FATERAM Vs. JANAK

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The appellants, who are the malguzars of mouza Kera in the Janjgir tahsil of the Bilaspur District, brought a suit against the respondents for possession of certain tenancy land on the allegation that that land was given to the respondents in lieu of service as barbers and that the respondents having ceased to work as barbers were liable to eviction. The suit was dismissed by the trial Court and an appeal preferred was also dismissed by the Additional District Judge They have now preferred this second appeal. It has been clearly proved by the evidence on record, even that adduced by the appellants, that not only the respondents, but their father and grandfather were in possession of the land in suit--possibly also even their great-grandfather, as appears from the statement of one of their own witnesses. At any rate, continuous possession since the settlement of Mr. Chisholm in 1868 has been established. It is true that both Rati and Sheonath have been proved to have been working as barbers and that they did not pay rent for the lands in suit, their service being taken in lieu of rent. At the same time that is not sufficient for holding that they were mere village servants and that they were not tenants: on the contrary, as held by the lower Courts, the entry in the settlement papers of two settlements, namely, of Mr. Chisholm and Mr. Hance, would go to show that they were tenants.

(2.) THE real point at issue is whether the respondents were tenants, whose rent was remitted in lieu of service, or whether they were only servants who were given lands on condition of service, which land was to be resumed when the service was discontinued. The Courts below have found that the respondents were tenants, and that finding appears to be supported by the evidence. The learned Counsel for the appellants has however referred to an entry in the wazib-ul-arz, which was filed as Ex. P-2. That entry runs as follows : "177 Rati Nai Sakin Deh--area 11.34 acres--tachakri maf." It was argued that that entry in the wazib-ul-arz, which is the only conclusive evidence in the matter, as being part of the Record-of-Rights of the village, shows that Rati was only a village servant and held lands on condition of service. It was further argued that, as this important piece of evidence has been disregarded by the lower appellate Court, the finding of that Court, which is a finding of fact, was not binding upon this Court. I am not however pressed by the argument, and in the first place I would point out that the remark "tachakrimaf" might just as well apply to a tenant who held land rent free as long as he performed certain services as to a servant or licensee who held land only on condition of service: in fact I think it is more applicable to the first case. Further I would point out that the entry in the settlement parcha (Ex. D-2), which is in favour of Rati and relates to the fields now in suit under the serial number 177, shows that land as held maufi-khairati.

(3.) LASTLY , the learned Counsel for the appellants referred to a note apparently made by a Revenue Inspector upon a copy of the jamabandi for 1928-29 (Ex. P-8), which is to the effect that the lands were formerly recorded as muafi-khairati, but that in the year 1922-23 there was a change and the holders Janak and Mahesh were recorded as malguzar's servants. It may be noted however that the note is only a note, made by a Revenue Inspector and has not been proved in any way, and the appellants failed to file any of the papers of the current settlement or any order passed by the Settlement Officer in the matter under Section 70 or Section 79, Land Revenue Act. I do not think, then, that the mere note of the Revenue Inspector can have any evidentiary value, and I would further add that, if an entry has been made recording the respondents as village servants or malguzar's servants at the current settlement, that entry would appear to be incorrect in view of the evidence recorded in the present litigation and, as this suit or appeal was pending at the time the entry or order was made, I think it may be corrected. I am of opinion, then, that there is no force in the appeal and that the decision of the Courts below is correct. I therefore confirm the decree of the lower appellate Court and dismiss the appeal. Costs of the appeal will be borne by the appellants. Other costs as ordered by the lower appellate Court.