The Judgment of the Court was as follows:—
Mallik, J.:— The Plaintiffs brought a suit for the resumption of certain lands on eviction of the Defendant on the allegation that the lands were chakran and that the Defendant had refused to render service for which the chakran grant had been made. The defence was that the lands were not chakran but niskar lands. The trial Judge decreed the suit holding that the lands were chakran. The Defendant came up on appeal and the lower Appellate Court disbelieved the story of absolute niskar and also held that the Defendant and his people for the service rendered got wages in addition to diet money and on these findings the lower Appellate Court allowed the appeal and dismissed the suit with costs. The Plaintiffs have come up before us on second appeal.
The principal contention raised before us is that the lower Appellate Court on the findings arrived at by it ought to have dismissed the appeal. This contention seems to us to be well-founded and must therefore prevail. The case was whether the lands were chakran or niskar. The learned Subordinate Judge rejected the story of absolute niskar. He did not disbelieve the findings of the Court of first instance to the effect that the lands were chakran. The finding arrived at by him was tantamount to this that the Defendant was for the service rendered by him allowed to hold the land without paying any rent and he was allowed some wages also in addition. The fact that some wages were paid in addition would not, in our opinion, change the chakran character of the holding, and that being so, and the Defendant refusing to render service, we do not see how the prayer of the Plaintiff for the resumption of the lands on eviction of the Defendant therefrom could be successfully resisted. In this view of the matter we are supported by the ruling contained in Ramnath Seal v. Siba Sundari , where it has been laid down that if a service tenant renounces his character as a service tenant and denies the title of the landlord to resume the land, the lease to him determines and no notice is necessary to eject him.
In the circumstances we do not see how the judgment of the lower Appellate Court can be upheld. In the result the appeal is allowed with costs in all Courts. The decree of the lower Appellate Court will be set aside and that of the Munsif restored.
No order is necessary on the application as the parties have already been added.
Duval, J.:— I agree. The finding of the lower Appellate Court does not amount to a finding that the land was niskar. It finds that it was chakran though it was not the entire profit which the Defendant would receive for carrying palanquin for the zemindars. The evidence shows that the finding is that the Defendant has refused to serve. It may be the case that he quarrelled over the diet money or cash payment. But that can make no difference in the chakran character of the homestead, and as was pointed out in the case of Radha Pershad Singh v. Budhu Doshad (2), when there is a grant for private or personal service, the zaminder is entitled to resume when the service is not required or when the grantee refuses to render him service.
As to the failure to prove the issue of notice it appears that this grant came into existence long before the Transfer of Property Act came into force in this province and no notice is necessary. I agree that this appeal must be allowed and the Munsif's decree be restored with costs in all Courts.
The Defendant is allowed three months from this date in which to remove his hut.
P.C