B.K. Mukherjea, J.
1. This is an appeal on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of khas possession of the lands in suit on the allegation that the defendants held the same in service tenure on condition of rendering certain menial services to the plaintiff and as there was a refusal on the part of the defendants to render such services since Chaitra 1342 B.S., the plaintiff was entitled to resume the lands. The defence was that one Kailas Chandra De, the predecessor of the defendants, served as a tahsildar of the plaintiff's estate when the plaintiff was a minor and as a reward for his services, the plaintiff's mother on behalf of the plaintiff made a gift of the suit lands to him to be held in raiyati right without payment of any rent. The defendants denied categorically that they or their predecessors rendered any services, menial or otherwise, to the plaintiff. Both the Courts below believed the plaintiff's story and made a decree in his favour. The defendants have come up on appeal to this Court.
2. Mr. Chuckerbutty who appears for the appellants has raised several points in sup. port of the appeal. He has contended in the first place that the entries in the record of rights, upon which both the Courts below practically based their decision, were ambiguous and did not show that the disputed lands were chakran lands which the defendants held as service tenants. Secondly, he has argued that Ex. 1 did not contain any admission as to the lands being chakran lands as was supposed by the Subordinate Judge and that the other document, viz., Ex. 3 upon which he placed reliance was neither legally proved nor was admissible in evidence. His third argument is that even if it was a service tenure, the lower appellate Court ought to have considered the point as to whether this was a grant of land burdened with certain services or there was a grant of an office merely which was to be remunerated by the use of land; and the case could not be disposed of unless there was a decision on this point. The last point taken is that as the service tenure came into existence subsequent to the passing of the Transfer of Property Act, it was necessary under Section 111, Clause (g) of the Act that the landlord should signify his intention to determine the lease by some overt act and unless such overt act was proved, the plaintiff was not entitled to succeed.
3. As regards the first point, both the Courts below have interpreted the entries in the settlement record to mean that the lands in suit were chakran lands which were held by the defendants on terms of rendering services as bhandari. The question is one of inference to be drawn from the statements in the khatiyan and as was held by their Lordships of the Judicial Committee in Anup Mahto v. Mita Dusadh , such inferences are inferences of fact with which the High Court cannot interfere in second appeal. I do not agree with Mr. Chuckerbutty that what the Subordinate Judge meant was that the entries in the record of rights were ambiguous and that the ambiguity was only removed by the alleged admissions contained in the two documents, Exs. 1 and 3, which Mr. Chuckerbutty invites me to discard. The learned Subordinate Judge construed the various items in the khatiyan and came to the definite conclusion that they supported the case of the plaintiff. He went further and said that even if there was any ambiguity in the said records, that were removed by the statements of the defendants' predecessor contained in Exs. 1 and 3. Thus, even apart from the alleged admissions in Exs. 1 and 3, the Subordinate Judge in conformity with the trial Court came to the finding on the basis of the Record of Rights that the lands in suit did constitute a service tenure and unless there was any misdirection on a point of law vitiating his finding, I would consider it to be unassailable in second appeal. The C. S. Khatiyan describes the lands as 'jote chakran Kailas Chandra De' which means that it was a service tenure held by Kailas, the word 'jote' being a perfectly general expression to mean tenancy of any kind. The next item of the entry relates to the status of the holder and it describes the status of Kailas as that of a raiyat. Kailas was a raiyat of the village and the entry might mean that he used the land for agricultural purposes. That he was not described as a settled raiyat or an occupancy raiyat is, in my opinion, important and it rather strengthens the view that the tenancy being a service tenancy, no occupancy rights could be acquired in it. The khatiyan next records that the lands are rent free or niskar and that cesses are payable to the extent of annas 2-6 annually. The entry of 'niskar' is rather ambiguous and fits in with the story of both sides.
4. But Mr. Chuckerbutty contends - and I think not improperly-that the payment of cess is a very material factor which goes to show that the tenant could not but be a cultivating tenant. The Subordinate Judge did consider this matter and he was of opinion that it was not a thing of so much importance as would justify the drawing of an adverse inference against the plaintiff and Mr. Sen suggests that the entry after all may be due to a mistake. Against the remarks column again, the expression 'Chakran Bhandari' is used which indicates clearly the character of the tenancy. I think that the conclusion which the appellate Court has drawn on a consideration of all these different entries is a conclusion of fact and even if there is any error in interpreting a portion of the settlement records, there is no error of law which the Subordinate Judge can be said to have committed. The second point taken by Mr. Chuckerbutty relates to the admissions contained in the two documents Exs. 1 and 3. The Courts below relied upon the statements in both these two documents and, in their opinion, they fortified the inference which they drew from the C. S. Records. Exhibit 1 is a copy of the written statement filed by Kailas, the predecessor of the defendants in Title Suit No. 89 of 1895 in which the plaintiff was a person who held these lands as a sikhdar under the landlords previous to its being let out to the predecessor of the defendants, and Kailas as well as the landlords were made parties, defendants. What Kailas said in his deposition runs as follows:
The plaintiffs having given up sikdari work and relinquished the land, defendants 1 and 2, the landlords, took the said land into their khas possession and began to possess and cultivate the same. Subsequently, in 1298 B.S. I having become candidate for enjoying Plot No. 1 by way of nankar and the landlords, defendants 1 and 2 having given the said land to me for enjoyment as nankar, I, having built a house on Plot No. 1, the bhiti land, since 1298, have been enjoying and possessing the same by way of nankar since the time.
