Judgement Appeal (No. 2 of 1933) from a decree of the High Court (November 19, 1930) reversing a decree of the Additional Subordinate Judge of Hazaribagh (June 23, 1928). The appellant sued the respondents claiming resumption of a village and incidental relief’s. The village had been granted by the appellants predecessor in 1852 to a guru " as baiswan (jaghir) " for the reciting daily of a chapter of a Hindu holy book. The appellant alleged that the service had been discontinued in 1919, and that thereupon he was entitled to khas possession and mesne profits. The facts appear from the judgment of the Judicial Committee. The trial judge found that the service had been discontinued in 1919 and made a decree as prayed. An appeal to the High Court was allowed, and the suit was dismissed. Ross J. (with whose judgment Dhavle J. agreed) said that in his opinion the true construction of the sanad was that it effected a grant of an estate burdened with the performance of certain services, but did not make the continued performance of the services a condition upon which the land was held; the services were a motive or consideration but were not a condition so as to make the land resumable upon their cessation. The services were not to be rendered to the grantor. It was unnecessary to discuss whether the grantees representatives were entitled to notice. 1934. June 7, 8. Dunne K.C. and Wallach for the appellant. The respondents did not appear. [Reference was made to Forbes v. Meer Mahomed Tuquee (( 1870) 13 Moo. I. A. 438.), Koolodeep Narain Singh v. Mahadeo Singh (( 1866) 6 S. W. R. 199.), Toolshi Pershad Singh v. Ram Narain Singh (( 1885) L. R. 12 I. A. 205, 214.) ; Bengal Tenancy Act, 1885, s. 103B.] July 2. The judgment of their Lordships was delivered by SIR LANCELOT SANDERSON. This is an appeal by the plaintiff in the suit, a minor appearing through the Court of Wards, from a decree of the High Court of Judicature at Patna dated November 19, 1930, which reversed a decree of the Additional Subordinate Judge of Hazaribagh dated June 23, 1928, and dismissed the plaintiffs suit. This is an appeal by the plaintiff in the suit, a minor appearing through the Court of Wards, from a decree of the High Court of Judicature at Patna dated November 19, 1930, which reversed a decree of the Additional Subordinate Judge of Hazaribagh dated June 23, 1928, and dismissed the plaintiffs suit. The suit was for a declaration that a village called Ghutibar became liable to resumption on the cessation of certain services—namely, the cessation of reciting one chapter of the holy book of Srimadbhagwat before the god Saligram from the month of April, 1920, and that thereafter the defendants had no right to remain in possession of the said village in view of the rights of the plaintiff; for a decree for khas possession of the said village ; for mesne profits and for any other relief to which the plaintiff might be found entitled. Defendants 1 to 8 filed a written statement denying the discontinuance of the worship, and alleging that they were not in possession of the village and stating that they had no objection to the plaintiff taking possession of the village. Defendants 9, 12 and 13 filed a joint written statement, in which it was alleged amongst other matters that the grant, to which reference will presently be made, was burdened with the service of reciting Bhagwat, but that the said reciting was not a condition of the grant, and that subsequently rents were imposed in lieu of the recitation of Bhagwat. It was further alleged that the said reciting had not been discontinued. Defendants 10 and 11 filed a separate written statement which alleged that the reciting of the Gita (presumably meaning the Bhagwat) was not a condition of the said grant, that the descendants of the grantees were still daily reciting the Gita, and that the survey record showed that the tenure was not resumable. Defendants 9, 12 and 13 contested the suit, the guardian ad litem of defendants 10, 11 and 14 watched the trial ; the defendant No. 15 did not appear. The Subordinate Judge made a decree in favour of the plaintiff for recovery of possession of the said village, and made a declaration that the plaintiff was entitled to recover mesne profits from the defendants 9 to 15 for the period mentioned in the decree with directions as to the ascertainment of the said mesne profits. The Subordinate Judge made a decree in favour of the plaintiff for recovery of possession of the said village, and made a declaration that the plaintiff was entitled to recover mesne profits from the defendants 9 to 15 for the period mentioned in the decree with directions as to the ascertainment of the said mesne profits. He ordered that the plaintiffs costs should be paid by all the defendants. The defendants 