R.C. Mitter, J.
1. This appeal is on behalf of the plaintiffs in a suit for recovery of possession. Plaintiffs' case is that the lands in suit were made over to the defendants to be held by them in lieu of service to be performed by them, the nature of the service being washing of the clothes of the plaintiffs. The land in suit is plot No. 504 and is admittedly the land used for the purpose of growing crops. The plaintiffs, I may state, are the proprietors of Taluk No. 900, Nos. 1 to 3 having two--thirds share therein and Nos. 4 to 7 the remaining one--third share. Of the three defendants who are washermen by caste, only defendant 1 put in a contest. Her only defence appearing from the written statement was that plot No. 504 along with Plot No. 503 constituted an ordinary tenancy held under the proprietors of Taluks Nos. 900 and 728 at a cash rent of Rs. 3 per year. Her case was not that though she and the other defendants had to render service to the landlords, the plaintiffs, the lands were only burdened with service.
2. Both the Courts below have held that plot No. 504 appertains to Taluk No. 900 alone and the story of the defendant that she held plots Nos. 503 and 504 at a cash rent under the proprietors of Taluks Nos. 907 and 728 is a false one. The Court of first instance held that it was really a service tenure and inasmuch as the defendants have refused to perform the service, plaintiffs are entitled to khas possession. In that view of the matter the learned Munsiff decreed the suit. Defendant 1 preferred an appeal to the Subordinate Judge. The learned Subordinate Judge agrees with the finding of the learned Munsiff that the land in suit, appertains to Taluk No. 900 alone and that the defence of defendant 1 that it along with plot No. 503 constituted an ordinary holding under the proprietors' Taluks Nos. 900 and 728 at a cash rent of Rs. 3 is a false one. But the lower appellate Court starts for defendant 1 a case which she never made in her written statement, a case of which there is no indication either in the judgment of the trial Court. The learned Subordinate Judge held that although no cash money was payable for the occupation of plot No. 504, the defendants had to render service for being allowed to remain in occupation of the same. These services he held were not the sole consideration for this occupation, that is to say, he held that, the land in suit was only burdened with service. For the purpose of coming to this conclusion he relied upon an entry in the record of rights which was put in by the plaintiffs for the purpose of establishing their title to the lands in suit.
3. The entry shows that plot No. 504 is included in Taluk No. 900 of which the plaintiffs are the proprietors and the defendants are in possession. The nature of, their interest is described by two words 'Karsa Chakran'. The learned Subordinate Judge interprets these words to mean a holding burdened with service. I do not agree with the interpretation put by the learned Subordinate Judge on this entry. If that entry has any meaning it means that the lands constituted a service tenure, the character, of the lands being, agricultural lands. I am not however basing my judgment upon the inters pretation put upon the words 'Karsa Chakran'. It may be that these words may have been misconstrued, but that ' would not be a question of law. I do think that the judgment of the learned Subordinate Judge cannot be supported.' because he had no justification to make at the appellate stage for the defendants not only a new case but a case inconsistent with the defence as put forward in the Court of first instance, a defence which has been negatived both by the trial Court and by the lower appellate Court.
4. Mr. Ghose who appears on behalf of the respondents seeks to support the decree of the learned Subordinate Judge on a ground not mentioned in the judgment, but as it is a pure question of law I have allowed him to argue it. Mr. Ghose relying upon the case of Anup Mahto v. Mita Dusadh 1934 P C 5 says that inasmuch as the lands which are in occupation of the defendants are agricultural lands actually cultivated by them, the defendants cannot be ejected, they having acquired occupancy rights therein although the lands were held for the purpose of rendering service. He says that although it may be that the lands were held in lieu of remuneration for the service still the character of the lands being agricultural lands and inasmuch as the defendants are themselves cultivating the same they have acquired occupancy rights. I do not see how the said decision of Sir John Wallis in Anup Mahto v. Mita Dusadh 1934 P C 5 helps Mr. Ghose. There, the plaintiffs held the land under a service tenure. They had let out the same to certain cultivators who were the defendants. Later on, they instituted a suit for possession against the defendants. The defendants set up a plea that they had acquired occupancy rights. The Privy Council held reversing the decision of the Patna High Court that the defence was a valid defence, that is to say, although the plaintiffs held the lands as a service tenure they had let out the lands to the defendants who were agriculturists; the defendants had acquired occupancy rights and there was nothing in Section 181 to prevent the acquisition of occupancy rights by the defendants. That was a case where a question was raised between the service tenure holder and his tenants. It was not a case between the service tenure holder and his landlord.
5. Section 181, Ben. Ten. Act, in express terms, protects the incidents of service tenure from being affected by the provisions in the earlier portion of the Bengal Tenancy Act by which occupancy or other rights are to be acquired. It is one of the incidents of a service-tenure, that is to say, where the land is held really in lieu of remuneration for service that on refusal to render the service the landlord has a right to resume. This right is specially protected by the provisions of Section 181, Ben. Ten. Act, no matter whether the lands are agricultural or not and no matter whether the defendant, the man who is holding on service tenure, actually cultivates it or not. In this view of the matter, I do hold that there is no substance in this contention. The result is that I set aside the judgment and decree of the learned Subordinate Judge and restore those of the learned Munsiff. The appeal is accordingly allowed with costs to the plaintiffs throughout.