Venkatasubba Rao, J.
1. The plaintiffs who are the inamdars of Lupuchendrapet seek to resume the plaint land which was granted for mudum service and to recover possession of it with mesne profits. The defendants contend that the land has been in the possession of their family for about 150 years and that they are entitled to enjoy it so long as they are able and willing to perform the duties of mudum, that there has been no default and that the land cannot therefore, be resumed.
2. The District Munsif has found that the land is not resumable and the Subordinate Judge has confirmed this finding.
3. The plaintiff has filed the present appeal. The lower Appellate Court on a review of the whole evidence has come to the con- -elusion that the grant cannot be resumed.
4. This is what the learned Judge says: 'I am not satisfied on the evidence that the iman is resumable.'
5. The appellant asks me to reverse this finding.
6. The learned Judge has also found that there has been no default on the part of the defendants and the correctness of this part of his judgment has not been questioned.
7. In arriving at his conclusion that the grant is not resumable, the Subordinate Judge has relied to some extent upon the conduct of the plaintiffs as disclosed in various proceedings and upon the incongruous statement which they made from time to time. He has also relied upon the fact that the defendants have expended money and dug a well. Further, the defendants and their ancestors have been long in possession and the second witness for the plaintiff who is 70 years old has admitted that the grant was made before his time.
8. Mudam's duties are said to consist in looking after the harvest of the crops, watching the heaps of harvested produce placing seals upon them, preventing removal of cow-dung from waste lands and general supervision of harvest operations. The first witness for the plaintiff admits that the inamdars as well as the ryots are interested in the performance of these duties. I need not go more minutely into the evidence. Although the Subordinate Judge refers to certain authorities which contain observations regarding onus of proof, he has not himself decided the case with reference to any presumptions. His finding is the result of his appreciation of the evidence independent of the rule of onus of proof. It has not been shown that his finding is wrong or vitiated by any mistake and I must, therefore, accept it in second appeal.
9. Regarding the nature and incidents of service tenure and the presumptions that may be drawn in dealing with such tenures, there has been a fairly long argument before me. I shall, therefore, proceed to discuss these points. The finding that the land is not resumable implies that the grant was burdened with service.
10. To determine whether the grant is resumable or not regard must be had to the nature of the tenure. Was the grant made in lieu of wages for service or was it an absolute grant subject to the condition of the performance of the service. First, dealing with grants of the former description, the relation between the grantor and the grantee is that of master and servant., Instead of remunerating the servant by wages the master grants land to him and treating the rent payable as equivalent to wages, the grantor makes a remission of the rent. The contract, however, is, in essence, one of service and as the master can on terminating the employment cease to pay wages, in like manner he may resume the grant oh dispensing with services. The servant cannot compel his master to continue to employ him on the score that he is willing and able to serve.
11. Now let me turn to the second description of grants, those burdened with service. The position here is that there is an absolute grant but a condition is annexed to it. On the breach of the condition, the grant may be resumed. The condition...being the rendering of the service, if the grantee commits default in its performance, the grantor becomes entitled to, resume the grant. The mere fact that the grantor no longer requires service does not give him the right to resume the grant. Whether he requires the service or not as immaterial, the only question being whether there has been default on the part of the grantee.
12. It is also recognised that in the case of: a grant burdened with service, it maybe made a condition of the grant that it should cease when the services are no longer required, But in the absence of a provision to that effect, land held under that grant is not resumable unless the grantee commits default. This does not affect the main division, of the grants under two headings, namely, those burdened with service and those made in lieu of wages : see Forbes v. Meer Mohomed Tuquee 13 M. I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R 614 Lakhamgavda v. Keshav Annaji 28 B.305 : 6 Bom.L.R. 364 and Yellava Sakreppa v. Bhimappa Gireppa 28 Ind. Cas. 13 : 39 B. 68 : 17 Bom.L.R. 128.
13. Where there is a grant in writing and it is produced, on a construction of it will depend the nature of the tenure, whether the grant was made in lieu of wages or was burdened with service. But, where, as in the present case, either the original grant was not in writing or in any event is not before the Court, the nature of the tenure can be determined only on the evidence given. The Subordinate Judge agreeing with the Trial Court has found on the evidence that the grant is not resumable. Where an inference is drawn from certain facts or circumstances, it must be shown that the lower Appellate Court has made some mistake before its finding can be set aside in second appeal. I am not satisfied that the appellant has succeeded in showing that the finding is liable to be reversed.
