PRANKRUSHNA DAS Vs. KESHAB MAHARANA

JUDGEMENT

(1.) This is a plaintiffs second appeal preferred in a suit for recovery of possession of 1.21 acres of land in mauza Anka, district Balasore, tauzi No. 3968. The plaintiffs admittedly constitute the entire body of landlords of the village in question. The ground on which they base their claim for ejectment is that the disputed lands were service-lands (jagir) of a carpenter being a village servant In the settlement record of the year 1928 the tenure of defendant 1, is described as deshata (for the benefit of the country) barhai (carpenter) jagir (service-lands). To the same effect was the description of the tenure in all the preceding settlements including that of 1898 known as Provincial Settlement. It is alleged that defendant 1 has transferred by a permanent lease the disputed lands to defendant 2, and has abandoned his residence in the village in question having gone over to a feudatory state nearby. Defendant 2, who is a non-carpenter, and, therefore, not able to serve the village community as a carpenter is wrongfully in possession of the lands. Hence, the plaintiffs as landlords of the disputed holding seek to resume the service lands on the ground that the service holder has ceased to perform the services, and to recover khas possession thereof after ejecting defendant 2.

(2.) The suit is resisted by defendant 2, and it is ex parte as against defendant 1. Both the learned Courts below have agreed in coming to a finding that defendant 1 has abandoned the village and has permanently abandoned the services of a carpenter which he was to perform to the members of the village community including the landlords and that he has, therefore, forfeited his right to hold and continue in possession of the disputed lands. The parties have presented their respective cases in this second appeal without challenging this finding which has become final for the purpose of this case.

(3.) The plaintiffs suit has been thrown out by the lower appellate Court on the ground that on cessation of the village services, and on consequent forfeiture of the jagir by the holder thereof, it is not the landlords who are entitled to get possession thereof as they are neither the grantors with an ultimate right of reversion in their favour, nor are they representatives of the village community, for whose benefit the lands had been dedicated and given to be held revenue-fees by the village servant. That the holding is mon transferable is clear from the provisions of Section 235, Orissa Tenancy Act, which provides that nothing in the Act shall confer a right to transfer or bequeath a service-tenure which before the commencement of this Act (1918) was not, capable of being transferred or bequeathed. That these jagir lands were not capable of being transferred or bequeathed will appear from a description of their incidents incorporated by Mr. Maddox in his report on the Provincial Settlement of Orissa, vol. I. page 232, para. 338. The following is a quotation from the said report.: The confirmed jagirs are tenable only so long as the service for which they are granted is performed. They are by custom heritable but cannot be partitioned or transferred, though oases have been brought to light where this has been done.