LAKHAMGOUDA BASUPRABHA 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 and his predecessors had been receiving nokriansha, or a yearly payment in lieu of service, from the defendants 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 MIA 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 land burdened with service. In the former case the land will prima facie beresumable ; 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. 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 :Seal of Stamp of eight annas.

(2.) God Prabhu be propitious, Copy, (a) Memo, to Rajeshri Baba Desai Narendrakar. (a) A general, term of respect. Allowance of saranjam in respect of Tainat (c) Sur year 1241 shake year 1763, cyclical year being named Plawa, Lunar date the first day of Chaitra Shudha (i. e., date 24 March, 1841 A. D.). 1. Land yielding an income) of Rs. 200 (two hundred rupees.) 1. Rs. 5 (five rupees) and Re. 1 (one rupee) for goat (should be given) at the time of Dasra holiday. (d)(1) him (i.e., Baba Narendra) and 1 one servant should be given daily. 1. Grain "Adisher" by Kaily measure and fodder for horse should be given daily. (e) 1. "I Khijamatdar" and two peons, in all three persons, out of our retinue will be ordered to be appointed (for rendering service to you). 1. If you go on tour, an order will be given to supply horse, a keeper of the horse, an ornamented umbrella, carriers and torch bearers. (b) Villages and lands granted in inam to persons from whom maintaining of forts or troops for the public service is required. (c) A Stipandary (sic) such as district, town, etc., to a person for his maintenance. (d) Undressed rice or corn and fuel to dress it. (e) A servant of great men for petty offices about the person. 6. "A grant of items 6 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. True copy as per original 20 July, 1863 A. D. Balwant Krishnaji, Clerk. Ramachandra Bapuji Karbhari, A true translation. S. M. Majumdar, Translator.

(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 not in terms grant any office, though that 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 occupiers of the land: