1. This case has had a long history. The plaintiffs are the trustees of the Brahmapureeswaraswami Koil in the village of Pasupatikovil, and they sue the defendants, who were the temple drummer and his brother, for the delivery of a certain house and mesne profits. In consequence of the course that this case has taken, it becomes important to examine the pleadings with some care. The plaint-alleges that in 1880 the trustees permitted the 1st defendant and his two deceased elder brothers to reside in a house which was built by the former trustees of the temple on a certain site belonging to the temple for occupation by the pipers who did melam service in the temple. In return for this permission the defendant and his brothers undertook to do melam service in the temple living in the house rent free so long as they did that service, under an obligation to deliver up possession of the house in case they failed to perform the melam service or the trustees dispensed with their services. As the 1st defendant had discontinued his melam service from Chitrai, 1916, he was bound to deliver possession of the house. A notice was sent by the plaintiffs to the 1st defendant on 14th November 1916 demanding possession. The defendant replied on 13th December 1916 contending that the house did not belong to the temple. The plaint continues that in case the oral agreement set up, i. e. the agreement of 1880 is held to be invalid, the present trustees are entitled to possession as the 1st defendant has bean simply living in the house as a licensee of the prior trustees. The cause of action is said to have arisen in Chitrai 1916, when, the first defendant ceased to do his service. In the written statement the defendants admit that the ground site belongs to the temple, and they set up that, as consideration for the melam service, the trustees granted to the brother of the 1st defendant the sites in question and nanja and punja etc, pertaining to a quarter pangu (share) in the village as manyam. They refer to a registered agreement dated the 21st of July 1880. They further say that during the time of the first plaintiff as trustee, the trustees leased out the lands and paid the defendants 64 kalams of paddy every year and when the defendants demanded payment of 108 kalams of paddy due to them, they brought this suit. They further plead that the grant cannot be resumed as the defendants' right has been established.
2. Of the issues framed only two need be referred to here, viz:
1. Wether the plaint house sites were granted to the defendants' ancestors on the terms and conditions set forth in the plaint, i.e., the oral agreement?
2. Were the sites given to the defendants' ancestors absolutely as contended for by the defendants?
3. The District Munsif found in favour of the plaintiffs. He examined the agreement of the 21st July 1880, which is Ex. I in the case, and found that it did not grant an irresumable inam to the defendants. He also found that the defendants had not been rendering their services. On appeal to the Subordinate Judge he observed that the plaintiffs gave up their rights to recover possession of the suit house and mesne profits and they only sought to recover possession of the sites. This is also apparent from the judgment of the District Munsif. The Subordinate Judge found that the oral agreement set up in the plaint was false. He then goes on to consider the terms of Ex. I and at the end of paragraph 8 of his judgment says: 'I find that plaintiffs are entitled to recover possession of the suit sites in case the defendants make default in rendering the services of Periemelam and Chinnamelatn to the temple without any default on the part of the plaintiffs to act according to the terms embodied in Ex. I'. The Subordinate Judge remanded the suit to the District Munsif to consider the three points set out in his judgment and framed three additional issues. The District Munsif at the re-hearing decided on the three Issues that the lands pertaining to the quarter pangu never went into the possession of the defendants and that the plaintiffs were given possession with the defendants' consent. He also found that the plaintiffs paid the emoluments due to the defendants upto the time when the defendants failed to render services of Periamelam and Chinnamelam to the temple. It appears by the way, that this latter service was never performed and no complaint or question seems to arise with regard to it. The District Munsif also found that the defendants had wilfully ceased to render the services even after they had been paid. He remarks at the end of his judgment 'It was sought to be contended that the house site was given as consideration for the defendants removing from Manojiapppa Chavadi and that the lands were consideration for the services. This is a new case for the first time set up at the trial'. The Subordinate Judge to whom an appeal was taken remarks that the previous Subordinate Judge considered the effect of Ex. I and that the suit has been developed into one based on the agreement, Ex. I, but there are no allegations in the plaint as to how the plaintiffs were entitled under the provisions of that document to recover possession of the suit sites. He finds that the sites are not liable to be given up and that he is not bound by the observations of the First Subordinate Judge with regard to the effect of that document. He also finds that as the plaintiffs did not carry out their part of the contract, viz., to put the defendants in possession of the lands, they cannot enforce the remaining terms of the contract and that so long as the plaintiffs have not established that they have paid to the defendants the entire income from the the pangu of lands, they are not entitled to their services. As to the reasons which led to the cessation of the services by the defendants, he says he cannot come to a conclusion on the evidence before him. The points taken in second appeal are three.
1. The Second Subordinate Judge from whose judgment the second appeal is now taken, was not entitled to review the decision of the previous Subordinate Judge as to Ex. I.