9 to 13 appealed to the High Court, which allowed the appeal and dismissed the suit. From this decree of the High Court the plaintiff has appealed to His Majesty in Council. None of the defendants appeared at the hearing of the appeal. The material facts are as follows On November 16, 1852, the Maharaja Sambhu Nath Singh granted a sanad in respect of the village Ghuthiwari (called Ghutibar in the plaint) to Guru Sri Raghavendra. The plaintiff is the successor .of the above mentioned Maharaja and the defendants 1 to 8 are the successors of the above mentioned Guru Raghavendra. The other defendants were joined on the allegation that they were transferees from the defendants 1 to 8 or their predecessors. The terms of the sanad are as follows— " Sri Bhagwat—Sri Saligram. " Dated the 5th Katik Sudi Sambat, 1909. " Kaulkarar patta granted by the most powerful and high in dignity Maharaja Sri Sambhu Nath Singh Bahadur (to the effect following) " Whereas one village Ghuthiwari in paragana Ranipur, has been granted by me as baiswan (jagir) to Guru Sri Raghavendra for reciting daily one chapter of (Sri Bhagwat) before (Sri Saligram). He and his sons and grandsons shall make recitation (of the same) and enjoy (the proceeds of) the village. The village includes jup, kup (wells), boundary limits, trees and fisheries, etc. Therefore it has been (granted) before me the hazur and Bakhshi Jainandan Das, Bakhshi Gopal Das, Bakhshi Bhawani Ram Mahta (torn) Das and Bakhshi Bhagwan Das. (Sd.) Bakhshi Jaikishun Das at the Ichak Kachahri." On June 3, 1856, Raghavendra executed a kabuliyat in favour of the Maharaja Sambhu Nath Singh in respect of the said village. The terms of the kabuliyat are as follows — " Maharaja Sri Shambhu Nath Singh Bahadur. " I am Raghavendra Guru, resident of Gurubara, pargana Chai, Ilaka Hazaribagh. (Sd.) Bakhshi Jaikishun Das at the Ichak Kachahri." On June 3, 1856, Raghavendra executed a kabuliyat in favour of the Maharaja Sambhu Nath Singh in respect of the said village. The terms of the kabuliyat are as follows — " Maharaja Sri Shambhu Nath Singh Bahadur. " I am Raghavendra Guru, resident of Gurubara, pargana Chai, Ilaka Hazaribagh. " I have been granted by the hazur (Maharaja Sri Shambhu Nath Singh Bahadur) mauza Ghuthiwari, one village in pargana Rampur, as baiswan in lieu of services, and I have to pay for the same Rs. 12-15-0 in Companys coin in cash I do hereby declare, and give out in writing that I shall without objection pay off the same according to the instalments year after year at the kachahri of (Maharaja Sri Shambhu Nath Singh Bahahdur). " Details of Instalments. " Asin, Kartik, Aghan Pus, Magh, Phagun, Chait, Baisakh. " I shall pay off the money according to the above instalments. In case of default (in payment) of the instalments, I shall pay the money with interest thereon. If the rent falls into arrear or I be removed from service, then I shall give up possession of the land (village). I have therefore of my own accord executed this kabuliyat at the kachahri of .... so that it may be of use when required. Dated the 1st Jeth Sudi Sambat, 1913. " (Sd.) Chaudhari Jagu Ram at the Ichak kachahri. " (Sd.) Raghavendra Guru." In the survey khewat, which was stated to have been made in 1912, the village is entered as not resumable the yearly rent is entered as Rs. 12-15-0 and the following appears in the remarks column " By virtue of unregistered (sada) sanad dated 5th Kartik Sudi, 1909, Sambat granted by Raja Sambhunath Singh as to Ragho Ind. Guru." By reason of this entry in the survey record the presumption arises that the particulars therein recorded were right and that the jagir granted by the sanad to Raghavendra was not resumable. But such presumption may be rebutted, and the first question is whether the plaintiff, on whom the onus rests, has succeeded in rebutting the above mentioned presumption. Before considering this question there is another document, to which reference should be made. But such presumption may be rebutted, and the first question is whether the plaintiff, on whom the onus rests, has succeeded in rebutting the above mentioned presumption. Before considering this question there is another document, to which reference should be made. It appears that on March 11, 1889, Govindra Indar Guru and Lakhav Indar Guru, sons of Raghavendra Guru, executed a mukarrari lease in respect of the said village in favour of Gannu Singh and another, who were the ancestors of the defendants Nos. 9 to 15, at a fixed annual rental of Rs.145. Reference therein was made to the fact that Rs. 12-12-0 was payable by the lessors to the Ramgarh estate. This sum was obviously a mistake for Rs. 12-15-0. It was alleged that some of the lessee defendants purchased the reversion in 1912. There was an issue at the trial