Brajasundar Deb Pltf.-Applt. v. Binode Rout And Others Defts.Resps.

Narasimham, J.:— This is an appeal from the appellate judgment of the District Judge, Cuttack, reversing the judgment of the Munsif, Cuttack, and dismissing the suit brought by the plaintiff-appellant for eviction of the defendants from certain plots appertaining to khata no. 197 in village Deulsshi and for other consequential reliefs.

2. The plaintiff is the proprietor of Aul estate and village Deulsahi is within his zamindari. In the last settlement (1922-32), the said khata (Ex. 6) was recorded in the names of defendants 1 to 4 as ‘sthitiban’ with a rental of Rs. 11-7-0 but it was further noted that the rental was fixed at a low figure in view of the rendering of ‘chela’ service by the tenants to the zimindar. In the Revision Settlement re-cords-of-rights finally published in 1911 (Exs. 5 & 5-a) the same rental was shown as payable; but as regards the status of the tenants the following entry was made: ‘Chela jagiri ghenan”. The plaintiff's case as set forth in the plaint was that the disputed lands were given as jagir (service tenure) to one Dinabandhu Dakhinkabat in lieu of remuneration for services which he rendered to the Zamindar as ‘chela’ and that a nominal quit rent (ghena jama) of Rs. 11-7-0 was fixed because of the services rendered by the tenant to the landlord. Subsequently the said Dinabahdhu Dakhinkabat failed to pay even the quit rent and thereupon the Zamindar brought the property to sale in execution of a rent decree. Defendant 1 purchased it and continued to perform the services as ‘chela’ to the Zamindar and remained in ??? of the lands. During the last settlement, however, the said defendant fraudulently got the lands entered as his ‘sthitiban’. The plaintiff, however, maintained that the land's were granted on pure service tenure and that the plaintiff was entitled to resume the same and eject the defendants in consequence of their failure to render the services. The defendants' case, however, was that the lands were settled with the ancestors of Dinabandhu Dakhinkabat by the ancestors of the plaintiff more than 100 years ago on tenancy rights; but that the rent was filed at a low figure because of the services rendered by the tenant to the zamindar. The stipulation, however, was that if the services were not rendered the zamindar would be entitled to assess the lands to fair rent. The defendants claim that the current settlement entry recording them as ‘sthitiban’ was correct and that the plaintiff was in no case entitled to evict them from the lands though he may seek for assessment of fair rent in view of the fact that services are no longer rendered by them.

3. The plaintiff has miserably failed to prove the case as set forth in his plaint. There is absolutely no evidence on record to show that the disputed lands were granted to Dinabandhu Dakhinkabat as ‘jagir’ by way of remuneration for the services rendered by him to the zamindar as “chela’. The only witness examined by the plaintiff, namely, Kesbahanand Das (P.W 1) frankly admitted in his cross-examination that he entered the services of the plaintiff only in 1921 and that he had never seen the said Dinabandhu Dakhinkabat. He also admitted that there were no papers in the zamindar's shirasta showing the settlement of the lands of jagir with the said Dinabandhu or the rendering on services by the said Dinabandhu to the zamindar. Thus there is neither oral nor documentary evidence to prove the actual origin of the tenancy. The learned Advocate on behalf of the plaintiff, has, however, relied mainly on the settlement entries (Exs. 5, 5a and 6) and certain admissions made by defendant 1 in his pleadings and in his evidence.

4. In a case of this type where the right of the tenant 13 associated with the rendering of service to the landlord, the main question for decision is whether the lands were originally granted burdened with service or else whether the original grant was merely of an office to be remunerated by the use of certain lands. The distinction between these two classes of grants was pointed out by the Privy Council as early as 1870 in Alexander John Forbes v. Meer Mahomed Tuquee, 13 M.I.A 438 : (5 Beng. L.R 529 P.C) and reiterated in Lakhamgouda v. Baswantrao, A.I.R(18) 1931 P.C 157 : (132 I.C 736). I may quote the following passage from the latter decision:

“The distinction to be borne in mind is between the grant of an office to be remunerated by the use of land and the grant of land burdened with service. In the former case the land will prima facie be resumable, in the latter case prima facie it will not but the terms of the grant or the circumstances in which it was made may establish a condition of the grant that it was resumable. The onus will be upon the grantor to make out such a condition.”

