JUDGMENT Jenkins, C.J. - The Plaintiff is the proprietor of Tappa Taraia, and included in that Tappa are two villages, Kanda and Tali. These villages were granted by the Plaintiff's ancestors to the ancestors of Dookhbhanjan and Balimanjhi, but as the result of several successive sales, some private and some by Court, and dating from 1877 to 1899, the Defendants Nos. 1, 2, and 3 claim to be entitled to 16 annas of Kanda and 15 annas of Tali. Defendant No. 4 claims to be entitled to the remaining I anna of Tali, as a purchaser. According to Defendants Nos. 1, 2 and 3 the price paid by them exceeds Rs. 17,000. The Plaintiff alleges that the two villages were held by Dhookhbhanjan and Balimanjhi and by their ancestors before them on a service tenure on condition of paying Rs. 19 annually for rent, and that "the service consisted of Ghatwali service at Kanda Ghat, and afterwards when Government made separate arrangement for guarding the ghat by the appointment of police-officers, the same consisted of service as sepoy in Plaintiff's deori." It is the Plaintiff's case that the tenure as being a service tenure, was inalienable and was liable to resumption not only on failure of the grantees or their heirs to render service but also in the event of transfer. 2. The Plaintiff alleges that Balimanjhi died, and since 1898 Dookhbhanjan ceased to render service, and that on the 7th of September 1901 he became aware of the invalid sale to Defendants Nos. 1, 2 and 3 and later of the invalid purchase of Defendant No. 4. "The cause of action," according to the Plaintiff, "arose in 1898 when service was discontinued--and also on the 7th September 1901, date of the Deputy Commissioner's order and also on the 10th September 1904, date of the order of the Commissioner of Chota Nagpur Division and also when the Plaintiff became aware of the invalid transfer to Defendant No. 4." To these orders of the 7th September 1901 and the 10th December 1904, I will refer later. 3. It is in these circumstances that the Plaintiff has brought this suit whereby he prays as follows :-- (a). That it be declared that the jaigir Mouzahs Kanda and Tali are resumable by the Plaintiff on the omission of the jaigirdars to render service for which the mouzahs had been granted. (b). 3. It is in these circumstances that the Plaintiff has brought this suit whereby he prays as follows :-- (a). That it be declared that the jaigir Mouzahs Kanda and Tali are resumable by the Plaintiff on the omission of the jaigirdars to render service for which the mouzahs had been granted. (b). That it be declared that the jaigir mouzahs are non-transferable by the jaigirdars. (c). That it be declared by the Court that the Defendants have got no valid title to Mouzahs Kanda and Tali on account of the invalid transfer and that the Plaintiff has become entitled to resume the Mouzahs Kanda and Tali. (d). That the Defendants be dispossessed from the entire villages Kanda and Tali and that the Plaintiff be given khas possession over the said mouzahs. 4. It has been stated before us by the Plaintiff that though the word resume is used, the purpose of this suit is not the imposition of rent or revenue but recovery of actual possession of the land. 5. All the Defendants have contested the Plaintiff's claim and their defence succeeded before the Subordinate Judge of Palamau by whom the suit was dismissed. An appeal was preferred to the High Court and heard by Doss and Richardson, JJ. They were divided in opinion. The present appeal is under cl. 15 of the Letters Patent from the judgment of Richardson, J., which was in favour of affirming the decree of the Subordinate Judge and so prevailed. 6. The principal question is whether the two villages of Kanda and Tali were held on a service tenure and were inalienable and whether they are liable to be forfeited by reason of the non-performance of service and the transfer of the tenure. It is clearly established that there was a grant of these two villages. Unfortunately the grant cannot be produced as it has been lost. This is due to no fault of the Defendants or their predecessors, for it is proved that the document was filed in a case before the Adalat Dewani at Lohardaga, and, with all other records, was destroyed in the Mutiny. 7. But though the original has been lost, one would have expected the Plaintiff to have in his possession a copy of this document as he has of others. 7. But though the original has been lost, one would have expected the Plaintiff to have in his possession a copy of this document as he has of others. He however declares that the copies of the sanads of Mouzahs Kanda and Tali are not in his sherista. 8. The grant is one of considerable antiquity, and there has been long continued enjoyment under it. But there has been no lack of endeavour on the part of the Plaintiff and his father to regain possession of these two villages free from any tenure created by the grant. 