1. This is an appeal on behalf of the plaintiff against the judgment and decree of the Additional District Judge of Tipperah reversing those of the Subordinate Judge of that place. The suit out of which this appeal arises was one for recovery of khas possession of certain lands on the allegation that they were chakran lands in the possession of defendant No. 1 and the other defendants who were in possession under the defendant No. 1 deriving title from him. It was alleged that the defendant No. 1 held the lands on service tenure, and that the service was that he was to take the officers and malguzars of the plaintiff's estate across a ferry in the river Gumti near Chandpur to their Jaffarganj Cachery. The learned Judge on appeal has dismissed the suit on certain grounds.
2. It appears to us that the real question for decision in this case was missed by the Courts below. The allegation of the plaintiff was that the lands were held by the defendant No. 1 in lieu of wages. The District Board of that place started a ferry and under the Local Self-Government Act there could not be a ferry within two miles of the District Board ferry and, therefore, the ferry plied by defendant No. 1 had to be closed. The plaintiff, therefore, did not require the services of defendant No. 1 any more, and on that allegation he asked for khas possession of the land in dispute. The defendant No. 1 desired to file a written statement which was too late and so it was rejected. Therefore so far as the defendant No. 1 was concerned the case was heard ex parte. The other defendants contested the suit on various grounds. One said that he did not hold the land under the defendant No. 1. Others admitted that they held the lands under defendant No. 1 but the lands were held by defendant No. 1 in niskar right. The true question that seems to us which arises in the case is that the terms of the grant to defendant No. 1 must first be ascertained. It is found that defendant No. 1 or his predecessor-in-interest had been holding this land for upwards of 40 years. No documentary evidence has been produced to show the terms of the grant, nor is there any oral evidence of any person who can give either primary or secondary evidence of the terms of the grant. The plaintiff has examined some witnesses who were over 60 years of age. They speak in general terms that the grant was made in lien of wages of service. But they do not say that they personally knew about the grant. No special service was assigned to the defendant No. 1. He plied the ferry and from the evidence it appears that he used to levy tolls from all persons who had occasion to use his boat. The only thing which appears from the evidence is that he never used to charge tolls from persons connected with the plaintiff's estate and this was because he held the land in Question.
3. The real question then for decision is whether the lands were held by the defendant No. 1 upon a grant subject to the burden of service or merely in lieu of wages. If the lands were held subject to this burden that he would carry all persons connected with the estate across the ferry without levying any toll upon them, then as long as the holders of the grant are able and willing to perform the service the landlord has no right to put an end to the tenure, whether the services are required or not. In the present case there is no allegation that the defendant refused to perform the service if he was allowed to do so. The terms of the grant are necessary to be ascertained in this case. The proposition is supported by the decision of the Privy Council in Sri Raja Venkata Narasimha Appa Rao Bahadur v. Sri Raja Sobhanadri Appa Rao Bahadur 33 I.A. 46 : 10 C.W.N. 161 : 3 C.L.J. 1 : 3 A.L.J. 55 : 8 Bom. L.R. 1 : 16 M.L.J. 1 : 1 M.L.T 3 : 29 M. 52 : 8 Sar. P.C.J. 897 (P.C.). From the facts which we had to go into, because it was not decided in the Courts below although there is evidence upon which we may come to a conclusion, it appears that not only was there succession without any interruption among the grantees of the land, but the grantee was allowed to sub-let the land to the other defendants, and those tenant-defendants alleged that they have been holding the land for a long series of years beyond living memory, and the other fact which has already been stated above that the defendant No. 1 was not in the exclusive service of the plaintiff for the purpose of plying the ferry. He did it for all people in that locality and the only relation, between the plaintiff and the defendant No. 1 was that he held those lands and his predecessors before him and on that ground he never charged any toll on the plaintiff's people. This does not lead to the inference that the lands were held in lieu of wages.
4. We, therefore, agree with the District Judge although for different reasons. This appeal should stand dismissed with costs.