5. To a similar effect are the observations of the Bombay High Court reported in Lakhamgavda Basaprabhu v. Keshan Annaji, 28 Bom. 305 : (6 Bom. L.R 364).

6. It is, therefore, necessary to consider how far the settlement entries and the other pieces of evidence adduced in the case show that the landlord is entitled to resume the lands and evict the defendants therefrom. In the current settlement it is clearly noted that the status of the tenants is ‘sthitiban’. That expression means ‘status of settled raiyat’ (see Appen. 18 to Dalziel's Settlement Report). Doubtless it was further noted that the rent payable was fixed at a low figure because of the ‘chela’ services rendered by the tenant to the landlord. It was argued that this entry regarding the performance of service to the landlord was inconsistent with the status of the tenant as ‘sthitiban’ and that consequently the said current settlement entry may be deemed to have been rebutted by the other entries in the khatian itself. In support of this argument reliance has been placed on Sankar Malik v. Braja Sunder Deb, A.I.R(27) 1940 Pat. 587 : (191 I.C 89) in which also similar entries in respect of a service-tenure in the same zamindari were held to be inconsistent. That case is doubtless distinguishable from the present case on facts because in that case apart from the settlement entry there was other evidence, (which was accepted by the Courts) to the effect that the lands were settled with the tenant on condition of his rendering service. But apart from this distinction on facts, with great respect to the learned Judge who decided that case, I cannot accept the view that the two entries in the settlement khatian are inconsistent. The status of a tenant as a settled raiyat is in no way inconsistent with his paying leeser rental than the fair rent because of the services rendered by him. There is no provision in the Orissa Tenancy Act which prohibits a settled raiyat from entering into a contract with his landlord for a substantial reduction in the rent of his holding in lieu of the services rendered by him to the landlord, Neither S. 28 nor S. 232 operates as a Bar to such a contract and on the other hand the definition of the expression ‘tenant’ given in S. 3(23) shows that such a contract is possible. The reason as to why an entry of the above type was made by the settlement authorities in the zamindari of Aul will be clear from a perusal of Paras 60 and 395 (pp. 22 and 139) of Mr. Dalziel's Settlement Report. The settlement authorities were fully aware of the distinction between ‘the grant of land in lieu of services’ and ‘the grant of land burdened with services’ and they made careful enquiries with a view to ascertain whether the lands were originally settled as raiyati holdings and then a portion of the rent was commuted to service or else the lands were held purely on condition of rendering service. In the former class of cases they gave the raiyati status to the tenant: In the latter class of cases, however, the lands were shown as ‘jagir’ resumable by the landlord when the services were no longer required. I may as well quote the following passage from para 395:

“The main question of status that arose at attestation was concerning the recording of the so-called ghenan jagirdars who are common in this estate. These persons perform services and also pay quit rents, and an enquiry was made as to whether they were really jagirdars or ordinary raiyats performing service in lieu of rent. Many such tenants were recorded as settled raiyats at attestation but at S. 116 stage the landlord succeeded in most cases in getting the status changed to jagir, the tenants themselves presenting little opposition.”

7. Thus from the Settlement Report itself it is clear that the settlement authorities made careful enquiries and recorded such tenants as ‘sthitiban’ only when they were satisfied that the Tenancy was originally created as a raiyati holding and there was a commutation of rent to service. In fact the Zamindar of Aul hotly contested the proceedings before the settlement authorities and in several instances got the entries corrected but so far as the present khata No. 195 was concerned his objection was disallowed (Ex. B). The settlement entry is thus not based on any mistaken view of law (as has been inferred in some unreported decisions of the Patna High Court) but it is based on a careful enquiry regarding the origin of the tenancy in every individual case. Consequently, the presumption of correctness under Section 117(3) of the Orissa Tenancy Act, applies with great force and a very heavy burden is cast on the plaintiff to rebut this presumption by reliable evidence.