14. The appellant's learned Vakil has contended that this appeal ought to be decided with reference to two presumptions, one of them broad, the other more limited. When the question arises as to the class to which a specified grant belongs he contends that it should be presumed that the grant was one made in lieu of wages for services. Putting it in other words, the grantor has only to come to Court and show that it is a service grant. Nothing further need be done by him and the Court is bound to presume that the grant was in lieu of wages. The next presumption which he asks should be drawn is, that when the grantor proves that the services are personal, the Court should infer that the grant was made in lieu of wages. The range of this presumption is somewhat more limited for, this assumes that the grantor has at least to prove one fact, do nothing more and the Court will at once presume that the grant is resumable.
15. For making either of these presumptions, I do not believe there is the slightest ground. Presumptions are not made at random. Some connection must be shown to exist between the fact proving and the fact to be proved, which warrants an inference from the one to the other when the two are brought into proximity. On many and varied circumstances may depend what kind of grant a man may choose to make. To presume at the very outset of a case that the grant is one in lieu of wages, does not seem to be in conformity with reason.
16. The second presumption referred to is, in my opinion, also opposed to reason. Having regard to the springs of human action, can it be said that a man is less likely to make an absolute grant burdened with personal service, or again can it be said that when services are of a public nature there is any strong impelling motive for not making the grant in lieu of remuneration for those services? There exists thus on principle no ground' for making either of the two presumptions I am also satisfied that this is the position -established by authority.
17. Before discussing the cases on the point, I should like, in order to remove a confusion that prevails, to refer to a presumption that is permissible and has often to be drawn. When a zemindar seeks to resume a grant, the question arises, is the land included in the zemindari? This will depend upon whether the revenue from the land was or was not included in the assets of the zemindari at the time of the settlement. If it was included, the right of resumption would be with the zemindar, it not, he would not have the right. If there is no direct evidence to show whether the revenue was or was not included, you may turn to the nature of the services as they may furnish a clue. If the services were personal to the zemindar, it may reasonably be assumed that the Government would not have exempted the land from the re-venue but would have treated it for the purpose of the settlement as revenue paying land. The reason is obvious. It was the zemindar that had the benefit of the services and there would be no reason why the Government should not assess the land ' to the revenue for the services were after all an equivalent of the rent. A presumption is, therefore, made that when the services are proved to be personal, the right of resumption, if it exists vests in the. zemindar. This is the presumption that decided cases very often refer to and this presumption and its implication are misunderstood and some loose thinking has, I am afraid, given rise to some laxity of expression.
18. I shall now examine the cases on the point Forbes v. Meer Mahomed Tuquee 13 M. I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R 529 : 2 Suth. P.C.J. 358 : 2 Sar.P.C.J. 588 : 20 E.R 614 is one of the earliest and most authoritative of, the decisions. The zemindar sued for the resumption of a jagir. Their Lordships of the: Judicial Committee dealt with two questions (1) regarding the nature of the tenure on which the lands were held; (2) whether the jagir lands were made the subject of assessment at the settlement. Having held on the second point that the jaghir was included in the zemindari their Lordships [ proceed to ask the question: 'But is it a necessary consequence of this finding that the appellant is entitled to resume these jagir lands?'. They then observe that his right to do so must depend upon 'the nature of the tenure. They distinguish between the two categories of grant and conclude that the grant before them is one burdened with service. In the course of the discussion they observe that the grantees they were dealing with, were not the private servants of the zemindar. But they do not anywhere say that if the services were private or personal, there would arise a presumption that the grant was made in lieu of wages. On the contrary, in the concluding paragraphs of their judgment, they remark that, it being emphatically upon the zemindar who is seeking to dispossess or to rack rent the grantees to make out a clear title to resumption, he, in their opinion, failed to discharge the onus and his suit was, therefore, dismissed. This case, therefore, far from recognising the rule of presumption contended for by the appellant, clearly lays down that the rule is the other way, namely, that the onus of proof is upon the grantors claiming resumption.
