JUDGMENT Lodge, J. - The material facts giving rise to this appeal are as follows: 2. Sri Sri Mohanta Gobinda Gopalananda Deb Goswami, as sole shebait of the deity Sri Sri Radha Govinda Jiu Thakur instituted a suit against the deity Sri Sri Shamray Thakur, represented by shebaits, who were made defendants 1 to 6, concerning certain lands situated within Mouza Kanpur, Pergunna Nagabasan, District Midnapore. 3. The plaintiff deity claimed debuttar right in the lands in suit, and asserted that the defendant deity was in possession of the said lands as a chakran tenant, on condition that the shebaits of the defendant deity beat Khol before the plaintiff deity on Pali Parban days, and that the defendant deity paid Re. 1 annually to the plaintiff deity as bheti or selami. The plaintiff deity further asserted that since Jaisth 1347 B.S. the shebaits of the defendant deity had refused to beat Khol before the plaintiff deity. The plaintiff deity contended that by such refusal the defendant deity had forfeited the right to possess the lands. Accordingly the plaintiff deity had served notice on the shebaits of the defendant deity calling upon them to quit the lands. 4. The shebaits of the defendant deity contested the suit, asserting that the defendant deity held the land in makurari tenure at an annual rent of Re. 1 only. They also asserted that they - the shebaits-as devoted Baishnabs, used to beat Khol and sing devotional songs before the plaintiff deity on Pali Parban days for which they were properly remunerated. But as the shebait of the plaintiff deity ceased to give them renumeration and scolded them, they ceased to beat Khol before the plaintiff deity from Jaistha 1347. They denied that there had been any forfeiture of the tenure. 5. The learned Munsif found that the tenancy was of very long standing, but that no document was forthcoming to show how or when the grant to the defendant deity was made. He also found that there was no evidence to show whether the plaintiff deity or the defendant deity first acquired interest in these lands. The only satisfactory evidence regarding the conditions of the tenancy was to be found in the settlement record. According to the settlement record the defendant deity had Mokurari tenure right under the plaintiff in the lands in suit. The rent payable was shown as Re. The only satisfactory evidence regarding the conditions of the tenancy was to be found in the settlement record. According to the settlement record the defendant deity had Mokurari tenure right under the plaintiff in the lands in suit. The rent payable was shown as Re. 1 per annum there was an entry in the Settlement record to the effect that in addition to the payment of rent Khol badya must be performed before the plaintiff deity on Parva days. 6. The learned Munsif accepted the entry in the Settlement record as correct. But he geld further that in the absence of evidence to the contrary it must be presumed that the defendant deity acquired his mokurari tenure after the plaintiff deity had acquired debuttar interest in the land, and that the shebait for the time being, who had granted the mokurari tenure had no power to grant a permanent tenure except for legal necessity. As there was no evidence of such legal necessity, the present shebait was entitled to avoid the tenure and resume possession of the suit lands, accordingly (he?) decreed the suit with costs. 7. The defendant deity appealed and the appeal was heard by the Subordinate Judge from first Court Midnapore. The learned Subordinate Judge held that the plaintiff in his pleadings had not made out a case that if the defendant deity held a mokurari tenure as stated in the Settlement record, then inasmuch as it was granted by a predecessor Sebait without legal necessity, the present Sebait was entitled to avoid the tenure and resume possession of the land. 8. Consequently, the learned Subordinate Judge held that the learned Munsif was wrong in decreeing the suit for the reasons given by him. Mr. Gupta for the appellant in Second Appeal did not challenge this part of the judgment of the Court of appeal below. 9. The learned Subordinate Judge then found, in agreement with the learned Munsif that the entry in the Settlement record was correct and that the rent payable for the tenure was Re. 1 per annum together with service to the plaintiff deity. In other words, the defendant did not possess the lands in lieu of wages, but was a tenant liable to pay rent, and the rent consisted of services as well as money. 1 per annum together with service to the plaintiff deity. In other words, the defendant did not possess the lands in lieu of wages, but was a tenant liable to pay rent, and the rent consisted of services as well as money. He held further that it is improbable that the grantor of the tenancy in suit intended that the land granted to the deity for its daily worship and maintenance would be resumable if the Sebaits thereof made default, in performing the service burdened with the estate. 10. The learned Subordinate Judge allowed the appeal with coats of both Courts and dismissed the suit. 11. The plaintiff deity has brought this second appeal. Mr. Gupta for the appellant contended that when a grant of this nature is made, and the grantee is unwilling or unable to perform the services required of him, the grantor is entitled to resume the land; and be relied for this proposition on the decision of the Judicial Committee in Sri Raja Venkata Narasinha Appa Rao Bahadur Zemindar and another v. Sri Raja Sobhanadri Appa Rao Bahadur Zemindar and others, 33 I.A. 46 : (29 Mad. 52 P.C.). 12. In that case the proposition is not stated in the form suggested by Mr. Gupta. Actually the converse of the proposition is stated. Their Lordships observed it is well settled that where lands are held upon such a grant as long as the holders of those grants are willing and able to perform the services, the zemindar has no right to put an end to the tenure whether the services are required or not. In my opinion, it does not follow from this that when the holders of the grant are unable or unwilling to perform the services, the zemindar necessarily has the right to put in end of the tenure. It seems to me that this must depend on the terms of the agreement made when the grant was given. It may be made a term of the agreement that on failure to perform the services the grantor shall be entitled to put an end to the tenure; but unless this be made a term of the agreement, I do not see why such a consequence should follow. In these cases, the services form part of the rent and mere failure to pay rent on demand does not ordinarily entail forfeiture of the tenancy. In these cases, the services form part of the rent and mere failure to pay rent on demand does not ordinarily entail forfeiture of the tenancy. I think the learned Subordinate Judge was right in holding that it could not have been the intention of the grantor in the present case that the land would be resumable if the Sebaits of the tenant deity failed to perform the services and that therefore this could not have, been a term of the agreement. 13. In any case there is no evidence that it was a term of the agreement. I hold therefore that the suit was rightly dismissed and I order that this appeal be dismissed with costs. 14. Leave to appeal under Cl. 15, Letters Patent, prayed for is refused.