whether the above mentioned service had been discontinued and when. Upon that issue the Subordinate Judge accepted the evidence given on behalf of the plaintiff and held that the service, on which the jagir in suit was held, had been discontinued since May, 1919, and that finding of fact must be assumed as correct for the purpose of this appeal. Both the Courts in India accepted the above mentioned sanad and kabuliyat as genniue documents and as admissible in evidence, and the question whether the plaintiff has succeeded in rebutting the presumption created by the entry in the survey khewat, and proving that the jagir granted by the sanad was resumable, really depends upon the true construction of these two documents, for there was no verbal evidence of any materiality on this question. For the present purpose the two documents must be read together. Although the sanad was granted in 1852, and the kabuliyat was executed in 1856, it is clear that both of them relate to the conditions on which the village was held by Raghavendra. In the sanad there is no reference to any rent, and the grant was made to the grantee for the purpose of ensuring that the grantee, his sons and grandsons should make the recitation therein prescribed daily. The question is whether this was a grant burdened with the above mentioned service or whether the grant was conditional upon the service being performed. The question is whether this was a grant burdened with the above mentioned service or whether the grant was conditional upon the service being performed. It is recited in the kabuliyat that the jagir in the village had been granted by the Maharaja in lieu of services and that the grantee had to pay the rent therein mentioned according to the instalments. The terms of the kabuliyat point to the inference that the rental had been imposed after the grant of the sanad had been made. It was therein provided that if the rent fell into arrear or the grantee be removed from service he would give up possession of the village. This provision shows conclusively that in some material particulars the entry in the survey khewat is not correct, for although the entry refers to the sum of Rs. 12-15-0 as the yearly rent, there is no reference to the provision that the grantee was bound to give up possession of the village in the event of the rent falling into arrear. It follows therefore that the statement in the entry in the survey khewat that the village was not resumable was incorrect. Further, although the entry in the survey khewat mentions the sanad of November 16, 1852, there is no reference to the services to be rendered by the grantee and there is no reference to the terms of the kabuliyat at all. Their Lordships therefore are of opinion that the presumption arising from the entry in the survey khewat that the jagir in the village was not returnable has been rebutted. It remains to be considered what is the true construction of the two above mentioned documents. The expression in the kabuliyat " or I be removed from service " must refer to the service specified in the sanad—namely, the reciting of the chapter from Bhagwat daily. The terms of the kabuliyat show that the parties thereto intended that, although a rent was to be paid, the performance of the above mentioned service was to be continued as a condition of the grant. The terms of the kabuliyat show that the parties thereto intended that, although a rent was to be paid, the performance of the above mentioned service was to be continued as a condition of the grant. But it was also provided that the grantee might be " removed from service." This is an ambiguous phrase, but it must at all events mean that the parties contemplated that the performance of the service might cease either at the instance of the grantor or otherwise, in which case possession of the village was to be given up to the grantor. Their Lordships are of opinion that the true construction of the two above mentioned documents is that the performance of the said service was a condition of the grant, and that inasmuch as the said service was discontinued in May, 1919, the plaintiff became entitled upon such discontinuance to obtain possession of the said village. The defendants, who contested the suit and based their claim upon the mukarrari lease of March 11, 1889, and their alleged subsequent purchase of the reversion, can be in no better position than their lessors, and the plaintiff is entitled to a decree against them. For these reasons the appeal should be allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge restored. The defendants Nos. 9, 10, 11. 12 and 13, who were the appellants in the High Court, must pay the plaintiffs costs in the High Court and of this appeal. Their Lordships will humbly advise His Majesty accordingly.