9. As far back as 1867 Lachmi Baksh Rai, the Plaintiff's father, instituted a suit in the Court of the Deputy Commissioner of Lohardaga against Rittaran Manjhi for himself and as guardian for others, including Dookhbhainjan, then a minor. The purpose of the suit was to obtain possession of Kanda and Tali, and the case made by the Plaintiff was that the village had been granted to the ancestor of the Defendants not on service tenure but as ijara, i.e., ticca for life, and that the grantees had all died. The Defendants by their written statement in that suit alleged possession for more than 60 years, that, the property in dispute was Khutkutti property reclaimed by Ghansham Manjhi, the common ancestor of the Defendants and of other shareholders "by clearing jungle and uprooting shrubs, and that a hereditary grant had been made." The Deputy Commissioner held that the Plaintiff had entirely failed to prove his case and he remarked that it was not necessary to allude further to the Defendants' title than to say that, regarded relatively, there was much more evidence before the Court to prove it than there was to prove the Plaintiff's claim. 10. The result was that the suit was dismissed. 11. An appeal was preferred to the Judicial Commissioner of Chota Nagpur, but it was dismissed, and a special appeal to the High Court met with a similar fate. Delivering the judgment of the High Court, Markby, J., said that "the Defendants and Plaintiff agreed that some 40 years ago the land passed into the possession of the Defendants' ancestors, but the Plaintiff alleged that that was a grant to three specified persons the last of whom died in the" year 1858, i.e., 9 years before the commencement of this suit. The Defendant alleged that it was a grant in the nature of jaigir given for certain services and it is admitted that they remained in possession up to the time that the suit was brought." Much has been made by Plaintiff of the words "given for certain services." 12. The next attempt to regain possession of the villages was in 1901 when the present Plaintiff applied under sec. 34 of Act I of 1879, B. C., to be put into possession on the ground that Dookbhanjan and Balimanjhi were dead, and that no heir had applied to be registered in their place. The application was opposed by Sheoprosad Sahu, Joygobind Sahu and Ramnarain Sahu who maintained that the tenure was not resumable but was granted as a Khutkutti several generations ago. They further alleged that they had acquired the property by purchase and that Dookhbhanjan was not dead. Their opposition prevailed and the application was rejected on the 7th of September 1901. This is treated by the Plaintiff as a cause of action. 13. An appeal was preferred first to the Commissioner and then to the Board of Revenue, but in each case with no success. 14. In 1904 the Defendants applied under sec. 36 of Act I of 1879 for an order requiring the Plaintiff to admit them as tenure-holders in the Registry of his sherista. The application was granted and an appeal from this order was dismissed on the 10th of December 1904. This too the Plaintiff describes as a cause of action. 15. It is worthy of note that in the earlier proceedings instituted by the present Plaintiff and his father neither of them alleges that the villages were held on a service tenure, and yet that would have been a natural allegation to make had there been any foundation for it. 16. In the judgment of the High Court there is the expression a "jaigir for certain services," and considerable reliance seems to have been placed on it by the Plaintiff. But it is obvious that the services to which Markby, J., referred were past and not future services. The actual words of the learned Judge are these, "the Defendants alleged that it was a grant in the nature of a jaigir given for certain services." 17. But it is obvious that the services to which Markby, J., referred were past and not future services. The actual words of the learned Judge are these, "the Defendants alleged that it was a grant in the nature of a jaigir given for certain services." 17. Now, the Defendants did not appear before the High Court so that the allegation must have been that made in the written statement. But the only services mentioned there is the reclamation by clearing jungle and uprooting shrubs, and that reclamation was a past, not a future service. The previous litigation then, so far from helping the Plaintiff's case is really against it, for while it goes to show that there had been a long possession of the property by the Manjhis, there is an absence of any suggestion by the Plaintiff or his father of a service tenure. In contrast with this we have the assertion by those opposing the Plaintiff and his father that the property was Khutkutti and this implies that the tenure was free from any obligation for service. What then is the evidence in this case by which the Plaintiff seeks to prove that the villages were held on service tenur. ? 