8. The next question for decision is whether, the presumption of correctness attaching to the settlement entry has been rebutted by evidence. I have already pointed out that on the plaintiff's side there is no evidence worth the name to show the origin of the tenancy. Similarly, his reliance on the evidence of defendant seems futile. Defendant 1 himself has no personal knowledge of the origin of the tenancy. All that he has stated is that he never performed any service to the landlord. In his written statement also he never admitted that the lands were settled with the ancestors of Dinahandhu Dakhinkabat by way of remuneration for services to be rendered by them to the Zamindar. On the contrary, his clear case was that the lands were settled with them on tenancy rights; but that the rent was fixed at a low figure in view of the services rendered and the agreement was that the rent may be enhanced to the prevailing rent of the locality if the services were no longer required. I do not find anything either in the written statement or in the evidence of defendant 1 which would go to support the plaintiff's case or rebut the settlement entry.

9. It is an admitted fact that the suit lands were put up for sale in execution of a decree for arrears of rent due thereof and purchased at Court auction in 1924 by defendants 1 to 4. The previous tenant was one Dinabandhu Dakhinkabat whose name stands recorded in the Revision Settlement Khatian. The conduct of the landlord in his bringing the tenancy lands to rent sale shows unmistakably that he recognised the existence of a saleable interest in the lands of the tenant. If, as now claimed by the landlord, the tenancy was resumable being a pure service-tenure, it is inexplicable as to why he brought the lands to sale instead of suing for ejectment of the service tenant. In a pure service-tenure resumable at the will of the landlord, there can be no saleable interest vested in the tenant, and his interest (if any) will not be attachable under Section 60(1)(f) of the CPC. Omprasad v. Rahimoddin, A.I.R(33) 1946 Nag. 147 : (I.L.R (1946) Nag. 112) and Neti Anjaneyalu v. Sri Venugopala Rice Mill Ltd., 45 Mad. 620 : (A.I.R(9) 1922 Mad. 197 F.B). That section applies to rent suits also by virtue of sub-s. (2) of Section 192 of the Orissa Tenancy Act. Thus the conduct of the landlord in bringing the property to sale for arrears of rent due thereof in 1924 is consistent with the current settlement entry recognizing the tenant to have the status of a settled raiyat and is totally inconsistent with the present claim of the landlord to resume the tenancy on the termination of the services by the tenant.

10. It was next argued that in the Revision Settlement Khatians (Exs. 5 and 5A) the tenancy was clearly noted as ‘chela jagiri ghenan’ and that nothing has intervened between the date of the final publication of the Revision Settlement record-of-rights of 1911 and the date of the final publication of the Current Settlement record-of-rights (about 1930) to change the status of the tenants. The presumption of correctness, however, attaches only to the Current Settlement record-of-rights and as regards the previous record-of-rights the proviso to sub-section (3) of Section 117 of the Orissa Tenancy Act, says that such entry shall be admissible as evidence of the facts existing at the time such entry was made. Therefore, an entry in an earlier record-of-rights will not by itself be sufficient to rebut the presumption of correctness in the later record-of-rights. The various cases on which Mr. Mohanty has relied as regards the relative value to be given to conflicting entries in two records-of-rights (Raghunath Misra v. Ram Behera*, A.I.R(9) 1922 Pat. 548 : (1 Pat. 167), Abhiram v. Chintamani, A.I.R(14) 1927 Pat. 164 : (6 Pat. 342) and Naurangi v. Kanhaiya, A.I.R(17) 1930 Pat. 568 : (123 I.C 390)) all relate to the corresponding provisions either in the Bengal Tenancy Act or in the Bihar Tenancy Act which are, however, inapplicable to the present case. In those Acts, there is no express provision in the statute itself regarding the value to be attached to previous settlement entries and there is no provision corresponding to the proviso to sub-s. (3) of Section 117 of the Orissa Tenancy Act. In the Orissa Tenancy Act, however, there is an express statutory provision regarding the relative value to be attached to the earlier and later settlement entries and in view of that provision any discussion of the case law on the subject is quite unnecessary.

