1. It is found by the District Judge that the lands were held by the plaintiff for the japam service and he had no hereditary right to them. Defendants Nos. 4 and 5 justify the plaintiff's dismissal on the ground of his failure to perform ser-vice. The Judge finds that there was no substantial failure to perform japam subsequent to the dismissal. He does not consider the defendants' case which is accepted by the Munsif that there was failure to perform the japam service for three years or more. If the lands had been granted to the plaintiff to be enjoyed for the japam service alone, long continued failure to perform it must rightly entail dismissal.
2. The District Judge must return a finding on the evidence on record on the question.
Whether the plaintiff defaulted to perform the japam service and whether ho was rightly dismissed for such default?
3. The defendants ask us to say that they are entitled to dismiss the plaintiff without assigning any reason. But we decline to consider this case for it is inconsistent with the defendant's plea in paragraph 3 in the written statement. The finding should be submitted within six weeks and seven days will be allowed for the filing of objection.
4. [In compliance with the above order the District Judge submitted the following finding that it is impossible to hold that there had been any default to perform japam such as is alleged in the written statement and it further appears to me that such failure was not really one of the reasons alleged for dismissal and that in any case no default has been established which would justify the order of removal on 18th February 1905.]
5. Accepting the findings we dismiss the second appeal with costs.