18. First, the Plaintiffs make much of the fact that in a series of documents the villages are described as "my ancestral jaigirdari interest" or by some cognate phrase. This, according to the Plaintiff, supports his contention that the villages were held on jaigir tenure, and this he maintains, implies that it is a service tenure. But a jaigir is not necessarily conditional, it may be unconditional as where it is a grant for services already rendered, and this is apparent from Dosibai v. Ishwardas I. L. R. 9 Bom. 561 (sic). Then witnesses have been called to prove that jaigirs in this district are liable to forfeiture on alienation, but the utmost that they go to show according to the learned Subordinate Judge is that the tenures in Palamau which are known as jaigir are as a general rule conditional on service, inalienable and liable to resuraption on alienation or failure of service. 19. But this class of evidence is of little or no value, for the tenure now in question was created by a document. 19. But this class of evidence is of little or no value, for the tenure now in question was created by a document. And where that is so, the terms on which the land is held, its alienability, and its liability to forfeiture must depend on the terms of the particular grant, and not on the terms of grants that may have been made to others. 20. I now pass to the evidence that has been adduced with a view to showing that service has actually been performed in respect of these two villages. The Plaintiff's version is that originally there was Ghatwali service at Kanda Ghat, but about the year 1886 the Government made arrangements for guarding the ghat by their own police-officers and that the service of the Ghatwals then terminated. The Plaintiff himself does not profess to have seen Ghatwali service on the ghat, and this I can well understand, for he did not take over the management of his Reyasat till 1893, and at that time the Ghatwali service could no longer have been in existence. All he is able to say as to this is that he heard from his uncle that all jaigirs were on the condition of service, that when Kanda Ghat was settled by Government the jaigirdars of Kanda and Tali served as durwans at his residence at Bisrampore. He deposes that when he began to manage his own affairs Dookhbhanjan was one of the durwans. The Plaintiff's witnesses go further than the Plaintiff: they profess to have seen Ghatwali service rendered by Dookhbhanjan and Balimanjhi at the ghats as well as durwan or sentry duty at Bisrampore. The Subordinate Judge did not credit the evidence as to service at the ghat and Richardson, J., has accepted his view. Doss, J., also agreed with the Subordinate Judge that it was extremely improbable that after the signal success which the Manjhis achieved in the litigation with the Plaintiff's father in the year 1867 they would render any service of a personal nature, but influenced by certain considerations to which he alludes, and the evidence of the Defendants' witness No. 2, Kharag Manjhi, he came to the conclusion that the Ghatwali service must have been discharged by the Manjhis. 21. 21. But in two important respects the learned Judge was in error : first, he was mistaken in supposing that it had never been suggested by the Manjhis that these mouzahs had been granted to their ancestors as a reward for some past services rendered by them. In their written statement in the litigation of 1867 they distinctly averred that the property in dispute was Khutkutti reclaimed by their ancestor. 22. Next the learned Judge was mistaken as to the evidence of Kharag Manjhi. We have examined the record and also the Subordinate Judge's notes and I have no doubt that a "never" has dropped out, and that the testimony of the witness was the exact opposite of what the learned Judge supposed. 23. The Subordinate Judge while unconvinced as to service at the ghats, felt it difficult to believe that a person in the position of the Plaintiff would come to Court and swear that Dookhbhanjan had actually worked as a sepoy at the Gurh at Bisrampur, if there were no foundation for the statement. 24. Doss, J., thought the story of the Manjhis having served as sentries at the Plaintiff's residence at Bisrampore as devoid of foundation, and Richardson, J., evidently was of the same opinion. 25. But while the Subordinate Judge was not prepared to disregard the Plaintiff's evidence as to the performance by Dookhbhanjan of sentry duty at Bisrampore Ghur, he clearly did not connect that service with the tenure of Kanda and Tali. This I can well understand, for if, as I think there was not any service after the litigation of 1867--and it is not suggested that there is evidence of any prior to that--it is in a high degree improbable that Dookhbhanjan would have undertaken the performance of sentry service in respect of the villages after the abolition of the Ghatwali in 1886. To begin with, it must be borne in mind that the Manjhis had begun to part with their interest in the villages as far back as 1877, and Dookhbhanjan was party to a zurpeshgi mortgage in 1875 and a sale-deed in 1882. To begin with, it must be borne in mind that the Manjhis had begun to part with their interest in the villages as far back as 1877, and Dookhbhanjan was party to a zurpeshgi mortgage in 1875 and a sale-deed in 1882. Then again we have no explanation as to how the sentry or durwan service at the palace could have been imposed in place of the service at the ghats and the mere fact that