19. Lakham Gavda v. Keshavannaji 28 B.305 : 6 Bom.L.R. 364 is a suit by an inamdar to resume lands alleged to be held on service tenure. Jenkins, C.J., and Chandavarkar, J., assume for the purpose of their judgment that the tenure was connected with services and proceed to examine if the plaintiff was entitled to resume. They refer to Forbes v. Meer Mahomed Tuquee 13 M. I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R 529 : 2 Suth. P.C.J. 358 : 2 Sar.P.C.J. 588 : 20 E.R 614 and the classification of giants adopted in that case, and in the end dismiss the plaintiff's suit observing that it lay upon him to make out that the combination of the grantee's interest and his obligation to serve was such, as to permit of resumption. This case follows the Privy Council decision and holds that the onus is upon the party claiming the right to resume.
20. A contention similar to the one advanced by the appellant was raised in Yellava Sakreppa v. Bhimappa Gireppa 28 Ind. Cas. 13 : 39 B. 68 : 17 Bom.L.R. 128. The learned Judges rejected it saying that there is no presumption that where the services are personal, the grantor has a right to resume the land. They say that this is the Bombay Law, though they add very guardedly, that the law is possibly different in Calcutta and Madras. This does not show that the law is in fact different in these Provinces but it clearly shows that in Bombay such a presumption is not drawn.
21. The question again arose in Chandrappa v. Bhima Dassappa 47 Ind. Cas. 330 : 43 B. 37 : 20 Bom. L.R. 779. Beaman, J., refuses to recognise any such distinction between public and private services remarking that the distinction attempted is vicious.
22. In Baslingappa v. Chandrappa 35 Ind. Cas. 860 : 18 Bom.L.R. 695 it was again held that the onus is upon the plaintiff seeking to resume.
23. With reference to the observation in Yellava Sakreppa v. Bhimappagireppa 28 Ind. Cas. 13 : 39 B. 68 : 17 Bom.L.R. 128 that possibly the law in Madras is different, I must point out that Lakham Gavda v. Keshavannaji 28 B.305 : 6 Bom.L.R. 364 has been followed in the Province in Ramasami Pattar v. Lakshmi Kuarassiar 72 Ind. Cas. 627 : 17 L.W. 514 : (1923) M.W.N. 343 : 32 M.L.T. 399 : A.I.R. 1923 Mad. 572, and that Yellava Sakreppa v. Bhimappa Gireppa 28 Ind. Cas. 13 : 39 B. 68 : 17 Bom.L.R. 128 has been referred to and followed by Seshagiri Aiyar, J., in Kamaravutu Mrutyunjayadu v. Rajah of Pittapuram : (1916)30MLJ132 . It cannot, therefore, be said that the Madras Law is different from the Bombay Law on this point.
24. Radha Pershad Singh v. Budhu Dashad 22 C. 938 : 11 Ind. Dec. (N.S.) 622 relied on by the appellant proceeds, with all respect, on a misconception. In it, a two-fold classification of grants is made. First, it is said there is a distinction between a grant for services of a public nature and a grant for services of a private nature. In the former, the zemindar cannot resume while in the latter he may. Secondly, it is said, that there is a distinction between grants of an estate burdened with some service and grants in lieu of wages. This twofold classification is, in my opinion, unnecessary and loses sight of the real principle involved. The main division as pointed out by Beaman, J., in Chandrappa v. Bhima Dassappa 47 Ind. Cas. 330 : 43 B. 37 : 20 Bom. L.R. 779 is that of grants burdened with service and that of grants by way of wages for service. Each of these two main categories may again be sub-divided according to the nature of the services, personal or public. The judgment in Radha Pershad Singh v. Budhu Dashad 22 C. 938 : 11 Ind. Dec. 622 loses its value by reason of this mistake and I am not prepared to agree with the view that when services to be rendered are personal, the grantor has a prima facie right to resume the grant. It further seems to me that Radha Pershad Singh v. Budhu Dashad 22 C. 938 : 11 Ind. Dec.622 is opposed to the authority of the Privy Council in Forbes v. Meer Mahomed Tuquee 13 M. I.A. 438 : 14 W.R.P.C. 28 : 5 B.L.R 529 : 2 Suth. P.C.J. 358 : 2 Sar.P.C.J. 588 : 20 E.R 614.
