JOYNATH SARKAR Vs. HARI MOHAN DAS

JUDGEMENT

(1.) The plaintiff claims to be a service tenure-holder of the land in suit which is the debutter property of an idol, under defendants Nos. 1 and 2, the shebaits. He made preparations for the worship and sheba of the idol and his father did similar service before him. He held this land in lieu of remuneration for the service he rendered and paid Rs. 12 a year to the shebaits as cesses. This amount used to be Rs. 7 but it was enhanced to Rs. 12. He made default in payment of this amount on account of which a Suit (No. 898 of 1911) was instituted against him by defendants Nos. 1 and 2. It was decreed and in execution of that decree the jote was put up for sale and was purchased by defendant No. 3 on the 4th October 1912. The plaintiff then instituted this suit on the 20th April 1916 to recover possession of the jote alleging that the former suit was fraudulent; that he knew nothing about it; that in fact a wrong person, a name-sake of his, had been served, and that he know nothing about the suit and decree. His case was that his right in the disputed land was a chakran right and that such right could not be attached or sold; the attachment and sale of such a right was prohibited by law and the sale was, therefore, void and fraudulent and so defendant No. 3 by his purchase had acquired no right in the land and be prayed that the decree and sale might be declared void and fraudulent and not binding on him and possession should be restored to him.

(2.) The Trial Court held that no summons had been served on the plaintiff in that Suit No. 898 of 1911 and so he was not bound by the decree in that suit. He further held that the right which the plaintiff had was the right of a service-holder but that the sale certificate showed that a chakrani right had been sold. He found that there had been irregularities in the sale and so the plaintiff s title had not passed. He did not decide whether the right of a service-holder was saleable. On these findings he gave the plaintiff a decree for possession. On appeal the learned Subordinate Judge held that the decree in Suit No. 898 had been properly obtained and the execution proceedings under it properly conducted. The plaintiff had appeared in the execution proceedings. He, however, held that the right which the plaintiff held in the land was that of a service-holder, that the position of the plaintiff was that of a trustee, and that being so, the service-tenure was not liable to be sold. He held that Section 47, Civil Procedure Code, was not a bar to the suit. On these findings he dismissed the appeal.

(3.) It seems to us the learned Subordinate Judge has erroneously held that the plaintiff was a trustee of this land. The plaintiff did not hold a hereditary office of any kind in connection with the sheba or under the deity. His father and he were menial servants. Instead of remuneration for the work they did, they were allowed to take the profits of some land, possession of which had been made over to them. They had to pay Rs. 12 a year to the shebaits for the land as cess. The land was not burdened with any service in connection with sheba. Hereditary character does not attach to it or the service, nor has it been shown to be service jote, or debutter chakran land. The learned Subordinate Judge has overlooked the distinction between the grant of an estate burdened with debsheba service and that of an office the performance of the duties of which is remunerated by the use of certain lands. See Radha Pershad Singh v. Budhu Dashad 22 C. 938 : 11 Ind. Dec. (N.S.) 622. There is a still greater distinction when the use is of a permissive character so far as the servant is concerned, when the land is not burdened with any service. The plaintiff held under a special arrangement. He was liable to dismissal and the land could be resumed at once upon cessation of his service. He had not paid the annual cess and that was a breach of the arrangement between him and his employers. The plaintiff alleged in his plaint that he had "enjoyed the land in lieu of rent for upwards of 12 years in succession to predecessors" by which we think he meant in lieu of service." It is not shown he had an occupancy right. If she plaintiff held the land as a service- tenure he could not acquire a right of occupancy in it. See Hurrogobind Raha v. Bamrutno Dey 4 C, 67 : 2 Ind. Dec. (N.S.) 44. The sale certificate speaks of a chakrani jote. The learned Munsif understood by it a right of