Dookhbhanjan may have worked as a durwan at the palace in 1893 falls very far short of proving that this service was an incident of the tenure on which the two villages were held. 26. The conclusion, then, to which I come is that no Ghatwali service is proved, and that if Dookhbhanjan worked as a sentry or durwan at the palace--a point which I am not prepared to affirm--it was not as an incident of the tenure on which the villages were held, and that the villages in fact were not held on service tenure. In arriving at this conclusion I have not overlooked the Plaintiffs argument that unless the grant was for service to be rendered there was no motive for the grant. But future services are not the sole motive for grants of land, and the Defendants' story is at least as probable as the Plaintiff's. But if the villages were not held on a service tenure then it is conceded they are not inalienable, and thus the basis of the Plaintiff's claim fails. 27. If the tenure in its origin had been conditional on service, then it would have been necessary to consider whether on the determination of the service either by the Government, or by reason of long failure to perform the same, the lands would not have become alienable [Radhabai v. Anantarav I. L. R. 9 Bom. 198 (1885)]. 28. But in view of my finding it is unnecessary for me to pursue this enquiry. Nor need I consider how far the payments made by the Defendants and the receipts held by them place an obstacle in the way of the Plaintiff's right to recover possession. It is enough for me to say that, for the reasons I have already indicated, in my opinion the Plaintiff's suit must fail, and this Appeal should be dismissed with costs. Harington, J. 29. It is enough for me to say that, for the reasons I have already indicated, in my opinion the Plaintiff's suit must fail, and this Appeal should be dismissed with costs. Harington, J. 29. This case comes before us in consequence of a difference of opinion between Doss and Richardson, JJ. 30. The suit was for possession of two Mouzahs Kanda and Tali which fall within Tappa Tarria of which the Plaintiff is the proprietor:-- The Defendants, who are in possession of Kanda and 15 annas of Mouzah Tali, acquired these estates by a series of purchases from the Manjhis who previously held them under the Plaintiffs. 31. The Plaintiffs say the mouzahs in question were a jaigir, conditional on the performance of Ghatwali services and that as such they were inalienable, and that the Manjhis having alienated them, the Plaintiffs are entitled to resume possession. 32. The Defendants on the other hand allege that the tenure in suit is a permanent hereditary and transferable tenure and they are the transferees. 33. The Subordinate Judge dismissed the Plaintiff's suit. 34. The case for the Plaintiff is that the Manjhis performed the service of guarding the passes as a condition of their tenure of the mouzahs in question, up to about 20 years ago when the Government took over that duty : that then the tenant of the mouzahs acted as a guard or sepoy for the Plaintiff as a condition of his tenure in lieu of the services which had been undertaken by the Government. 35. To show that the tenure of these mouzahs was conditional on the performance of services, evidence was called to prove that jaigirs in the District of Palamau are burthened with the performance of services and a large number of leases and deeds of sale were produced covering a period of from 1875 to 1899--in which the Defendants' predecessors had invariably described the mouzahs as forming their jagirdari interest. It was argued that it was well known in the district that the jaigirs were conditional service tenures and that by thus describing them the persons from whom the Defendants derived their title in effect admitted that the mouzahs were inalienable--and it was contended that the expression jaigir for services rendered, which was applied to the mouzahs in question in the judgment of the High Court in 1867, showed that they were held on condition of performing services. But the grant itself was not produced. It was stated that the document under which the mouzahs were originally granted was destroyed with other papers filed in a suit by the Defendants at the time of the Mutiny and the Plaintiffs produced no record from their sherista to show the terms on which the grant was made. In the absence of direct evidence much reliance was placed on the use of the word jdigir both in the judgment of the High Court and in the documents. But this expression may quite as well refer to past at to future services, for a jaigir is not necessarily a grant conditional on the rendering of services by the grantee nor is it necessarily inalienable. 36. Wilson in describing a jaigir says "the assignment was either conditional or unconditional: in the former case some public service as the levy and maintenance of troops or other specified duty was engaged for, the latter was left at the entire disposal of the grantee." 