Anantakrishna Ayyar, J.
1. This plaintiff is the appellant in all these second appeals. He filed five suits in the Court of the Deputy Collector of Trivellore under Section 77 of the Madras Estates Land Act, I of 1908, to recover rent due. The defendants in some of the suits pleaded that they were bound to pay only a small amount as jodi and road ces, and that they were not bound to pay the ayan thirva claimed by the plaintiff, and that the suits to recover the ayan thirva were not maintainable. The defendants in the other suits pleaded that they had been enjoying the lands as sagubadi manyam for generations, free of thirva as inam, and that the claim made now for the first time that they were bound to pay ayan thirva was unsustainable.
2. Both the lower Courts dismissed the suits, and the plaintiff has preferred the second appeals. It was explained that the suit lands were situated within the zemindari of Kalahasty, that the villages were purchased by the plaintiff, and that the plaintiff stands in the position of the zemindar. It is admitted that the lands concerned in three of the suits are sagubadi inams, in the fourth vinayaka inam, and in the fifth valluva or astrologer inam. The Deputy Collector who tried these suits observed as follows in his judgment in S.S. No. 628 of 1922 (S.A. No. 1880 of 1925); 'It is admitted that no original grant or other fact is available as regards the genesis or nature of inam and that for over 40 years (to the knowledge of the D. W. No. 1) only a jodi is being paid to the zemindar.' Again in para. 5 it is stated that 'the suit land is sagubadi inam and no evidence has been adduced that it ever paid full assessment. The available evidence is that it has always been paying only a small jodi of Rs. 2.' Some documents relating to sagubadi inams in other villages were produced by the plaintiff. With reference to the same, this is what the Deputy Collector stated in para. 3 of his Judgment: 'none of these documents relates to the inam in question and the nature of the sagubadi inams in other villages does not appear to be uniform.' After noticing the difference in the various documents filed by the plaintiff, the learned Deputy Collector concluded para. 3 of his judgment as follows: 'The plaintiff's Vakil admitted as stated by P. W. No. 3 that the inam was for the encouragement, and spread of cultivation. It is admitted also that no such service is done or is necessary under modern conditions. The inference, therefore, is that the inam is a personal inam granted for past services. In that case, its resumption by the proprietor would be unauthorised.' On appeal the learned District Judge of Chingleput, found that these inams were very old ones and that it was not disputed before him by the plaintiff that in one case the defendants were in possession free of rent, and in the other cases on favourable rent, ever since the grant of these inams some generations ago. After referring to the fact that no deed of grant had been produced in two of the cases of sagubadi inams, and that according to fix. I produced in the third suit the inamdar was 'given a portion of land free of rent and that he should see that no land in the village was left waste', he proceeded to discuss the question that the kararnamas relating to the other villages could not in the circumstances be of any real help in these cases; he held that the burden of proving an inam to be resumable rests upon the persons who assert it. He observed as follows: 'Three of the inams are sagubadi inams which were granted to the original inamdars on condition that they should keep all the lands of the village cultivated. These services have long ceased to be performed for the simple reason that there is little or no cultivable land yet remaining to be cultivated.' He came to the conclusion that the land was granted, and that it was a 'grant burdened. with sagubadi service' and that the terms of the grant had not been violated. He further came to the conclusion that the plaintiff had not proved his right to resume the sagubadi inams, and dismissed the three appeals relating to the sagubadi inams.
3. It was contended before me by the appellant's learned Advocate that the services in these three cases are personal to the zemindar and not public services, and that it was open to the zemindar to resume the inams and to levy full or ayan thirva.
4. As regards the nature of sagubadi inams, the evidence is very meagre; but we have got the following admission made on the Bide of the plaintiff, as mentioned in para. 3 of the Deputy Collector's judgment, 'the plaintiff's Vakil admitted as stated by (P. W. No. 3) that the inam was for the encouragement and spread of cultivation. It is admitted also that no such service is done or is necessary under modern condition.' The learned District Judge, as mentioned already, in para. 3 of his judgment remarked as follows: 'Three of the inams are sagubadi inams which were granted to the original inamdars on. condition that they should keep all the lands of the village cultivated. These services have long ceased to be performed for the simple reason that there is little or no cultivable land yet remaining to be cultivated.'