5. What Mr. Chuckerbutty says is this: that the plaintiff in that suit was undoubtedly described to be a sikhdar who held these lands in sikhdari right, but Kailas never said that he too was a sikhdar and held the lands in the same right as the previous tenant. On the other hand, it was expressly stated that he was enjoying the land as a 'nankar' which means nothing else but a rent free tenancy. Mr. Sen who appears for the respondents has argued that the word 'nankar' has got a technical meaning in this locality and means a service tenancy. No doubt the word 'nankar' literally means 'rent free' but whether or not it has a technical meaning in this locality as is suggested by Mr. Sen, I believe that both the parties to the present suit have used it in a somewhat technical sense. The word as used in the plaint and in the written statement seems to suggest that it means a tenancy, where the tenant enjoys the rent as wages for the services he renders to the landlords. The plaintiff in his plaint describes the defendants' tenancy as a 'nankar' and the defendants in their written statement strenuously denied that assertion. The evidence given by the defendants is much in the same strain. The statement therefore in Ex. 1 is not altogether irrelevant and is of some assistance to the plaintiff, however slight that assistance might be.
6. The word 'sikhdar' definitely occurs in Ex. 3 which is an uncertified copy of a deposition given by Kailas in a criminal case. Exception has been taken by Mr. Chuckerbutty to the reception of this document as evidence in the suit. Undoubtedly it was not a certified copy and it can be used as secondary evidence only if it could be regarded as a copy made from or compared with the original as laid down in Sub-section (3) of Section 63, Evidence Act. The man who was alleged to have made the copy is dead and so also is the man who compared it with the original and their signatures only have been proved by the clerk who was acquainted with their hand-writing. I do not think that it has been sufficiently proved in this ease that it was made from or compared with the original and, in these circumstances, I am inclined not to accept it as evidence. But the exclusion of this piece of evidence would not justify me in sending the case back. As I have already said, the Court of appeal below relied upon Ex, 3 as also upon Ex. 1, only by way of corroboration. It had come to an independent finding in favour of the plaintiff on the strength of the record of rights. Even if this copy of the deposition is left out, I do not think it will in any way affect the judgment of the lower appellate Court. On the whole, I am of the opinion that the Courts below were right in holding that the disputed lands were held by the defendants as service tenants on condition of rendering services to the landlord. Whether the defendants who are educated men and occupy decent positions in society did actually render any menial services as late as 1342 B.S. seems to me to be extremely doubtful. But the fact remains that the tenancy is a service tenancy and the defendants are unwilling to render the services. The question now is whether they are liable to be ejected. Mr. Chucker-butty has argued that it was incumbent upon the lower Courts to come to a precise finding as to the nature of the tenure, viz., as to whether it was the grant of a land burdened with the services or the grant of an office which was to be remunerated by enjoyment of land, and without coming to any such finding, they were not justified in making a decree in favour of the plaintiff. The lower appellate Court in its judgment disposes of the matter in the following way:
There is no question whether it was a grant of land or grant of an office as in any case the defendants are to vacate as they are not willing to perform the service and in view of Section 181, Ben. Ten. Act, occupancy right cannot be acquired in service tenure.
7. I think that the law has been stated here too broadly and somewhat inaccurately. If this was a grant of an office, prima facie the lands would be resumable on refusal to perform the services. If it was a grant of land, then the lands could be resumed if only the grantor proved it affirmatively that it was one of the terms of the grant that the continued performance of the services would be a condition to the continuance of the tenure : vide Lakhamgouda Basavprabhu v. Baswantrao and A.J. Forbes v. Meer Mahomed Tuquee ('69-70) 13 MIA 438. In the present case, it seems to me that the plaintiff made a definite case in the plaint that it was the grant of an office and the grantee enjoyed the land in lieu of wages. The defendant denied the allegation in toto and asserted that it was a raiyati settlement pure and simple. It was not their case that it was the grant of land which was burdened with certain service. In these circumstances it was not necessary for the Courts below to go into and decide the question whether what was granted was an office or the land itself. The last point taken by Mr. Chuckerbutty also seems to be without substance. It is no doubt true, as was held in Ramnath Sil v. Siba Sundari ('17) 4 AIR 1917 Cal 116, that if the service tenure was created after the passing of the Transfer of Property Act and the tenant renounced his character as service tenant, the landlord before succeeding in a suit in ejectment must prove that there was an overt act on his part to determine the lease. This point, however, was not raised in either of the Courts below. On the other hand, an express issue raised on the question of notice was abandoned in the trial Court. Had this point been taken at the proper time, the plaintiff would have been able to prove that there was at any rate a demand for. possession which would be quite enough to satisfy the requirements of Section 111 (g), T. P. Act. The result is that this appeal fails and must be dismissed. I make no order as to costs.