37. I do not think that evidence that jaigirs in the district were conditional and inalienable would be sufficient to justify the inference that this particular jaigir was burthened with these conditions without either evidence to prove the terms of the grant or to establish by credible witnesses that the grantees or their successors had for a number of years performed the services and had not alienated the property. Here, though the Defendant gives a good reason for being unable to give direct evidence, as to the terms of the grant, the Plaintiff gives no explanation of the non-production of any copy or record of its conditions. 38. Then there is the record of other litigations which tells against the Plaintiff. 39. Here, though the Defendant gives a good reason for being unable to give direct evidence, as to the terms of the grant, the Plaintiff gives no explanation of the non-production of any copy or record of its conditions. 38. Then there is the record of other litigations which tells against the Plaintiff. 39. In 1867 his predecessors sued the predecessors-in-title of the Defendants for possession of the two mouzahs, which are the subject of the present suit and in the plaint in that suit it was alleged that the lands had been granted to the Defendants for life--on their paying Rs. 19 for rent and carrying out orders according to zamindari practice. 40. The Plaintiffs were unsuccessful, though they prosecuted their claim up to the High Court, the judgment, dismissing their suit, was affirmed. 41. It is very significant that in this case the Plaintiffs did not allege an inalienable Ghatwali tenure ; the plaint refers to the Defendants "carrying out the orders according to the zamindari practice" and although this might be consistent with the case set up by the Plaintiff as to the state of things after the Government had taken over the duty of guarding the passes, it seems to me quite inconsistent with the Plaintiff's case as to the state of things when it was filed in 1867--viz., that at that time the service of guarding the passes was a condition of the tenure. 42. And the result of this litigation throws the very gravest doubt on the truth of the oral evidence, that services were actually performed since 1867--for, as the Judge points out, it is very unlikely that having been successful in this litigation, the tenants would burthen themselves with services which they were then held to be not compellable to render. 43. There is another point which weakens the argument of the Appellant that jaigir, in the District of Palamau, were necessarily inalienable and that in the various deeds of sale, which have been produced, the property is described as jaigir. I do not believe that persons would have been found to buy if on the face of the sale-deed they were buying what the vendor had no power to sell and were getting nothing by their purchase. It is of course possible that a speculator might buy under these conditions but he would give far less than the ordinary market price. It is of course possible that a speculator might buy under these conditions but he would give far less than the ordinary market price. I can find no suggestion that the prices given for the jaigirdari land were less than the usual prices of ordinary land in the district. 44. There were other legal proceedings which also tell against the Plaintiff--particularly, proceedings taken by the present Plaintiff under sec. 34, Act I of 1879 (B. C.) to obtain possession of Kanda and Tali on the ground that they had escheated to him through failure of the heirs of the grantee. The objectors while denying that the mouzahs were resumable, set up a title by purchase--and the objectors were successful in defeating the Plaintiff's claim. 45. In view of the position asserted by the Plaintiff in previous litigations the absence of direct evidence of the terms of the grant--of evidence, which can be believed, that any services had been performed within the 40 years, I do not think it can be said that the Plaintiff has proved his case. In my opinion therefore the suit should be dismissed. Mookerjee, J. 46. I agree that the claim of the Plaintiff is entirely unfounded. 47. The Plaintiff seeks to recover possession of two villages Kanda and Tali on the ground that the tenure under which they were held by the predecessors of the Defendants has been forfeited. His allegation is that the tenure was granted to the ancestors of Dookhbhanjan and Balimanjhi on condition that the grantees and their heirs in succession would pay a sum of Rs. 19 as annual rent and also render service to the grantor and his representatives. It is alleged that the service was originally that of a Ghatwal at Kandaghat, and that subsequently when the system of Ghatwals was abolished by Government and police-officers were appointed to guard the mountain passes, the service rendered was that of sentry in the mansion of the Plaintiff. The Plaintiff further asserts that as a service tenure it was liable to be forfeited upon failure to render service as also upon alienation of the lands comprised in the grant. The Plaintiff seeks to eject the Defendants on the ground that performance of service has been discontinued from 1898 and that the lands have also been improperly transferred. 