1. In this case the appellant-defendant was the holder of a certain inam grant given by the Zamindar of Kangundi whose representative is now the plaintiff-respondent, in 1806. Both the Lower Courts have found that this estate was settled in 1797 and consequently this grant to the defendant's predecessor was a post-settlement grant. The only evidence of the nature of the grant is contained in Ex. A which says that it was for a service to attend daily on the Zamindar as he performs devotions, etc. This undoubtedly is a personal service to the Zemindar, and the question arises as to whether it is resumable or not. It does not appear to be a grant burdened with service, but rather a grant in lieu of wages, for there is no evidence that there was any reason for the grant except that the grantee should perform in the future the service enumerated. That being so, it has always been held in this Court that the Zemindar is entitled to put an end to such service at his pleasure and resume the grant, and I need only refer to the case in Vadisapu Appandora v. Vyricherla Vaera-bhadra Raju Bahadur (1911) 2 MWN 406 and Gajapati Maharaja Gam v. Sondi Prahalada Binoyi Ratno (1914) MWN 179. I agree, therefore, with the Lower Courts that the Zemindar was justified in resuming the grant.
2. A further contention is then raised that the Zemindar is not entitled to claim rent from the defendant because he is not a ryot within the meaning of the Estates Land Act. This plea was not taken specifically in the written statement, apparently because if successful it involved the result that the defendant being a mere trespasser would be liable to eviction. Now the point is pressed apparently because an ejectment suit would be barred by limitation. However the point has been raised now and must be decided, as it was raised in the trial Court at a late stage. The contention here is that the defendant was originally a landholder and that when the grant was resumed he must be deemed to have continued as a trespasser, for he had never been a ryot. This, however, ignores the condition of affairs at the time of the grant. It is not in evidence whether the grant was of the whole land or only of the melwaram; but it has been held in this Court in Gajapati Maharaju Garu v. Sondi Prahlada Binoyi Ratno (1914) MWN 179 a decision which was followed in Idulityly Siyyaddi v. Sri Raja Viswaswara Nissuka (1914) 18 MLT 142 that a Zemindar is not entitled to eject grantees from the lands as a result of such resumption and that the usual presumption of occupancy right must be raised in their favour. If that is done in this case, it must be presumed that the defendant who is in occupation of the land has a right of permanent occupancy. 1 think also the same result would be obtained by the ordinary presumption that a person's possession must be ascribed to legal origin rather than to an illegal one. Here the defendant continued in possession even after the Court had held that he was not entitled to resist resumption of the inam. If we apply this ordinary presumption it follows then that defendant must be deemed to have retained possession not as a trespasser but as an occupancy ryot. In whichever way the question is viewed, the result is the same, namely, that the defendant was in occupation as an occupancy ryot. As such, he is bound to pay rent for the land in his holding. The question of what is the right amount of rent has not been discussed in this suit for the defendant has not pleaded that what is demanded is wrong and therefore that does not arise for determination here.
3. The second appeal is accordingly dismissed with costs.