Charles A. Turner, Kt., C.J.
1. Prima facie the lands are the lands of the zamindari granted by the former zamindar to certain persons on condition of rendering service and of the payment of a certain sum of money to the zamindar in recognition of his ownership of the land, and it may be to meet the excess of the proper rent over the allowed remuneration.
2. It is ordinarily competent to a zamindar to dispense with such services and to resume the tenure or at his pleasure to enhance the quit-rent, and there is evidence to show that, when the zamindari was under the charge of the Court of Wards, the quit-rent was in fact enhanced in 1869.
3. The former zamindar assigned the services of some of these service tenure holders to his relations, and thereafter the quit-rents on the holdings of those service tenure holders were collected by the persons to whom the services of the holders had been assigned. There is nothing to show that at that time there was any assignment of the gadaba lands to the Raja-bhandus.
4. By the sale-deed, Exhibit A, one of the Raja-bhandus sold a piece of tirastu land to another. This is not one of the lands now in suit, and it is the only instance in which it is shown that an assignee of the gadaba service dealt with any of the lands held by the gadabas with the knowledge of the zamindar. It was most unusual for the zamindar to attest instruments, and the circumstance that his attestation was thought necessary suggests that it was taken to indicate his assent to a transaction to which he might have objected. The receipt, Exhibit B, is so expressed that it warrants the contention of the respondent's counsel that in effect what had been a tirastu land was then converted into a manyam.
5. In 1858 Exhibit I shows that the Agent of the Court of Wards intervened to prevent a bhandu from resuming the land of a gadaba and at first insisted in his acknowledgment of the right of the gadaba to hold the land without interference and that to spare the bhandu humiliation the Agent agreed to assign to him another gadaba in lieu of the one whose services he had theretofore enjoyed. That the substituted gadaba was to have a tirastu land equal in extent to that of the gadaba whom he replaced may show only that no heavier charge for the maintenance of the gadaba was to be entailed on the bhandu by the change.
6. It does not clearly appear from the decree in Original Suit 3 of 1868 that the parties to the suit claimed any beneficial interest in the tirastu lands other than the right of service, and this, so long as the zamindar continued to allow the services to the family, might be the subject of partition.
7. The zamindar was not a party to the proceedings in that suit, and they can only be evidence as proof of an act of ownership. There was not in our judgment sufficient evidence to justify the Judge in refusing to give effect to the presumption that the tenure is resumable. We therefore allow the objections to the finding and affirm the decrees of the Subordinate Judge, but we consider that each party should bear his own costs in all Courts as the zamindar has so long assented to the enjoyment by his bhandus of the services of the gadabas.