NARENDRA CHANDRA DE Vs. RAJENDRA CHANDRA CHANDA

JUDGEMENT

(1.) This is an appeal on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of khas possession of the lands in suit on the allegation that the defendants held the same in service tenure on condition of rendering certain menial services to the plaintiff and as there was a refusal on the part of the defendants to render such services since Chaitra 1342 B.S., the plaintiff was entitled to resume the lands. The defence was that one Kailas Chandra De, the predecessor of the defendants, served as a tahsildar of the plaintiff's estate when the plaintiff was a minor and as a reward for his services, the plaintiff's mother on behalf of the plaintiff made a gift of the suit lands to him to be held in raiyati right without payment of any rent. The defendants denied categorically that they or their predecessors rendered any services, menial or otherwise, to the plaintiff. Both the Courts below believed the plaintiff's story and made a decree in his favour. The defendants have come up on appeal to this Court.

(2.) Mr. Chuckerbutty who appears for the appellants has raised several points in sup. port of the appeal. He has contended in the first place that the entries in the record of rights, upon which both the Courts below practically based their decision, were ambiguous and did not show that the disputed lands were chakran lands which the defendants held as service tenants. Secondly, he has argued that Ex. 1 did not contain any admission as to the lands being chakran lands as was supposed by the Subordinate Judge and that the other document, viz., Ex. 3 upon which he placed reliance was neither legally proved nor was admissible in evidence. His third argument is that even if it was a service tenure, the lower appellate Court ought to have considered the point as to whether this was a grant of land burdened with certain services or there was a grant of an office merely which was to be remunerated by the use of land; and the case could not be disposed of unless there was a decision on this point. The last point taken is that as the service tenure came into existence subsequent to the passing of the Transfer of Property Act, it was necessary under Section 111, Clause (g) of the Act that the landlord should signify his intention to determine the lease by some overt act and unless such overt act was proved, the plaintiff was not entitled to succeed.

(3.) As regards the first point, both the Courts below have interpreted the entries in the settlement record to mean that the lands in suit were chakran lands which were held by the defendants on terms of rendering services as bhandari. The question is one of inference to be drawn from the statements in the khatiyan and as was held by their Lordships of the Judicial Committee in Anup Mahto V/s. Mita Dusadh , such inferences are inferences of fact with which the High Court cannot interfere in second appeal. I do not agree with Mr. Chuckerbutty that what the Subordinate Judge meant was that the entries in the record of rights were ambiguous and that the ambiguity was only removed by the alleged admissions contained in the two documents, Exs. 1 and 3, which Mr. Chuckerbutty invites me to discard. The learned Subordinate Judge construed the various items in the khatiyan and came to the definite conclusion that they supported the case of the plaintiff. He went further and said that even if there was any ambiguity in the said records, that were removed by the statements of the defendants predecessor contained in Exs. 1 and 3. Thus, even apart from the alleged admissions in Exs. 1 and 3, the Subordinate Judge in conformity with the trial Court came to the finding on the basis of the Record of Rights that the lands in suit did constitute a service tenure and unless there was any misdirection on a point of law vitiating his finding, I would consider it to be unassailable in second appeal. The C. S. Khatiyan describes the lands as jote chakran Kailas Chandra De which means that it was a service tenure held by Kailas, the word jote being a perfectly general expression to mean tenancy of any kind. The next item of the entry relates to the status of the holder and it describes the status of Kailas as that of a raiyat. Kailas was a raiyat of the village and the entry might mean that he used the land for agricultural purposes. That he was not described as a settled raiyat or an occupancy raiyat is, in my opinion, important and it rather strengthens the view that the tenancy being a service tenancy, no occupancy rights could be acquired in it. The khatiyan next records that the lands are rent free or niskar and that cesses are payable to the extent of annas 2-6 annually. The entry of niskar is rather ambiguous and fits in with the story of both sides.