48. The Plaintiff further asserts that as a service tenure it was liable to be forfeited upon failure to render service as also upon alienation of the lands comprised in the grant. The Plaintiff seeks to eject the Defendants on the ground that performance of service has been discontinued from 1898 and that the lands have also been improperly transferred. 48. To determine the rights of the parties it is essential to bear in mind that their common case is that the grant was made under a written instrument executed in the beginning of the 19th century. The original deed, however, is not forthcoming ; it had been filed in Court in a suit in 1857 and was destroyed along with other records at the time of the Mutiny. The Plaintiff alleges that he cannot trace in his office a copy of the grant. Consequently, we must proceed on the assumption that so far as the precise terms of the original grant are concerned, neither primary nor secondary evidence is available. The Plaintiff has consequently been driven to make an attempt to establish the terms of the grant which he asserts was a jaigirdari grant by indirect evidence. A considerable body of evidence has been adduced to prove the terms of jaigirdari grants which are said to be common in that part of the country. The earliest of these grants dates back to the 18th November 1800 and is nearly contemporaneous with the last grant. It is fairly clear, however, that evidence of this class, even if it be assumed to be admissible, is necessarily of little value. It was ruled in Hollingham v. Head 4 C. B. N. S. 388 ; 114 R. R. 780 (1858), that where the question is whether A made a contract with B subject to a certain qualification, evidence of the fact that he made contracts with other persons subject to the same qualification, is inadmissible. Mr. Justice Willes observed as follows :--"Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion ? Mr. Justice Willes observed as follows :--"Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion ? To admit such speculative evidence would I think be fraught with great danger." To the same effect are the decisions in Carter v. Pryke (1792) Peake 95, Spencely v. Wilmot (1806) 7 East. 108, Smith v. Wilkins (1833) 6 C. and P. 180, Borden v. Keverberge (1836) 2 M. and W. 61. The case of Woodward v. Buchanan (1870) I. E. 5 Q. B. 285 is clearly distinguishable and is not opposed to this view. But it has been said that the terms on which A let land to tenants other than B may be admissible to show the terms on which he let land to B, if all the lands are subject to the same custom. Doe v. Sisson 12 East. 62 (1810). Even if it be assumed, therefore, that evidence of this description is not inadmissible, but that, as has been maintained on high authority (Wigmore on Evidence, sec. 377), the question in each instance is merely of the probative value of the particular facts offered in evidence, it is plain that the evidence adduced in the present case is entirely valueless. The element of a different personality is so important in affecting the making of the terms of a contract that the likelihood of making a similar contract with different persons is very much smaller, when a contract is sought to be evidenced by other contracts with different persons, than even in the case where a contract is sought to be evidenced by other contracts with the same person. I hold, therefore, that evidence of this description is of no assistance to the Plaintiff. 49. The Plaintiff then relies upon the fact that in numerous deeds of sale under which the properties in suit have been transferred in part from time to time, the transferors have, with singular uniformity, described the interest they had as their ancestral jaigirdari and he contends that the term jaigir implies an inalienable service tenure. This contention is clearly unfounded, though it is sought to be supported by a reference to Hunter's Statistical Account of Bengal, Vol. 16, pp. 392, 396. This contention is clearly unfounded, though it is sought to be supported by a reference to Hunter's Statistical Account of Bengal, Vol. 16, pp. 392, 396. It is well known that the term jaigir does not necessarily imply a conditional grant, and it was pointed out by Harrington in his Analysis of the Bengal Regulations, Vol. III, page 405, on the high authority of the Minute by Sir John Shore, dated the 2nd April 1788, that jaigirs were of two kinds, conditional and unconditional. This is accepted as an accurate statement by Field in his Introduction to the Bengal Regulations, page 53. This view is also supported by the decision of their Lordships of the Judicial Committee in Dosibai v. Ishwardas L. R. 18 I. A. 22 : s. c. I. L. R. 15 Bom. 222 (1890), which confirmed the judgment of the Bombay High Court in Dosibai v. Ishwardas I. L. R. 9 Bom. 561 (1885). (See also the elaborate note by Wilson in his Glossary, page 224). Consequently, we must take it that the mere fact that the tenure is described as a jaigir, is by no means conclusive, and that its incidents must be determined from other circumstances. One characteristic, however, is beyond the pale of