BRAJASUNDAR DEB Vs. BINODE ROUT

JUDGEMENT

(1.) 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 Deulsahi and for other consequential reliefs.

(2.) The plaintiff is the proprietor of Aul estate and village Daulsahi 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 tendering of 'chela" service by the tenants to the zamindar. In the Revision Settlement records-of-rights finally published in 1911 (Exs. 6 & 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".

(3.) The plaintiff's case as set forth in the plaint was that the disputed lands were given as jagir (sarvice 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. ll-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 l purchased it and continued to perform the services as 'chela' to the Zamindar and remained in possession 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 lands 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 fixed 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.