1. Appeal against the Decree of Sri K. C. Mukherjee, Additional Judge, 2nd Court, Chinsurah, Hooghly in Title Appeal No. 283 of 1966 dated the 10th day of Feb. 1963 affirming the decree of Sri S. K. Mitra, Munsif, 1st Court, Chandarnagore, dated the 31st day of May, 1966.
2. This appeal is directed against the judgment and decree passed by the learned lower appellate Court in Title Appeal No. 283 of 1966 affirming the judgment and decree passed in Title Suit No. 154 of 1965. The suit was filed by the plaintiffappellant for declaration of title and recovery of possession in the disputed property which is dag No. 335 in Mouza Anandanagar. This land belonged to one Bishnupada Maity and his aunt Badammoyee Dassi in moity shares. On the death of Badammoyee, who had no issue,Bhishnupada possessed the entire land as a tenant. In lieu of rent, he used to supply fruits to the deity Shib Thakur for one day during Gajan. It was a grant of land which he enjoyed burdened with service. After the Estates Acquisition Act, the tenancy vested in the Government of West Bengal and Bishnupada continued to pay rent directly to the Government of West Bengal after rent was assessed from 18-5-1962. While in possession and enjoying the tenancy, Bishnupada sold his interest to one Kishori Mondal, who in his turn, transferred the property to the present plaintiffs on 15-6-62 by a Kobala. The defendant-appellant forcibly dispossessed the plaintiffs respondents from the disputed land and cut away the jute grown by him and hence the suit.
3. The case of the defendant-appellant is that, he is the shebait of the deity Shib Thakur; that Bishnupada Maity enjoyed Chakran and the service that was allotted to him was to collect fruits for Bhog of the deity on Gajan day for which he was remunerated by the usufructs of the land in dispute which was resumable for non-performance of the duty allotted to him. As Bishupada left the place 28/30 years ago without making any arrangement for Bhog of the deity, the shebait re-entered the holding which was abandoned by Bishnupada and since then, it has been in possession of the deity through a Bargadar. The learned Judge considered the case of the plaintiff-respondent that Bishnupada used to supply fruits in lieu of rent and also the contrary version of the defendant-appellant that it was in lieu of service of supplying fruits to the deity on Gajan day that he was remunerated by the usufruct of the land. The learned Judge relied upon the oral evidence adduced by the plaintiff supported by the plaintiff himself and came to the conclusion that the Chakran which was being held by Bishnupada was not a grant of Office under the deity, but a grant of land burdened with service, namely, supplying of fruits for the Bhog of the deity Shib Thakur and for only one day during the Gajan. He also relied upon the entries in the O. S. and R. S. records Exts. 4A and 5 wherein the interest of Bishnupada and Badammoyee was described as 'Chakran Dakhalkar' and also there was an entry in the last column as 'Shiber Bhoger Jannaya'. In the R. S. records, the interest of Bishnupada was described as 'Dakhalkar Chakran' and rent was assessedfor the same. In this connection, the learned Judge relied upon the case reported in 60 CWN 385 where it has been held that where the interest of a person described as 'Chakran Kamar' and holding the land as 'Niskar Bhog Dakhali Right' it was nothing, but a grant of land burdened with service and not a grant of office to be remunerated by land. The ruling reported in 61 CLJ 143 was ignored by the learned Judge as being inapplicable to the facts of the present case. The ruling reported in 70 CWN 652 was also held by the learned Judge to be inapplicable to the case under consideration and the learned Judge ultimately came to the conclusion that Bishnupada enjoyed a grant of land burdened with service and not an office under the deity remunerated out of the usufruct of the land. On a consideration of the facts also, the learned Judge came to the conclusion that the plaintiffs' witnesses were more reliable than those of the defendant. The learned Judge was not satisfied with the case of the defendant inasmuch as the Account Books which were material for the purpose of proving that the land was resumed of the defendant-shebait were not proved. Ext. A, the judgment of a Magistrate's Court, in a criminal case between the same parties was also irrelevant for the purpose of deciding who was in possession of the land at the relevant time. Accordingly, the learned Judge affirmed the findings of the learned Munsif and dismissed the appeal of the defendant appellant. The defendant-appellant has preferred this Second Appeal.
4. Mr. Sengupta, the learned Advocate for the appellant, has argued that the learned Judge erred in coming to a finding that the shebait defendant did not examine himself in Court when in fact he is D. W. 1 in the case. Apart from this, the learned Judge misconstrued the value to be attached to the entries in the C. S. and R. S. Records of Right and thirdly, the learned Judge relied upon the decision reported in 60 CWN 143 the principle laid down therein is inapplicable to the facts of the present case. He has however relied upon the decision reported in 70 CWN at page 652 to hold that the facts disclosed in the present case make out a case of a service tenure, i.e. grant of land burdened with the obligation to do some service, namely, to supply fruits during the Gajan once a year. That is a condition imposed upon the grant of land and non-failure to perform the conditionwoud not entitle cancellation of the grant as the same is permanent grant heritable and transferable. The decision reported in 70 CWN. 652 cannot override the decision of a Division Bench in 60 CWN 385. In this decision, it has been laid down the very fact that the name of a person is recorded in the column for showing the status of that person in relation to the land in question shows that he has some interest in the land which would not be the case, if it was grant of an office remunerated with enjoyment of usufructs of some land. In the latter case, non-performance of the condition would result in resumption of the land by the owner. In such a case, it is not a service tenure, but an office for which no remuneration is fixed and the person performing the duties of that office gets a right to enjoy the usufruct of the land allotted to that person so long as he performs his duties attached to his office. Both the courts below have on a consideration of the oral and documentary evidence came to a finding that the appellant's claim of having resumed the land after it was abandoned by Bishnupada, has no substance and Bishnupada in fact, had been awarded a grant of land burdened with service. Accordingly his name was recorded in the C. S. and R. S. Records of Right as 'Chakran Dakhaldar' which would not had been done had he been holding an office only remunerated by enjoyment of the land. This finding, I do not think it necessary, to disturb being a finding of fact arrived at by the two courts below.
5. Accordingly, I dismiss the appeal without cost after affirming the judgment and decree passed by the learned lower appellate court.