Madhavan Nair, J.
1. The plaintiff is the appellant. The suit out of which this appeal arises was instituted by him to recover possession of the suit land from the defendants on the ground that it was granted to the defendants' predecessor-in-title one Kotadu as service inam for the purpose of supplying country shoes to the Zamindar every year, that the service was not properly rendered by the defendants and that the plaintiff is no longer in need of it.
2. The grant was made in September 1871. The case of the defendants is that it was made in consideration of past services rendered by their ancestor Kotadu and also for rendering future service, that the grant is thus burdened with service and that the plaintiff is not therefore entitled to resume the land. Kotadu, the grantee, died in the year 1922. On 7th May 1926 the plaintiff sent a lawyer's notice to Kotadu's wife Achi and defendants 1 and 2, his grandsons, telling them that they were not doing the service properly, that he has decided to dispense with their services and that possession of the land should be delivered immediately. On 9th January 1927 defendants 1 and 2 and Achi approached the plaintiff with a petition in which they said that there was no necessity to file a suit, that they would pay Rs. 3,000 for the land, that a patta may be issued in their favour with a high rate of cist prevailing for the wet land in the village and that their services may be dispensed with. They also stated in the petition that out of the Rs. 3,000, Rs. 500 would be deposited on that day, another Rs. 500 within one month from that date, that the balance of Rs. 2,000 would be paid within six months and that if the money was not so paid, the earnest money deposited might be forfeited and no objection would be raised in obtaining possession of the land by the Zamindar. The Zamindar accepted without prejudice to his right of resumption the request of the petitioners and the first instalment of Rs. 500 was deposited by them. Another Rs. 500 was also deposited according to the stipulation. Saying that the balance of R3. 2,000 was not paid, this suit for recovery of possession of the suit land was instituted by the plaintiff. On this part of the case, the defendants contended that the money was paid in due time, that the plaintiff had agreed to give them in addition to the suit land another 3 acres 27 cents of land adjoining it; but this was denied by the plaintiff. The defendants also contended that the plaintiff had no right to resume the land in any event
3. On the above contentions the three main questions that arose for consideration were: (1) 'Whether the plaintiff is entitled to resume the suit inam (2) Whether the consideration under the suit arrangement has been paid in full or only in part; and (3) Whether the plaintiff is entitled to evict the defendants either by the grant or by the terms of the arrangement.' These points are covered by issues 1, 3 and 5. On these the learned Judge found that the plaintiff is not entitled to resume the suit land or to evict the defendants and that the consideration was not fully paid by the defendants. On these findings, the plaintiff's suit was dismissed. The other issues in the case deal with points of subsidiary importance.
4. The main question for consideration in this appeal is whether the plaintiff is entitled to resume the suit land. This in its turn would depend on the question whether the suit inam was granted in lieu of wages for service or whether it was burdened with service. It would be resumable only if the grant was made for wages in lieu of service. The actual grant has not been produced, but in its place documents called 'chekunamas' have been produced by the defendants. It is said that these do not lead to any definite conclusions regarding the nature of the grant. We shall presently examine these, and the other documents produced in the case.
5. The grant is admittedly a post-settlement one and the service is purely personal. Keeping in mind these characteristics the learned Counsel for the appellant argues that in this Presidency there is a presumption that if the grant is a post-settlement one and the service is personal, the land is resumable, and unless it is rebutted by the defendants- and this he says has not been done in this case-the plaintiff is entitled to succeed. In support of the presumption and of the tests that should be applied in considering whether a grant for service is resumable or not, the learned Counsel cited various cases commencing from the earliest case in Forbes v. Meer Mahomed Tuquee (1869) 13 MIA 438, the most important of which are Sree Raja Visweswara v. Gorla Budaradu 1910 MWN 436, Vadisapu Appandera v. Vyricherla Veerabhadraraju Bahadur (1911) 2 MWN 406, Bheema Kesari Deo Gajapati Maharaja Garu v. Sondi Prahlada Bissoye Ratno 1914 MWN 179, Parthasarathy Appa Rao Bahadur v. Secy of State 1915 38 Mad 620, Kamakhya Narain Singh v. Abhiman Singh 1934 67 MLJ 450, Polladri Gadu v. Rajah of Vizianagaram 1931 33 MLW 201, Chowdanna v. Venkata Pathinayam Varu : (1926)50MLJ429 , and Rajah of Vizianagaram v. Ramaswami : (1927)52MLJ283 . To show how by relying on various circumstances the presumption may be rebutted, he cited Mrutyanjayadu v. Rajah of Pittapuram 1917 30 MLJ 132, Rajah of Vizianagaram v. Appalaswami : AIR1930Mad755 , Lakhamgouda v. Baswant Rao 1931 61 MLJ 449, and Venkatanarasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur (1906) 29 Mad 52. To the list of cases cited by the appellant's counsel, the respondent has added Thiruvenkatacharlu v. Shaik Attoo Sahib : AIR1926Mad511 , Vellava Sakreppa v. Bhimappa Gireppa 1915 39 Bom 68 and Lakhamgauda v. Keshav Annaji (1904) 28 Bom 305. In our opinion, it is not necessary to discuss these cases in detail. With regard to the tests of resumability there is no dispute. It is admitted that the question to be decided is whether the land has been granted in lieu of wages or whether the grant is burdened with service. The dispute is with regard to the presumption relied on by the learned Counsel for the appellant. Having regard to the cases, there can be no doubt that, so far as this presidency is concerned, it has been laid down that the presumption relied on by the appellant does exist. In Sree Raja Visweswara v. Gorla Budaradu 1910 MWN 436 the grant was subsequent to the Permanent Settlement. It was pointed out that the burden is on the defendants to show that in such a case the grant was not in lieu of wages. In Vadisapu Appandera v. Vyricherla Veerabhadraraju Bahadur (1911) 2 MWN 406 it was pointed out that:
In this Presidency there is a series of decisions that in cases where a service grant was included in the Mal assets of a zamindari at the time of the Permanent Settlement, there is a presumption that the zamindar can resume.
