1. This is a suit to recover Mas possession of land on the ground that it was held by the defendant on a service tenure, and that the defendant having refused to perform the service the plaintiff is now entitled to recover the land.
2. The Munsif decided in the plaintiff's favour. This decree was reversed by the lower Appellate Court, and the decree of reversal has been confirmed by Mr. Justice Richardson on appeal to this Court: From Mr. Justice Richardson's judgment the present appeal has been preferred.
3. The plaintiff complains that the judgment of the lower Appellate Court leaves it uncertain whether the land has been held as a service tenure or not, and after the best consideration I have been able to give to this case, I think that is made out. There are expressions in the judgment which may go to show that in the opinion of the learned Subordinate Judge the refusal of the services has not been made out, and so no cause of action is established. On the other hand, there is a somewhat uncertain expression to the effect that the Judge was not Satisfied that the defendant was a mujurai tenant and that he was unwilling to render any service except that of a palki-bearer to the plaintiff. There is a source of error larking in that sentence--I am unable to say with anything like confidence what it means; whether it is that the Judge negatives the proposition as a whole or whether he negatives each part of it. This is the result of the unhappy way in which he formulated the question for trial; for these two, we have a compound sentence eminently calculated to lead to an uncertainty as to what the view of the Court was on each of the parts of which that compound is made up. Therefore, in my opinion, the decree of the lower Appellate Court must be set aside, not on the ground that we have now come to the conclusion that it was erroneous, but on the ground that we do not know what it means. The issues by which this case must be determined are these : (I) Is the land in suit the mujurai land of the defendant? (2) If so, what were the services to be rendered by the defendant in respect of that land? (3) Has the defendant refused to perform those services? (4) Is the defendant liable to be ejected, if he has so refused? And (5), if the defendant is liable to be ejected, then on what terms?
4. We must accordingly reverse the judgment of Mr. Justice Richardson as well as the decree of the lower Appellate Court and send back the case to the lower Appellate Court for fresh determination in the light of these remarks.
5. The costs hitherto incurred in this litigation will abide the result.