2. An appeal ought to have been preferred against the remand order.
3. The inam is resumable.
4. Now as to the first contention certain cases have been quoted to show that where for instance, a Will has been construed in a suit between the parties, that construction even if erroneous, is binding on them in subsequent suits relating to the property not involved in the original suit. Secretary of State for India v. Rajah of Venkatagiri (1916) 7 Ind. Cas. 858 : 8 M.L.T. 233 : (1910) M.W.N. 692. 2 M.W.N. 96 : 20 M.L.T. 284, compare also Latchuammal v. Gengammal and George Henry Hook v. Administrator-General of Bengal 33 C.L.J. 405 : 3 U.P.L.R. 17 : 23 Bom. L.R. 618 . It is not disputed by the learned Vakil for the defendants that such is the law. But what he says is that although the first Subordinate Judge used the words 'I find', that does not affect a finding or decision on the construction of Ex. I, and he points to the fact that in the latter part of the 3rd of the issues, which he framed for the first time on remanding the case, he says: 'and if so, whether they (i. e, the defendants) are not liable to surrender possession of the suit sites to the plaintiffs? It is difficult to see how this could be reviewed if he had already given a binding finding as to the effect of the document. I am inclined to think that this is right and that the Second Subordinate Judge was not concluded by the observation made in the remand order.
5. Next as to the obligation on the defendants to have appealed from the remand order, this is clearly not a remand on a preliminary point within the meaning of the decision as Ramachandra Joishi v. Hazi Kassim 16 M. 207 : 5 Ind. Dec. 852. and if it is not a remand on a preliminary point under Order XLI, Rule 23, there is no appeal Athappa Chetty v. Ramanathan Chetty 53 Ind. Cas. 417 : 10 L.W. 359 and Ponangi Venkatasubbarayudu v. Zemindar of Nuzvid 60 Ind. Cas. 609 : 12 L.W. 667.
6. The next point argued for the appellant is that the inam is resumable and conditional on the performance of service and that, on the termination of the service, the inam can be resumed and no occupation is permissible after such termination. I cannot agree that Ex. I is a grant in lieu of wages for services. I think it is clear from Ex. G which is admissible in evidence, that it was intended that the defendants should gat the whole of the produce of the land in question and that a fixed sum for wages was never stipulated for. The Second Subordinate Judge deduces this largely from Ex II. It is contended that from 1892 to 1916 the defendants handed over the lands to the trustees and the latter paid them the produce. But I am inclined to think that the fact is that the defendants were never in occupation of the lands; so long as they received the produce they were entitled to---there was no point in having divided cultivation. We really are thrown back in this case on the terms of Ex. I. It cannot be said that Ex, I does not enter into the case because, although it finds no place whatever in the plaint, it is pleaded in the written statement, and it is perfectly clear that an issue was taken on it. Exhibit I sets out that, in consideration of melam service, the trustees have granted to the 1st defendant's ancestor 10 mahs and 35 kulies of wet and dry lands due for the one-fourth share and the thatched construction and the vacant site and the other lands belonging thereto. The aforesaid ancestor is to reside from son to grandson on succession in the house with thatched construction mentioned thereunder and he has to construct a house for the residence of the dancing girl on the vacant site adjoining the paid construction. For the wages of service and prasadams due every year to the defendant's ancestor he, the latter, shall enjoy from son to grandson the income derivable from the land. This must mean the whole income of the land. I may here express my obligation to the chief interpreter of this Court who at my request has translated the entire document. In default of service the following clause is to have effect;---'If the service (to be rendered) as per the above agreement suffers default either by the said Ramasami or, after him, by his descendants, of the wet and dry lands, etc., and the residential sites, etc., granted by the said Panchayat Panchanadam Pillai and others barring the 'Manaikattu and Kattuthoppu' 'this may mean either ''site and superstructure' or, 'superstructure of the site' but mote probably 'ground and superstructure' inhabited by the said Hamas wami and mentioned herein) the said Ramaswami or his descendants shall give up the rest of the lands to the said Panchayat Panchanadam Pillai and others.' The question is as to the meaning of 'Manaikattu and Kattuthop pu' The chief interpreter says that the more probable meaning is ground and superstructure The superstructure referred to must be the thatched construction referred to in the earlier part of the document, for the house on the vacant site was not at the time of Ex. A constructed, it is said that the defendants have, at their own cost, either entirely replaced or considerably altered the existing house. I think, therefore, that on the best consideration I can give to it the document means that if default is made---as default undoubtedly has been made---in the service, then the defendants should have no longer any right to the income of the lands, but shall be allowed to keep the site and superstructure. In Vadisapu Appandora v. Vyricherlu Veerabha-draraju 12 Ind. Cas. 487 : (1911) 2 M.W.N. 406, it is pointed out that, in the case of a grant burdened with service the grant is not reasonable merely because the necessity for service has ceased, though it will be liable to forfeiture in case of wilful failure in the performance of service. Here there is no finding as to the reason that led to the cessation of the service by the defendants and there is certainly no finding that it was wilful. I think, therefore, that having regard to the provisions of Ex. I it must be held that the plaintiffs have not established a case for the recovery of these sites. One can hardly feel any sympathy for them, for they went to Court apparently; wilfully suppressing the existence of Ex. I. The oral arrangement they set up of 1880 has been found to be false and their case of mere permission or license---unlikely on the face of it---is directly negatived by Ex I.
7. For these reasons I am of the opinion that the second appeal should be dismissed with costs.