee and let out to others. Attachment was evidently merely preventing' the grantees from cultivating for a short time.
25. On the 20th of January, 1873, the first and second defendants and others sent the petition Exhibit M to the Superintendent of Vizianagram Estate stating that the lands which had long been in their enjoyment had been attached without any reason, that they were suffering for their maintenance, because the crops had been poor and because there was famine the previous year and that if they had committed any fault, the same may be enquired into.
26. Upon this the Raja sent Exhibit M (3), dated December, 1873 (the portion bearing the date is torn) stating that these people executed a Kararnama on a Rs. 16 stamp paper stating among other things that they would render Sircar service properly with 32 men and that if it was brought to the notice of the Huzur that they behaved improperly they could be dispossessed and the village entered in the Sircar accounts. Then it says:
We have been pleased to favour and grant Appandorapalem, hamlet of Relli, which bears, out of Gudikattu Doulu of Rs. 203-8-0 deducting Rs. 37-8-0 Sircar cist, remaining cist of Rs. 166 for service Muzaravasatu to Uggina China Ramandora and others.
27. The document referred to in Exhibit M (3) is Exhibit A. It purports to be a deed of agreement executed by the 1st and 2nd defendants arid others and recites that the village which was assigned to them for services rendered was resumed in consequence of their failure regularly to perform the services, and that on their representation that they had no other means of livelihood and that in case the Raja revoked the resumption of the grant they would henceforward be properly rendering service with 32 men, the Raja had out of grace assigned the village bearing a Dowle of Rs. 203-8 with a kattubadi of Rs. 37-8 payable out of the same and measuring 150 acres 36 cents as service grant on condition of their enjoying the same at the will and pleasure of the Zamindar as long as he might be pleased. The agreement states that the executants have agreed to be present with 32 men and be rendering such service as was required by the Zamindar paying the kattubadi of Rs. 37-8 in two instalments. It concludes by saying:
If it comes to notice that we have in any way acted in contravention of your. Highness's orders, we agree to your Highness taking away the said village from our possession and getting it annexed to the estate.
28. A plea was raised in the Lower Court that this document was not executed voluntarily but was got from the executants by coercion. The Subordinate Judge was of opinion that the document was unduly forced upon the executants, that as, a contract it had no consideration and that it was not a grant of land by the Zamindar.
29. There is a great deal to be said in favour of the view taken by the Subordinate Judge when regard is had to the position of the parties, the mode of enjoyment for nearly 150 years and the circumstances that led to the execution of Exhibit A. It is, however, unnecessary for us to go into the question as even assuming that the agreement is binding on the defendants the plaintiff cannot eject them as there is no evidence that the defendants broke any of its terms.
30. It seems to us, reading Exhibits M-2, M-3 and A together and having regard to the proceedings which led to the execution of these documents, that the Zamindar even if the document was enforceable as a fresh grant would have to prove before he could eject the defendants that they had not been rendering services or had been guilty of any improper conduct.
31. We agree with Venkatasubba Rao, J., in his opinion that the grant is resumable under Exhibit A only if the grantees commit default in their performance of services, that the grant is one burdened with a condition of service and not one made in lieu of wages and that as the operative part of the deed is clear and unambiguous the resumption can only be on a breach by the defendants of their agreement to render service. The words 'at the will and pleasure of your Highness' and 'as long as your Highness might be pleased' are only expressions of subservience and cannot, if the operative part of the agreement is considered, be regarded as converting the position of the other party as a mere tenant-at-will. We may in this connection refer to the decision of their Lordships of the Privy Council in Vizianagaram Maharaja v. Suryanarayana and to Vizianagaram Maharaja v. Sitaramarazu I.L.R.(1895) M. 100. We must remember that the document was executed over 55 years ago by men in the hills and forest tracts at a place over 500 miles from Madras at that time unconnected by Railway from Madras when the power and influence of the Zamindars over the comparatively primitive inhabitants of the hills was very great and when the facilities of control which the Government now has over Zamindars was not very great.
32. It was argued that having regard to the various terms used as regards the defendants it should be presumed that the defendants are merely servants remunerated by the produce of the land, but we agree with Venkatasubba Rao, J., in thinking that no inference can be drawn from the use of the words Mudat, Mustajere or Vasathi, because there are other words like Mokhasa, Jodi, Kattubadi, etc., and the lands are described as Inam lands. For example, in Exhibit VII the lands are described as Inam lands and in the remarks column it is said that an annual kattubadi of Rs. 37-8 was fixed. Kattubadi is a revenue term for favourable quit-rent.
33. In Exhibit VIII, dated the 22nd of August, 1844, when referring to these lands, the following remark appears:
Until this village was granted as Mokhasa to the Manne people there were no village servants' manyams. After 'Mokhasa was granted Uggina Appanna and others gave land out of their Vasathi to the village servants and have been getting their work and Sircar work done by them when required. As until it was granted as Mokhasa there were no manyams to village servants, there is no measurement.
34. This shows that the defendants' ancestors while in their time were granting sub-tenure to the village servants for doing their and Government work, the grant is described as Mokhasa grant and it is hardly likely mat if the, grantees' ancestors were grantees more than 250 years ago and were themselves merely tenants-at-will and servants of the Raja paid for their services by the produce of the land, they would in their turn engage servants for doing Government service and pay remuneration out of their own lands. The probabilities, therefore, are that the grant was the usual grant burdened with service and not a grant resumable at will.
35. So far as the grantees are concerned, in some of the documents they describe themselves as Vasathidars and in some others as Mokhasadars.
36. Reliance has been placed on Exhibit R, dated the 29th of September, 1905, as containing an admission made by some of these hill men. Little reliance can be placed on this document as the object of it was to get the alienations set aside and for that purpose, as Venkatasubba Rao, J., points out, these people were prepared to make any statement so long as the lands which they had alienated were got back. As pointed out, it is nobody's case that these were jiroyati lands although Exhibit R says so.
37. We are of opinion that the decision of Venkatasubba Rao, J., is right and dismiss the Letters Patent Appeal with costs.