HAJI FASIHUDDIN Vs. MOHD HABIB

JUDGEMENT

(1.) The plaintiffs, who are the appellants, brought a suit for recovery of possession in respect of 1.57 acres of land on the ground that it was originally a khidmati Jagir land given to the ancestors of the defendants second party for performing particular services to the grantors. As they had left the village and had ceased to render the services required of them, the plaintiffs claimed right of resumption of the land.

(2.) Defendants first party are the transferees from the defendants second party. The contest in the suit was only by and on behalf of the defendants first party. No written statement was filed by the defendants second party. It was clearly alleged in paragraph 8 of the plaint that the defendants second party had left the village and had ceased to perform the duties allotted to them under the conditions of the Jagir granted to their ancestors. This cessation of service was alleged to have been since 1360 Fasli, corresponding to 1953. The suit was instituted in 1954. In the written statement filed by the defendants first party, it was claimed that the land was not burdened with any service nor was it in !ieu of duties to be performed by the defendants. The land had been given to the ancestors of the defendants second party on account of their hav-ing helped the plaintiffs, landlords in excavating a tank.

(3.) The trial Court held that the land was a jagir land burdened with service and that it was resumable and on a finding that the defendants second party had ceased to render the service required of them, the plaintiffs suit was decreed for recovery of possession. On appeal by the defendants first party, the Court of appeal below has held that the land was burdened with service but it was of the view that the grantee could not be ejected and the land could not be resumed, inasmuch as, they (the defendants) did not refuse to work no matter whether their services were required or not. It has further held that in absence of a notice by the plaintiffs on the defendants, the plaintiffs are not entitled to resume the land.