5. The learned District Judge after referring ring to Ex. I, filed in one of the three cases and noting that the inamdar was given a land free of rent and that he should see that no land in the village was left waste, and after observing that the wordings of other documents relating to other villages filed by the plaintiff were different, came to the conclusion that land in suit was granted, burdened with sagubadi service. As observed by the Deputy Collector 'no original grant or other fact is available as regards the genesis or nature of these inams' and the plaintiff's witnesses, naturally enough, could not speak under what conditions the suit inam was granted to defendant's ancestors. In these circumstances I think that the lower Courts were justified in proceeding on the basis of the admissions made on behalf of the plaintiff that the inam was for the encouragement and spread of cultivation, In Vol. III of 'the Manual of Administration of the Madras Presidency' by Dr. Macleane...,Glossary, page 356, 'sagubadi inam' is described as 'inam granted to head ryots with a view to their encouraging the cultivation of Government lands ' When lands are thus granted as sagubadi inams, it seems to me that the lands are granted burdened with the sagubadi service. If the inamdar to whom such a grant has been made should fail to perform that service when the service was performable, it would be open to the zemindar to resume the inam but if--as the District Judge finds--'the services have long ceased to be performed for the simple reason that there is little or no cultivable land yet remaining to be cultivated and the terms of the grant have not been violated', then it seems to me that the Zemindar is not entitled to resume these inams. As remarked by the Privy Council in the case reported as Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R. 529 : 3 S.P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614, the inamdars would still be bound to render the services should by any chance occasion and necessity for the rendering of the same should arise in future, and on failure to perform the duties the inams could be resumed. The case before the Privy Council was one where a grant of land was made for keeping up of a body of men to repel the excursions of wild elephants. Their Lordships held 'if the operation of any natural cause (as for example, the practice of cultivation which has caused the wild elephants to clear out of the land) removes the necessity for the services, the grantee will hold the lands practically freed from the condition originally imposed upon him; their Lordships are, therefore, of opinion that upon the true construction of these sanads, the grantees, though bound to protect the pergunnah from the excursions of wild elephants so long as those incursions last, and though still bound to do go should by any chance these incursions be renewed, and though they may be liable to forfeit the tenure if they wilfully failed in the performance of these duties, are not liable to have their lands resumed because there is no longer any occasion for the performance of this particular service, there being no fear of the depredations of elephants in those places.' As their Lordships remarked at page 466 'it emphatically lay upon the appellant, who is seeking to dispossess, or to rack-rent, the respondents, who by themselves or their ancestors, have brought these lands into cultivation, and enjoyed them for so long a period; who must have been permitted by former zemindars 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. ' Both the lower Courts have held that the plaintiff has not made out his title to resume and levy full ayanthirva, and I am not satisfied that they were wrong. '.;
6. The case of Kandada Thiruvencatacharlu v. Shaik Altoo Sahib 94 Ind. Cas. 458 : 50 M.L.J. 251 : (1926) M.W.N. 314 : A.I.R 1926 Mad. 511 and the case of Rajah of. Vizianagaram v. Yadagiri Ramaswami : AIR1927Mad448 , were brought to my notice, as also the case of Secretary of State v. Rajah of Venkatagiri. 73 Ind. Cas. 741 : 44 M. 864 : 30 M.L.T. 164 : 41 M.L.J. 624 : (1922) M.W.N. 1 : 26 C.W.N. 809 : A.I.R. 1982 P.C. 168 : 41 I.A. 415 (P.C.).