25. If the Madras cases are examined, they do not support the appellant's contention. The sentence in Sanniyasi Razu v. Salur Zemindar 7 M. 268 : 2 Ind. Dec. 771 that is relied on reads thus:
It is ordinarily competent to a zemindar to dispense with such services and to resume the tenure'. This may only mean that if the grant is in lieu of wages it may ordinarily be resumed. There is nothing to show that the learned Judges meant to say that if the services are personal, they would presume that the grant was one made in lieu of wages. I cannot regard this as an authority for the proposition contended for.
26. In Mahadevi v. Vikrama 14 M. 365 : 5 Ind. Dec. 255. the following passage is relied on:
Now it is admitted, on behalf of the appellants, that, if the land was held on service tenure, it is resumable at the will of the reminder for the time being in possession.' What is the tenure that is referred to in the above passage? All lands held on service-tenure are not resumed.
27. There are two lands of service-tenures. The learned Judges were presumably referring to grants made in lieu of wages. The words literally taken mean that both kinds of grants are resumable which, of course, is not the case. I am unable to see how this supports the appellant's contention.
28. In Sri Rajah Sobhnadri Appa Rao Bahadur v. Sri Rajah Venkatanarasimha Appa Rao Bahadur 26 M. 403. there is an observation at page 408 that it is for the grantee to make out that the land is not resumable. This case went up to the Privy Council and the decision of the Madras High Court was confirmed. But their Lordships of the Judicial Committee while agreeing with the conclusion of the learned Judges, observe that their judgment does not imply that they adopt in entirety their reasoning. This is an important reservation and must not be lost sight of.
29. In Vadisapu Appandora v. Vyricherla Veerabhadra Raju Bahadur 12 Ind. Cas. 487 : (1911) 2 M.W.N. 106 : 10 M.L.T. 391 there is a passage at page 408 to the effect that in this Presidency there is a series of decisions and that where a land granted on service tenure was included in the assets of the zemindari at the time of the settlement there is a presumption that the zemindar can resume. This only means that if the question is between the zemindar and the Government as to who has the right to resume, the fact that the land is included in the zemindari, indicates that the right vests in the zemindar. This passage does not help the appellant. There is another passage page 409 where the learned Judges say that in the case of a grant subsequent to Permanent Settlement to which personal services are attached, the burden of proving that it is not resumable is on the grantee. In the first place, with all respect, I cannot accede to this proposition. Secondly what difference does it make in regard to the present question, whether the grant was prior to or subsequent to the Permanent Settlement.
30. There is one other case cited by the appellant to which I must refer. In Gajapathi Maharaju Garu v. Sondi Prahaladha Bissoyi Ratno 21 Ind. Cas. 833 : (1914) M.W.N. 179 : 14 M.L.T. 562 Ayling, J., observes at page 180 that the services are of a personal character and for that reason the inams are resumable by the zemindar. This observation if I may say so with respect, is not quite accurate and I may point out that in a later case the same learned Judge expresses his view somewhat very differently. In Mrutijunnjayadu v. Raja of Pittapuram : (1916)30MLJ132 Ayling, J., differing from Sadasiva Aiyar, J., observes: 'I can find no authority for holding that the nature of the services makes any difference in the case of such a grant, though in the case of a service grant, where lands are held and enjoyed in lieu of wages, the power of arbitrary resumption would largely turn on whether the services were private or public.'
31. By reason of the difference of opinion there was a Letters Patent Appeal and Seshagiri Iyer and Phillips, JJ., held, Sir John Wallis, C.J., dissenting, that the grant was a grant burdened with service and was not resumable. The judgment of Ayling, J., was upheld. Sashagiri Iyer, J. at page 144 observes:
The next contention is that as the service was personal it was open to the zemindar, to dispense with it and to resume the land. Here again, it is not in every case of personal service that the grant can be resumed.
32. It is thus clear that both on principle and on authority, neither of the presumptions contended for by the appellant can be accepted. The plaintiff who seeks to resume must make out his title.
33. As the appeal has been argued at some length, I have reviewed the law and shown what, in my opinion, the right principle is. But as I have said, the lower Appellate Court has not considered the case with reference to any rule of onus of pre of, but has, on the other hand, arrived at a finding on a consideration of the entire evidence. Whether my view is correct or not, it follows that the judgment of the Subordinate Judge must stand. The second appeal fails and is dismissed with costs.