6. In Bheema Kesari Deo Gajapati Maharaja Garu v. Sondi Prahlada Bissoye Ratno 1914 MWN 179 the grant was post-settlement and the service to be rendered was personal to the zamindar. It was held that the land was resumable by the zamindar whenever he chose to dispense with the services. In Chowdanna v. Venkata Pathinayam Varu : (1926)50MLJ429 the grant was post-settlement and the service to the zamindar was personal. That being so Phillips, J. said:
It has always been held in this Court that the zamindar is entitled to put an end to such service at his pleasure and resume the grant
and he referred to the two cases just mentioned. All these decisions would show that the presumption relied on by the learned Counsel has been established in this Presidency by a series of decisions, but this presumption is a rebuttable one. No doubt Venkatasubba Rao, J. in Thiruvenkatacharlu v. Shaik Attoo Sahib : AIR1926Mad511 has stated after an examination of the eases that there is no room for holding that there is such a presumption. The dictum of Venkatasubba Rao, J. has not been accepted by Ramesam, J. in Rajah of Vizianagaram v. Ramaswami : (1927)52MLJ283 who says that it has been laid down by a series of decisions in this Presidency that, in the case of Dharmilla inam lands, they are prima facie resumable. But whether there is a presumption or not, as we have said, the presumption is only a rebuttable one, and the question of presumption in actual practice does not create much difficulty, for as pointed out by Ramesam, J., it is not very often that we get a case for decision where no further information is available except that the grant is a service inam land granted subsequent to the Permanent Settlement. However each case has to be decided on its own evidence and the primary burden is on the plaintiff to prove that the land is resumable. We have referred to certain documents called chekunamas produced in the case. These are Exs. 1 and 6. Ex. 6 is more or less a copy of Ex. 1. The chekunama is an order issued by the zamindar to the karnam to separate the inam after fixing the boundaries and to deliver possession of the same to the grantee. In the preamble of Ex. 6 the object of the grant is mentioned. The preamble runs as follows:
Chekunama (memo pertaining to rent free land) written and given on Wednesday the 11th Aswija Bahula of Prajotpathi year corresponding to 8th November 1871 by the Karnam of Jakkalanakkala village attached to Nunnasthalam Pargana, to Kalpala Kotadu, Madiga (cobbler), of Jaggavaram, who supplies the entire sandals and shoes to the Circar-Fasli 1281.
7. (The translation given here is the correct translation of the preamble.) From this it would appear that the land was given to Kotadu who supplies the entire sandals and shoes to the Circar. The expression 'who supplies the entire sandals and shoes' may well suggest that he has been supplying shoes in the past and that he is supplying them at present. It does not certainly show that the supply is to be only from that date onwards in the future. The learned Judge has interpreted the document to mean that the grant has been made for the past as well as for future service. We cannot say that the document is not susceptible of this interpretation and clearly there is no evidence in the case to show that this interpretation should be rejected. The inference from the other circumstances in the case rather supports this construction than the one sought to be put upon it by the appellant's counsel. In Ex. J, dated 1892, the letter by the Zamindar to the Tanedar, he directed him to get the supply of shoes made by the grantee and in case of default, to attach the land and communicate the fact to him.