7. In Secretary of State v. Rajah of Venkatagiri 73 Ind. Cas. 741 : 44 M. 864 : 30 M.L.T. 164 : 41 M.L.J. 624 : (1922) M.W.N. 1 : 26 C.W.N. 809 : A.I.R. 1982 P.C. 168 : 41 I.A. 415 (P.C.) the Privy Council held that, having regard to the terms of the sannad granted to the Raja of Venkatagiri and the circumstances in which it was issued, the Government was not entitled to resume certain inam lands within the zemindari. The only question that arose for decision was, who had the right to resume certain inams, whether the zemindar or the Government--it being assumed that' the inams were resumable. The question that arises in these second appeals before me' is whether any right of resumption has been made out. Therefore, the decision in Secretary of State v. Rajah of Venkatagiri 73 Ind. Cas. 741 : 44 M. 864 : 30 M.L.T. 164 : 41 M.L.J. 624 : (1922) M.W.N. 1 : 26 C.W.N. 809 : A.I.R. 1982 P.C. 168 : 41 I.A. 415 (P.C.) is not of any real guidance to me in these cases. Some arguments were advanced whether the inams in the present case are personal inams or public inams In the view I take, it is not necessary to record a definite opinion, on that question. Assuming they are public inams, then, prima facie, the zemindar Could not claim to resume them. If, however, they are assumed to be personal. inams, then, there are findings by the lower Appellate Court that these lands were, granted to the inamdars burdened with particular service and that these services are not required by the zemindar, and that there has been no violation of the terms of the grant by the inamdars nor any default on their part in the rendering of the services. As remarked by the Privy Council in the case Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur 29 M. 52 : 3 C.L.J. 1 : 10 C.W.N. 161 : 3 A.L.J. 54 : 8 Bow.L.R. 1 : 16 M.L.J. 1 : 1 M.L.T. 3 : 33 I.A. 16 : 8 Sar. P.C.J. 397 (P.C.) 'where a grant of land is subject to a burden of service, and is not a mere grant in lieu of wages, the grantor has no right to put an end to the tenure, whether the services are performed or not, as long as the grantees are willing and able to perform the services. ' See also the case of Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R. 529 : 3 Suth P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614 already referred to. It could not be contended that all inams granted for personal services are always resumable There is no necessity to decide these cases on the theory of presumption only. There seems to be some difference of opinion as to what the presumption in such cases is. See Kandada Thiruvenkatacharlu v. Shaik Altoo Sahib 94 Ind. Cas. 458 : 50 M.L.J. 251 : (1926) M.W.N. 314 : A.I.R 1926 Mad. 511 and Rajah of Vizianagaram v. Yadagiri Ramaswami : AIR1927Mad448 . But we have got Ex. I, in one of the cases, and other circumstances already mentioned, and referred to by the lower Courts. It was open to the lower Appellate Court on the materials before it, to come to a finding that the lands in these three cases were granted burdened with particular services and that there was no violation by the inamdars of the terms of the grant. That being so, the plaintiff is not entitled to resume the inams and levy full ayan thirva, these three suits were rightly dismissed by the lower Courts. I accordingly dismiss these three second appeals (Nos. 1877,1878 and 1880 of 1925) with costs.
8. Second Appeal No. 1879 of 1925 related to vinayaka inam. It was not contended that the finding that the inam concerned in this suit was a grant of lands burdened with the vinayaka services to be rendered in connection with the temple was wrong. Vinayaka service is a public service rendered to the whole Hindu community and the service to the deity is being regularly rendered; the plaintiff is not entitled to resume this inam.
9. Similarly in Second Appeal No. 1881 of 1925, the inam relates to a valluva or astrologer inam. It is admitted that the service is still performed and that it is a public service enjoyed by the whole community. The plaintiff is not entitled to resume this inam either.
10. In fact the learned Advocate who appeared for the appellant, did not impugn the correctness of the decision of the lower Appellate Court in these two cases. These second appeals (Nod. 1879 and 1881 of 1925) are also dismissed with costs.
11. As regards second appeals Nos. 1877,1878 and 1880 of 1925 as it is said that there are other similar inams in the zemindari, I declare that these are fit cases for appeal under Section 15 of the Letters Patent.