PRABHATSANG VAGHELA Vs. BHAGWATSANG JHALA

JUDGEMENT

(1.) THESE are three second appeals covered by one judgment of the District Judge at Ahmedabad. They arise out of three separate suits filed by the same plaintiffs, but against different defendants. The common question covered by the litigation was whether the plaintiffs, who were the wantias, were entitled to resume the lands from the defendants. The trial Court, after considering the evidence, both oral and documentary, held that the plaintiffs' contentions were not proved, and dismissed the suits. On appeal, the learned District Judge of Ahmedabad was of opinion that the oral evidence was not material. He considered the documentary evidence only for the purpose of determining whether the plaintiffs had established their contentions. In his view, the plaintiffs had succeeded in doing so. He, therefore, allowed the appeals and passed decrees in favour of. the plaintiffs. The defendants have filed these second appeals.

(2.) THE material facts are these: THE plaintiffs claimed that they were the wantias of the village Savlana in Viramgam Taluka and were the absolute owners of the fields and houses in the village along with defendant No, 5, who was stated to be a co-owner with them. THEse parties are described as jhalas. It was alleged that defendants Nos. 1 to 4 were in possession of the fields and houses as jivaidar servants and chakars of the plaintiff and defendant No.5. THEy stated that the fields were granted I granted to the defendants on condition of rendering service to the wanta-wallas, and as they, defendants, were rendering services, they were permitted to enjoy the produce of the said lands. THE plaintiffs contend that in case the defendants refused to do so, or the plaintiffs desired not to receive any further services, the plaintiffs could resume possession of those properties. It was stated in the plaint that the defendants had wrongfully refused to render services and set up title as absolute owners of the properties. In paragraph 8 of the plaint, it was stated that plaintiffs and defendant No.5, and H. H. Shree Ghanshamsinghjee Saheb Bahadur of Dhrangadhra State were equal sharers in the said lands and that the Dhrangadhra Durbar had got as much interest in the said properties as that of the plaintiffs. Just as the defendants had been rendering services to the plaintiffs, similarly they were bound to render such services to the Dhrangadhra State and had been doing so. THE plaintiffs referred to a document passed on April 15, 1913, in favour of the Dhrangadhra State. THE plaintiffs claimed that they had filed the suit without joining the Dhrangadhra Durbar as a party, because the sanad of the wanta of Savlana was granted to them alone and in the Government records the lands stood in their name. THE prayers were for possession of the lands mentioned in the plaint. THE defendants' contention was that these lands were given to them for services already rendered several decades ago and they were the owners of the lands. THE plaintiffs had no right to demand services. THE defendants alleged that the reference to Dhrangadhra state was irrelevant as the Dhrangadhra State had no interest or right in the lands mentioned in the plaint. THE parties went to a hearing with the result I have mentioned above.

(3.) IN Lakhamgavda v. Keshav Annaji (1901) I. L. R. 28 Bom. 305: S. C. 6 Bom. L. R. 364, the Court laid down the following propositions in respect of lands held under such circumstances (headnote)i : The combination of an interest in land and an obligation as to service may fall under three heads viz. : (1) there may be a grant of land burdened with service, (2) there may be a grant in consideration of past and future service, and (3) there may be the grant of an office the services attached to which are remunerated by an interest in land. IN either of the first two classes of grants it may be made a condition that the interest in the land should cease when the services are no longer required, but in the absence of a provision to that effect lands held under those grants are not resumable at will. " Where a plaintiff INamdar asserts that he has a right to resume, he has to establish that the combination is such as permits of resumption and where there has been long and undisturbed possession enjoyed by the defendant and his predecessors, it will require strong evidence on plaintiff's part to make out his case.