8. In Ex. H-2, dated 4th May 1892, the Karnam reported to the Zamindar that there were no crops found for attachment and that he was told by Kotadu that he supplied two pairs of shoes already. It is clear that the Zamindar did not attempt to resume the land for default, but he ordered only that attachment should be made. This would suggest as pointed out by the counsel for the respondents that the land was not resumable. This view has been accepted by the learned Judge. It is admitted that the land was originally a dry land and that it is now a wet land. There is evidence that Kotadu converted the dry land into wet land and that he spent money for its improvement. It is unlikely that he would have spent money on improving the land if it was resumable by the Zamindar. Kotadu and his descendants have been enjoying the land ever since 1871 and even when default was committed at one time in the supply of shoes, the property was sought to be attached only and no attempt was made to resume it. These circumstances strongly support the view that the land was not resumable. Exs. H and H-l, statements of Dharmilla inam lands, do not help us much in determining the point. They simply state that the lands were given for supplying shoes and slippers (see Ex. H) and service (Ex. H-1). In Rajah of Vizianagaram v. Ramaswami : (1927)52MLJ283 , Ramesam, J. pointed out that:
Even where the lands are Dharmilla inam lands and services are private and personal, if the terms of the grant show that they were given partly for past services and partly for future services, then it would be more a grant burdened with service rather than a grant as remuneration for future services.
9. This is the position with respect to the grant in this case. The presumption relied upon by the learned Counsel has been rebutted by the terms of Ex. 6 and the other circumstances referred to above. In this connexion we must also observe that the lower Court says that:
There is not even an iota of evidence on the plaintiff's side to show that the defendants were not rendering service properly.
10. The correctness of this observation has not been challenged before us by the learned Counsel. In this state of the evidence it is clear that the suit lands are not resumable by the appellant. On this point we cannot say that the conclusion arrived at by the lower Court is not justified by the circumstances of the case. The next question is whether under the terms of the arrangement Ex. C the appellant is entitled to evict the defendants. The lower Court has found that the defendants' case that they paid the third instalment of Rs. 2,000 towards the consideration is not true. That being so, it-is argued by the appellant's learned Counsel that the appellant is entitled either to recover the land under the arrangement or to get damages from the respondents for the breach of the agreement. The latter part of the argument-is based upon the special nature of the finding recorded by the learned Judge on. this point. The learned Judge's finding is that, though the defendants failed to perform their part of the contract in not paying the full amount of Rs. 3,000 the stipulation regarding the forfeiture of the payments already made and recovery of possession of the land in case of default is penal within the meaning of Section 74, Contract Act. The learned Judge held in the circumstances that the plaintiff can at the most recover only a reasonable compensation for breach of the contract, but as in this suit he claimed only possession of the land, he cannot recover that either, and so it was held that he was not entitled to any relief either by way of ejectment or by way of compensation. It is argued that if the case is one to which Section 74, Contract Act, would apply, then the learned Judge is bound to award some compensation and that though the appellant has not specifically asked for it, the same may be paid to him on payment of the appropriate court-fee on the amount.
11. In our opinion, the learned Judge's reasoning on this point is altogether erroneous. There is no question of any breach of contract or of any penalty arising in this case. The true nature of the arrangement evidenced by Ex. C is this : The plaintiff (appellant) issued a notice of eviction on the defendants. Then they approached him saying that in the circumstances, mentioned by them in the petition they may be allowed to retain the land and that if they do not act up to those terms, the appellant may obtain possession, that is obtain possession by asserting his right of resumption, if he had any and this request was accepted by the plaintiff. This is the way in which arrangement must be understood is clear by looking at the endorsement on the petition of the defendants made by the officer of the Zamindar. He states:
I submit without prejudice to our resumption suit in case of his default to fulfil the conditions herein named, this application may be approved and the first instalment of Rs. 500... may be ordered to be received.
12. Then the final endorsement is:
The petitioner's terms are accepted. Receive the amount and keep it in anamath.
13. This would show that the appellant was asked by the defendants to stay his hands for a while and to give them an opportunity to act according to the terms suggested by them in Ex. C, with the understanding that if they do not comply with the terms, the appellant may assert his rights of resumption and that the terms were approved by him, ' without prejudice to his resumption suit ' as suggested by his officer. In this view the arrangement not having been carried out by the defendants, the plaintiff's right is to proceed with the suit for resumption with respect to which he had already given the lawyer's notice Ex. B and this is exactly what was done by him. The arrangement entered into under Ex. C is only a request to stay the contemplated proceedings on certain terms, and not a contract the breach of which will entitle the appellant to evict the defendants. No question of any penalty, therefore, arises. On the breach of the arrangement the appellant is not entitled to recover the land on the basis of the breach as such or to get any damages. His remedy is only to proceed with a suit to assert his right of resumption, if he had any. We have now found agreeing with the lower Court that he has no such right. The result is that the appeal must be dismissed with costs.
14. We having found that the plaintiff has no right to resume the land, the question whether the grant of the suit land consists of both melvaram and kudivaram or whether it consists of the grant of melvaram alone-the subject matter of issue 2, namely, whether the plaintiff is entitled to both the varams on the lands-does not arise for decision and we do not decide it, though the lower Court has found this issue in favour of the plaintiff.