controversy, namely, that the grant was heritable. As was pointed out by Sir Barnes Peacock in the case of Kooldip Narain Singh v. Mahadeo Singh 6 W. R. 199 ; 5 B. L. R. Sup. Vol. 559 (1866), which was heard by a Full Bench of this Court and ultimately taken before the Judicial Committee of the Privy Council, Kooldip v. Government 14 M. I. A. 247 (1871), if it is proved by long uninterrupted usage that the lands have passed from ancestor to heir, that is, from father to son, for two or three generations without objection, the inference would be that the grant was a grant of inheritance, because the fact of descent from father to son is the strongest possible evidence of its hereditary character. In the present case, the lands have descended from ancestor to heir from generation to generation. In the present case, the lands have descended from ancestor to heir from generation to generation. We have in addition the significant fact that on the 26th September 1867, the Plaintiff sued in ejectment on the allegation that the grant was for life ; this was repudiated by the Defendant in that suit in his written statement, dated the 23rd December 1867, in which he asserted that the lands had been reclaimed by the grantee and that the tenure was a jaigir ba farzandan. The primary Court dismissed the suit on the 23rd August 1868, this decree was affirmed on appeal on the 18th March 1869 and ultimately by this Court on the 6th September 1869. The Plaintiff is consequently constrained to accept the position that the grantees hold under a hereditary tenure. 50. As already stated, the evidence of grants to other persons and the description of the property as jaigir are of no assistance to the Plaintiff. He has consequently endeavoured to prove that the grantees have always rendered service to him. The evidence must be examined in relation to three successive periods of time, namely, first, from the date of the origin of the grant to 1867, when the suit for ejectment of the representative of the grantee was commenced ; secondly, from 1867 to 1886 when the Ghatwali service was discontinued, and, thirdly, from 1886 to 1898 when, according to the Plaintiff, service was discontinued completely. As regards the first of these periods, there is no evidence that service was rendered at any time prior to 1867. As regards the second period, the Subordinate Judge was not favourably impressed with the evidence of performance of Ghatwali service, and the criticisms advanced on behalf of the Appellants in this Court are not sufficient to show that the Subordinate Judge took an erroneous view of the matter. As regards the third period, the Subordinate Judge was inclined to believe that one of the representatives of the grantees did render service as sentry or gate-keeper in the mansion of the Plaintiff. This evidence, however, has not been accepted by Mr. Justice Doss and Mr. Justice Richardson as trustworthy. As regards the third period, the Subordinate Judge was inclined to believe that one of the representatives of the grantees did render service as sentry or gate-keeper in the mansion of the Plaintiff. This evidence, however, has not been accepted by Mr. Justice Doss and Mr. Justice Richardson as trustworthy. On the whole, therefore, the evidence of performance of service at any period is unsatisfactory and the difficulty in the way of the Plaintiff is enhanced by the, fact that he must establish not only that service was rendered but also that it was rendered by the predecessor of the Defendants as holders of the jaigirdari tenure in question. This part of thee case, however, is not free from doubt and the fact of payment of certain assessment to the Government may possibly tend to show that Ghatwali services were at one time annexed to the tenure ; but it is clear that even if we hold that services were annexed to the tenure, the case for the Plaintiff is full of difficulties. In the first place, assuming it to be established that performance of service was annexed to the grant, the Plaintiff has not proved whether the grant was a mere grant in lieu of wages or was a grant subject to a burden of service. This distinction, as pointed out by the Judicial Committee in Vencata v. Sobhanadri L. R. 33 I. A. 46: s. c. I. L. R. 29 Mad. 52 (1905), where the view previously taken in Lilanand v. Munoranjan L. R. I. A. Sup. Vol. 18(sic)1 ; 13 B. L. R. 124 (1873) and Forbes v. Meer Mahomed 13 M. I. A. 438 (1870) was re-affirmed, is of a fundamental character, and if, as there is good reason to hold, the grant was made as a reward for past service, namely, reclamation of the land, the Plaintiff would have to prove that merely because performance of service was annexed to the grant, non-performance thereof entitles him to treat the tenure as forfeited. This he has not done. In the second place, assuming that the original service was Ghatwali, the Plaintiff would have to establish that when such service became unnecessary by reason of the action of the State, he was entitled in lieu thereof to claim the performance of another kind of service, namely, sentry duty at his mansion. This he has not established. In the second