11. But the Revision Settlement record-of rights does not in any way materially help the plaintiff. There is absolutely no evidence on record as to what is meant by the expression ‘jagiri ghenan.’ Doubtless the expression ‘jagit’ may mean resumable service-tenure but its use in conjunction with the word ‘ghenan’ may change the meaning completely. There is no glossary attached to the Revision Settlement of Mr. James for the purpose of ascertaining the meaning of the expression ‘jagiri ghenan.’ But there is an earlier Settlement Report (1892 to 1901) of Aul Estate made by Babu Debendra Nath Bose in which there are some passages dealing with the rights of ghenan tenants and jagir tenants. In paras 59 and 66 of that Report ghenan tenancies in Anl estate have been noted to be heritable and transferable and those tenants have a higher status than ordinary raiyats because the holding is transferable with, out the consent or permission of the landlord. In para 60 of that Report, there is a reference to jagir grants which are said to be resumable. But a careful reading of paras 69, 60 and 66 of that Report would indicate that the settlement authorities made a distinction between ‘ghenan tenancies’ on the one hand which are heritable and transferable and pure jagir tenancies which are resumable on the termination of services. Though there is no discussion about ‘jagiri ghenan tenancies’ it would prima facie appear that the use of the word ‘ghenan’ makes such tenancies heritable and transferable without the permission of the landlord. If there is such a right how can it be held that such a tenancy is resumable? At any rate, the burden is very heavy on the landlord to show what exactly was meant by the expression ‘ghenan jagir’ used in the Revision Settlement and in the absence of any evidence on his side and in view of the observations given in paras 59, 60 and 66 of Mr. Bose's Settlement Report, I would hold that even the Revision Settlement entry does not indicate that the tenancy is resumable.

12. Mr. Mohanty has relied on Sanniyasi v. Salur Zamindar, 7 Mad 368, Maga Devi v. Vakrama, 14 Mad. 365 and Badha Pershad Singh v. Btidhu Pershad, 22 Cal. 938 in support of his argument that service-tenures are resumable on the termination of services. But these three cases are clearly distinguishable on facts. In the last case there is a clear finding that the service-tenure was created for the purpose of doing the private work of the zamindar and that it was not a grant of an estate burdened with the performance. In the former two cases there is no clear discussion about the difference between ‘the making of a grant in lieu of services’ and ‘the making of a grant burdened with services’. But the general trend of discussion seems to indicate that the tenancies were of the former class. In the present case, however, not only is there total absence of any evidence on the side of the plaintiff to show that the tenancy was created by way of remuneration for services rendered by the tenant to the landlord but there is the current settlement entry which indicates that a permanent tenancy was created though a lesser rent than that prevailing in the locality was fixed because of certain services rendered by the tenant to the landlord. The presumption of correctness attaching to it has not been rebutted. Mr. Mohanty has also relied on two unreported decisions of the Patna High Court in S.A no. 154 of 1937 and S.A No. 45 of 1941. Both these decisions are decisions of single Judges who felt themselves bound by the Division Bench decision reported in Sankar Malik v. Breeja Sundar, A.I.R(27) 1940 Pat. 587 : (131 I.C 89) which I have already referred to in the preceding para With great respect to the learned Judges, I am unable to accept the reasoning that the settlement entry is inconsistent because in one column the status of the tenant is shown as ‘sthitiban’ and in another column it is noted that the low rental is fixed because of the services rendered by the tenant to the landlord. Such an entry has presumptive value to the effect that the tenancy was created burdened with some service and the only right left to the Zimindaris to ask for full assessment of rent when the services are terminated or are no longer required.

13. I would, therefore, dismiss the appeal with costs.

Das, J.:— I agree with the judgment of my learned brother Narasimham, J. in this case.

