Prinsep and Ghose, JJ.
1. This was a suit by the Maharajah of Doomraon for recovery of possession of corbain lands. The lands form part of his zemindari, and the action was based upon the allegation that the lands had been granted to one Kangali Dashad, father and ancestor of the defendants, as a jagir in lieu of services as a gorait; that he died in the year 1294 (F.S.), and the defendants having failed to perform the service, their services were dispensed with in 1296; that the lands were then settled with one Raja Koeri, the plaintiff No. 2; that he raised crops thereupon, but was dispossessed by the defendants in July 1890 (1297). The suit was defended by the defendant No. 1, Budhu Dashad, upon the ground that the land had not been granted in lieu of service to Kangali, the father of defendant No. 2, but that since before the accession of the British Government, his ancestors and he had been holding the same as gorait's jagir under a sanad (not produced) granted by a Mahomedan Emperor; that no service had ever been rendered to the plaintiff, the Maharajah of Doomraon, or to his ancestor, in lieu of holding possession of the lands in question, though he had been performing certain quasi-public service; and that in fact, the land did not belong to the Maharajah's zemindari. He also pleaded that the claim was barred by limitation.
2. As regards these two last pleas, it is sufficient to say that they were negatived by the Courts below; and no question has been raised before us with reference thereto.
3. Both the Courts below have dismissed the suit. The Lower Appellate Court, with reference to the question of the incidents of the defendants' tenure, has found that it was not a 'public grant,' but a service tenure created in favour of the contending defendants' ancestor 'long upwards of twelve years ago' for the performance of private work of the zemindar, but that he (the zemindar) did not avail of the contending defendants' services 'of late,' and yet the latter continued to be in possession; and that the tenure descended from father to son. Upon these facts the Subordinate Judge holds, and as he says 'in the absence of satisfactory evidence as to the terms of the grant or contrary,' that it was of a permanent and hereditary character and cannot be resumed by the zemindar at his will, more particularly when the tenure-holder is 'capable and willing' to render services.
4. The distinction between a grant for services of a public nature, and one for services, private or personal, to the grantor, is well understood. In the former case the zemindar is not entitled to resume, while in the latter case he may do so, when the services are not required or when the grantee refuses to perform the services. [See Sanniyasi v. Salur Zemindar I.L.R. 7 Mad. 268; Harrogobind Raha v. Ramrutno Bey I.L.R. 4 Cal. 67; Sreesh Chunder Rae v. Madhub Mochee S.D.A. 1857, p. 1772; Nilmoney Singh Deo v. Government 18 W.R. 321; Unide Rajaha Raje Bammarauze Bahadur v. Pemmasamy Venkatadry Naidoo 7 Moo. I.A. 128.] A distinction also exists between the grant of an estate burdened with a certain service, and that of an office, the performance of whose duties is remunerated by the use of certain lands. In the former case it would seem that the zemindar is not ordinarily entitled to resume, even if the service is not required, if the grantee is willing and able to perform the services, while in the other case he may do so when the office is terminated. [See Forbes v. Meer Mahomed Tukee 13 Moo. I.A. 438 (464) : see also Lilanand Singh v. Munorunjun Singh 13 B.L.R. 124 : L.R. I.A. Sup. Vol. 181.
5. The Subordinate Judge has found that the service tenure held by the defendant was created for the purpose of doing the private work of the zemindar, and that the grant was not for performance of any public service. And there is nothing to shew that the grant was a grant of an estate burdened with the performance of certain services.
6. The question then arises whether the circumstances relied upon by the Subordinate Judge justify the inference (for it is only an inference as we understand his judgment) that the grant was of a permanent character. It seems to us that neither the fact that the land has been allowed to devolve from father to son, nor the fact that the tenure was created very many years ago, nor the circumstance that of late the zemindar did not avail himself of the services but still allowed the defendant to hold on, or all these facts taken together, could legitimately lead to the inference that the grant, which was purely in lieu of personal services to be rendered to the zemindar, was of a permanent character, such that the zemindar is not entitled to resume, though the grantee may refuse to perform the services, or the services may be no longer required.
7. The service grant having been created by the zemindar for personal services to be rendered, he has, we think, a prima facie right to resume the grant when such services are dispensed with [see Sanniyasi v. Salur Zemindar I.L.R. 7 Mad. 268; Mahadevi v. Vikrama I.L.R. 14 Mad. 365]. The defendant has not produced his sanad, nor has he proved that the grant was a grant of an estate burdened with certain services, but he is content with relying upon the circumstances referred to in the judgment of the Subordinate Judge, which in our opinion do not justify the inference that the grant was of a permanent and heritable character.
8. But then it seems to us that the plaintiff is not entitled to resume the grant before he gives to the grantee notice dispensing with his services. The allegation in the plaint is that the defendants were discharged from the office of gorait; but it would appear upon the evidence adduced by the plaintiff that the services of defendant No. 2 were dispensed with because he expressed his inability to perform the services as gorait, and that the defendant No. 1, the real holder of the service tenure, had no notice of the determination of the service, or of the action on the part of the zemindar in settling the lands with plaintiff No. 2.
9. It seems to us, therefore, that the plaintiff cannot recover possession in this action, for he can only do so by determining the service tenure held by the defendant No. 1. Upon the judgments of the Courts below, and upon the case of the plaintiff himself, that tenure has not yet been determined; the plaintiff has not given to the contending defendant any notice to quit, nor is there any allegation, much less evidence on his part, that the defendant has declined to perform the services for which the tenure was created; though no doubt the defendant by his written statement has clearly indicated that he is not willing to render any services to the plaintiff. In this view of the matter, we are of opinion that the claim for ejectment fails. We, however, think that, as the question of the character of the tenure held by the defendant No. 1 was raised in issue between the parties and dealt with by the Courts below, it may be declared, as has already been expressed, that the tenure in question is a service tenure created in lieu of private services to be rendered to the zemindar, and that the tenure is not of a permanent character.
10. Each party will bear his own costs throughout this litigation.