place, assuming that the original service was Ghatwali, the Plaintiff would have to establish that when such service became unnecessary by reason of the action of the State, he was entitled in lieu thereof to claim the performance of another kind of service, namely, sentry duty at his mansion. This he has not established. In the third place, assuming that performance of service could be claimed and has been improperly refused, the Plaintiff has to establish that where a tenure is held on condition of payment of rent in cash, and the performance of some service, he is entitled to treat the tenure as forfeited because performance of service has been refused though the cash rent has been tendered. This the Plaintiff has not proved. In the fourth place, there is no pretence that the Plaintiff himself has paid the sum annually payable to the State which the grantee had to pay on his behalf: if such payment has been made from year to year by the grantee, the Plaintiff has to prove that notwithstanding such payment, the tenure has been forfeited. This position he has not even attempted to establish. In the fifth place, it is clear that assuming that Ghatwali service was rendered at any time, such service terminated in 1886, and there is no reliable evidence of the performance of service at any subsequent period by the representative of the grantee in his character as holder of the tenure. The surrounding circumstances make it very improbable that such service should have been performed. The holders of the tenure began to transfer the lands as early as the 29th of November 1875, and there were numerous successive transactions from that date to the 16th March 1899. It is extremely improbable, to say the least, that while the tenure-holders were repeatedly acting on the assumption that they held a transferable tenure, they continued to perform service on the theory that they held an inalienable service tenure. We must take it, therefore, that service, if ever rendered, terminated in 1886. If then, the tenure was forfeited on this ground, the forfeiture took place in 1886, while the present suit was not commenced till the 8th December 1905. We must take it, therefore, that service, if ever rendered, terminated in 1886. If then, the tenure was forfeited on this ground, the forfeiture took place in 1886, while the present suit was not commenced till the 8th December 1905. At the date of institution of the suit, consequently, any possible claim of the Plaintiff to enforce performance of the service or to recover possession on the ground of forfeiture by reason of non-performance of service was barred by limitation. The question necessarily arises whether the Plaintiff is, not with standing this fact, entitled to eject the Defendants on the ground of forfeiture by transfer of an inalienable tenure. The decision of the Full Bench of the Bombay High Court in Radhabai v. Anantarav I. L. R. 9 Bom. 198 (1885) militates against the acceptance of the contention of the Plaintiff. On principle, it may well be maintained that when service can no longer be enforced and the tenure consequently ceases to be a service tenure, the land can be alienated : when an estate is freed from the burden of service, the reason for the preservation of the estate as inalienable disappears : alienation can be prohibited only with a view to prevent the permanent severance of the estate from the services annexed to it. [See also Vasanji v. Lallu ILR 9 Bom. 285 (1885) and Bai Devkore v. Amirtram I. L. R. 10 Bom. 372 (1885), which are not opposed to this view]. The decision of the Judicial Committee in Padapa v. Swami Rao L. R. 27 I. A. 86 : s. c. I. L. R. 24 Bom. 556 ; 4 C. W. N. 517 (1900), which reversed the decision in Swami Rao v. Padapa I. L. R. 18 Bom. 22 (1892), is clearly distinguishable. The question there in controversy related to the status of a person who had acquired good title to a Vatan by adverse possession, and it was ruled that he would prime facie be in the same position as the person lawfully entitled to the Vatan, though it was pointed out that if the adverse possessor were an independent trespasser and did not claim to be a Vatandar, other considerations might arise. In fact, the question before the Judicial Committee was similar to that raised before the Court of Appeal in England in Tichborne v. Weir 67 L. T. 735 (1892) and in O'Connor v. Foley (1905) 1 I. R. 1, where the question arose as to the liability of a trespasser who had acquired title as against the lessee by adverse possession, for the statutory period, it was ruled that the adverse possessor was not bound by all the terms of the lease. The position, however, is fundamentally different where, as between the grantor and the grantee, the grantee acquires by lapse of time a right to refuse service to the grantor. In a case of this description the view may well be maintained that as the tenure had lost its character of service tenure, the fetter of inalienability had been removed. From every possible point of view, therefore, the claim of the Plaintiff turns out to be unsustainable and must be held to have been rightly dismissed.