14. The appeal has been referred to a Special Bench because it raises questions as to the effect of inconsistent entries in the earlier and later settlement records relating to the same holding and as to the effect of resumption of service tenures. On these matters there have been some conflicting decisions. It is unnecessary, however, for me to deal with the matter at any length as the same has been dealt with by my Lord the Chief Justice in S.A no. 193/43 which I fully accept and also since my learned brother has covered the ground elaborately in his judgment in this case.

15. As pointed out by them, in the face of clear statutory provisions in S. 117, sub-s. (3) and the proviso thereto, of the Orissa Tenancy Act, specifying in unambiguous terms the exact value to be attached to entries in the current record-of-rights and the entries in the earlier record-of-rights, all the decisions which are inconsistent with the same must be taken to be wrongly decided.

16. As regards the effect of resumption of service tenures, it is enough to say that resumption means no more than the taking back of that which was once given (See Siyyadi Garu v. Nissanka Bahadur Garu, 30 I.C 416 : (A.I.R(3) 1916 Mad. 826). If as a result of resumption, the landlord claims to eject the tenant, he must show that he had granted the land itself for the service on conditions which will enable him to take back the land on the termination of the service. In accordance with the normal rule that a person suing in ejectment must make out his title to eject, the landlord who claims ejectment on resumption has got to make out the nature and the conditions of the grant. It is no doubt true that in some of the earlier cases, namely, Radha Parshad Singh v. Budhu Pershad, 22 Cal. 938, Sanniyasi v. Salur Lamindar, 7 Mad. 268 and Maga Devi v. Vakrama, 14 Mad. 363, it has been assumed that resumption in the case of personal service tenures entitles the landlord to eject. The case in Radha Pershad Singh v. Budhu Pershad, 22 Cal. 938 has been followed in some subsequent cases in Patna, 57 I.C 47 and C.J Shillingford… v. Gena Tatma…., A.I.R(25) 1938 Pat. 141 : (174 I.C 588). In some later cases in Madras, it has been pointed out that ejectment of the tenant is not the necessary result of resumption and that the facts giving rise to that right must be made out. (See Fatmatul Kubra…(Judgement-Debtor); v. Achchi Begam…(Decree-Holder)., 21 I.C 831 : (11 A.L.J 1009) and Siyyadi Garu v. Nissanka Bahadur Garu, 30 I.C 416 : (A.I.R(3) 1916 Mad. 826). The Privy Council case in Bommrauze Bahadur v. Venkatadry Naidu, 7 M.I.A 128 at p. 142 shows that resumption consists normally in putting an end to the grans and remitting the services and requiring the grantee to pay full assessment. The cases in Alexander John Forbes v. Meet Mahomed Tuquee, 13 I.A 438 : (6 Beng L.R 529 P.C), Lukhamgavda Basaprabhu v. Kashav Annaji, 28 Bom. 305 : (6 Bom. L.R 364), Lakhamgouda v. Baswantrao, A.I.R(18) 1931 P.C 157 : (132 I.C 736) show clearly that the onus is on the grantor to make out his right to resume and also to eject as a result of resumption. Reliance has been placed in course of the discussion on Sections 235 and 237 of the Orissa Tenancy Act, which show that nothing in the Act affects any incident of service tenure or affects any custom or usage not inconsistent with any of the provisions in the Act. This dose not moan that where the special incidents or the Customary rights of the particular service tenure are not made out on the evidence, there is any presumption in favour of the right of resumption or against occupancy rights of service tenure-holders. If there are any such special incidents or customary rights, it is on the person who invokes them to establish them. As pointed out by my learned brother in his judgment and also by my Lord the Chief Justice in S.A 193/43, the rent of occupancy ryots under the Orissa Tenancy Act may be partly payable in cash and partly by service under a special contract by virtue of the definition of “tenant” in S. 3, sub-s. (2). In the result I agree that the appeal should be dismissed with costs throughout.

Panigrahi, J.:— I agree that the appeal should be dismissed with costs.

K.S

17. Appeal dismissed.