LAKHAJI DALJI GARASIA Vs. KUBERDAS HARGOVINDAS MODI

JUDGEMENT

(1.) The first five out of this group of six appeals arise out of suits filed by the holders of lands in the village of Sahijpur Bogha in Ahmedabad District against the inamdar of that village. The lands involved in these appeals are chakariatnakra, that is to say service lands free of assessment. The plaintiffs first claimed in their plaints that they were permanent tenants of the lands in their respective possession and were not liable to be evicted by the inamdar. The inamdar contended that all the lands were service lands liable to be resumed at his pleasure. After his written statements were put in. the plaintiffs amended their plaints and admitting that the lands were their chakariatnakra lands not liable to assessment, they contended that they and their predecessors in-title had never rendered any service, that they were no longer liable to render service and that the inamdar had no power to resume them. They, therefore, claimed a declaration that they were the absolute owners of the lands in their possession and an injunction permanently restraining the inamdar from evicting them. The inamdar contended that as the lands had been given for service, he had a right to resume them either on their refusal to render service or on their services being dispensed with. The trial Court upheld the plaintiffs claim and declared that they were the absolute owners of the chakariat lands in their possession. The learned District Judge reversed all the decrees and dismissed the plaintiffs suits.

(2.) Appeal No. 384 arises out of a suit filed by the inamdar for recovery of possession of Survey No. 342 at Sahijpur Bogha together with past and future mesne profits, on the ground that it was a ravania chakariat land, that it was resumable on discontinuance of service, that it had been resumed by the levy of double the assessment during the management of the village by the Talukdari Settlement Officer and that thereby the defendants who were in possession of the land had become his annual tenants or tenants at will. The defendants claimed that the land being chakariat inam it was not liable to be resumed, that by the levy of double the assessment the land had not ceased to be a chakariat land nor had they become the inamdar's annual tenants and that the inamdar had no right to evict them. The trial Court held that the defendants had become the annual tenants of the inamdar since double the assessment began to be levied from them and decreed the inamdar's claim. The learned District Judge took the same view and confirmed the decree of the trial Court.

(3.) The first question raised in all these appeals is whether the inamdar is a grantee of the soil or of only the royal share of the revenue of the village, Both the Courts below have held that he is a grantee of the soil and that finding is challenged by the landholders in these appeals. It is now well settled by the rulings of the Privy Council in Upadrashta Venkata Sastrulu V/s. Divi Seetharamudu (1919) L.R. 46 I.A. 123 Chidanibara Sivaprakasa V/s. Veerama Reddi (1922) L.R. 49 I.A. 286, Secretary of State for India in Council V/s. Srinwasa Chariar (1920) L.R. 48 I.A. 56 and Secretary of State for India in Council V/s. Laxmibai (1922) L.R. 50 I.A. 49 that there is no presumption of law that an inam grant of a village is prima facie a grant of the land revenue only as distinguished from the land itself. Each case must be considered by itself and the determining factors are the terms of the particular grant and the whole circumstances connected therewith. In the present case, however, it is not known when or on what terms the village was originally granted in inam. The grant was confirmed by the British Government and a sanad under the Summary Settlement Act (Bombay Act VII of 18630 was issued on August 27, 1864, in favour of the then inamdar Mirza Najaf Ali Khan Mirza Navab Saheb, reciting that he was already the registered holder of the village and declaring that he was the grantee of the whole village and that the village would be continued by the British Government as the private property of the grantee, his heirs and assigns on payment of Rs. 250 a year as fixed quit rent subject to all the pre-existing rights of others. This indicates) that what was granted was the village itself and not merely the revenue of the village. But in the absence of evidence about the terms of the original grant, the nature of the grant must be determined from the long course of conduct of the inamdar and the landholders. The circumstances indicating that the grant was of the soil of the village have been dealt with at length in the judgments of both the lower Courts. It is held proved that the inamdar used to take more than half the fruit of the mango trees in the lands of the village and to appropriate to himself the wood of all dead trees. Mr. Shah for the landholders argues that this must have been a customary right of the inamdar and it does not show that he was the grantee of the soil. No such custom was alleged in the lower Courts, but it was contended that he took the fruit for rakhvali. There is, however, no evidence to show that any watchman was ever kept by the inamdar to guard the trees. The inamdar would not be entitled to the wood of the dead trees if he was not the owner of the soil. In one of the tumors (exhibit 526) it is stated that out of the fruit of the trees the inamdar takes the soil share and the landholder takes the uchher-bhag (rearing up share). There are several documents showing that the inamdar used to sell his soil share in the fruit. This indicates that the trees were planted or reared up by the landholders on the soil belonging to the inamdar. The inamdar also relies upon the fact that earth used to be taken away from the soil only with his permission. But I do not attach much importance to this circumstance, since such permission was asked for and granted only in 1932. The inamdar claims to own wells in the village. But he is proved to be the owner of only four wells and this circumstance is inconclusive.