LAKHAMGOUDA BASA VPRABHU SARDESAI Vs. BASWANTRAO

JUDGEMENT

(1.) This is an appeal from the High Court at Bombay, which dismissed an appeal by the plaintiff, the present appellant, from a decree of the Subordinate Judge of Belgaum and allowed a cross-appeal by the defendants, the respondents. The respondents did not file a case or appear before this Board. The plaintiff is the Sirdesai of Vantmur and he brought the present suit to recover possession of lands which, as he alleged, his predecessor in title had given to the defendants predecessor in title in the year 1841, as remuneration for services as a shiledar or mounted follower. The defendants claim was that the land was granted to their predecessor, and that the tenure was heritable and permanent so long as the holder was prepared to render the necessary service. It was common ground that since about 1868 the plaintiff andhis predecessors had been receiving nokriansha, or a yearly payment in lieu of service, from the defendantel and their predecessors, and a further or alternative question arose as to the amount of the nokriansha which was the subject of the defendants cross-appeal. The substantial question is, whether the land was resumable at the will of the plaintiff whether service was tendered or not. Similar problems are familiar in the Indian Courts, Principles for their solution were formulated by this Board in 1870 in the case of Forbes V/s. Meer Mahomed Tuquee (1870) 13 M.I.A. 438. The distinction to be borne in mind is between the grant of an office to be remunerated by the use of land and the grant of the land burdened with service, In the former case the land will prima facie be resumable ; in the latter case prima facie it will not: but the terms of the grant or the circumstances in which it was made may establish a condition of the grant that it was resumable. The onus will be upon the grantor to make out such a condition.

(2.) In the present case the written grant to the defendants predecessor is produced. It is written in Marathi and is translated in the record as follows:-- Memo to Rajeshri Baba Desai Narendarkar. Allowance of saranjam in respect of Tainant Sur year 1241 shake year 1763, cyclical year being named Plawa, Lunar date the 1 day of Chaitra Shudha (i.e., date 24th of March, 1841, a.d.) 1. Land (yielding an income) of Rs. 200 two hundered rupees. 1. Rs. 5 five rupeea and 1 one rupee for goat (should be given) at the time of Basra holiday. 1. "Sidha" for two persons namely for (I) him (i.e., Baba Narenda) and 1 one servant should be given daily. 1.Grain "Adisher" by Kaily measure and fodder for horse should begiven daily. 1. "1 Khijamatdar" and 2 Peons, in all3 parsons, out ofour retinue will be ordered to be appointed (for rendering service to you). 1. If you go on tour, an orderwill be given to supplyhorse, a keeper of the horse, an ornamented umbrella, carriers and torch bearers. A grant of 6 items is made. Accordingly they will be continued. An agreement is duly given in writing as above. 30 moon of the month of Mohurrum Mortab Sud Ruju.

(3.) It seems to be admitted that the translator misread the word "Tainat", which, according to Wilson's Glossary, means "military charge or command, general control or management, stipend or salary." It will be observed that, whatever this document does, it does notin termsgrant any office, though the recipient is to render some service is indicated by the use of the word "Tainat" and by the reference in the last item to "going on tour." It does in terms "grant" the six items, the first being "land." There is no dispute that the land so "granted" is the land now in question. Contemporaneously with the grant of the land the Sirdesai issued a notice to the occupies of the land:-- Shri Prabhu God be propitious. Copy to "Kamati" of Moujue Budihal. (From) Lakhamgowda Basavprabhu Desai Nadgowda Paragane Hukkeri for the Sur year 1241 (i.e., date 24 of March, 1841 a.d.). "Kainat" land measuring one fourth chawoor situate at Mouje aforesaid had been ordered to be given in respect of Tainati (saranjam) to Rajeshri Baba Desai Narandrakar. So you should go on paying the income from produce, from the next year, to the said person and go on acting according to his instructions, May this be known 30 moon of the month of Moharrum Mortab Sud.